AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 22, 1999
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
COCA-COLA BOTTLING CO. CONSOLIDATED
(Exact name of Registrant as specified in its charter)
1900 REXFORD ROAD,
CHARLOTTE, NORTH CAROLINA 28211
DELAWARE (704) 551-4400 56-0950585
(State or other jurisdiction (Name, address, including zip code, (I.R.S. Employer
of incorporation or organization) and telephone number, including area code, Identification No.)
of Registrant's principal executive offices)
---------------
DAVID V. SINGER
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
COCA-COLA BOTTLING CO. CONSOLIDATED
1900 REXFORD ROAD, CHARLOTTE, NORTH CAROLINA 28211
(704) 551-4400
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
STEVEN R. BARRETT, ESQ. JOHN W. WHITE, ESQ.
WITT, GAITHER & WHITAKER, P.C. CRAVATH, SWAINE & MOORE
1100 SUNTRUST BANK BLDG. WORLDWIDE PLAZA, 825 EIGHTH AVENUE
CHATTANOOGA, TENNESSEE 37402 NEW YORK, NEW YORK 10019
(423) 265-8881 (212) 474-1000
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
CALCULATION OF REGISTRATION FEE
============================== ================== =================== =================== ===================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(2) REGISTRATION FEE
- ------------------------------ ------------------ ------------------- ------------------- -------------------
Debt Securities(4) (3)
- ------------------------------ ------------------ ------------------- ------------------- -------------------
Preferred Stock(5) (3) (3) (3) (3)
- ------------------------------ ------------------ ------------------- ------------------- -------------------
Common Stock(6) (3)
- ------------------------------ ------------------ ------------------- ------------------- -------------------
Class C Common Stock(7) (3)
- ------------------------------ ------------------ ------------------- ------------------- -------------------
Total $600,000,000(8)(9) 100% $600,000,000(8)(9) $166,800(9)
============================== ================== =================== =================== ===================
(1) The proposed maximum offering price per unit will be determined from time
to time by the Registrant in connection with the issuance by the
Registrant of the securities registered hereunder.
(2) Estimated for the purpose of computing the registration fee.
(CONTINUED ON NEXT PAGE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(CONTINUED FROM PREVIOUS PAGE)
(3) Not applicable pursuant to General Instruction II.D. of Form S-3.
(4) Subject to note (8) below, there is being registered hereunder an
indeterminate principal amount of Debt Securities. If any Debt Securities
are issued at an original issue discount, then the offering price shall be
in such greater principal amount as shall result in an aggregate initial
offering price for such securities (excluding any securities previously
registered under the Securities Act) not to exceed $600,000,000 less the
dollar amount of any securities previously issued hereunder.
(5) Subject to note (8) below, such indeterminate number of shares of
Convertible Preferred Stock, par value $100 per share, Non-Convertible
Preferred Stock, par value $100 per share, and Preferred Stock, par value
$0.01 per share, as may, from time to time, be issued at indeterminate
prices.
(6) Subject to note (8) below, such indeterminate number of shares of Common
Stock, par value $1.00 per share, as may, from time to time, be issued at
indeterminate prices including Common Stock issuable upon conversion of
Debt Securities or Preferred Stock.
(7) Subject to note (8) below, such indeterminate number of shares of Class C
Common Stock, par value $1.00 per share, as may, from time to time, be
issued at indeterminate prices, including Class C Common Stock issuable
upon conversion of Debt Securities or Preferred Stock.
(8) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement, and not
previously registered under the Securities Act, exceed $600,000,000. The
aggregate amount of Common Stock and Class C Common Stock registered
hereunder is further limited to that which is permissible under Rule
415(a)(4) under the Securities Act of 1933. The securities registered
hereunder may be sold separately or as units with other securities
registered hereunder.
(9) In accordance with Rule 429 under the Securities Act, the Prospectus
included herein is a combined prospectus which also relates to the
Registrant's prior Registration Statement on Form S-3, File No. 33-54657
(the "Prior Registration Statement"). This Registration Statement, which
is a new registration statement, also constitutes the first post-effective
amendment to the Prior Registration Statement. Such post-effective
amendment shall hereafter become effective concurrently with the
effectiveness of this Registration Statement in accordance with Section
8(a) of the Securities Act. The amount of securities eligible to be sold
under the Prior Registration Statement ($200,000,000 as of January 22,
1999) shall be carried forward to this Registration Statement. The amount
of the filing fee associated with such securities that was previously paid
with the Prior Registration Statement is $68,965.52.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
PROSPECTUS
[LOGO]
COCA-COLA BOTTLING CO.
CONSOLIDATED
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
CLASS C COMMON STOCK
---------------
Coca-Cola Bottling Co. Consolidated (the "COMPANY", which may be referred
to herein as "we" or "us"), is a Delaware corporation and is the second largest
Coca-Cola bottler in the United States. The Company's principal executive
offices are located at 1900 Rexford Road, Charlotte, North Carolina, 28211,
Telephone (704) 551-4400. This Prospectus may be used by the Company to offer
and sell, together or separately, one or more of the following types of its
securities (collectively, the "SECURITIES"):
o Debt Securities (in one or more series)
o Preferred Stock (in one or more classes or series)
o Common Stock, $1.00 par value per share
o Class C Common Stock, $1.00 par value per share
These Securities will have an aggregate initial public offering price not
to exceed $800,000,000, and will be offered and sold at prices and on terms to
be determined at the time of sale. The specific terms of the Securities for
which this Prospectus is being delivered (the "OFFERED SECURITIES") will be set
forth in an accompanying supplement to this Prospectus (the "PROSPECTUS
SUPPLEMENT"). These terms may include, where applicable, the initial public
offering price of the Offered Securities, the net proceeds to the Company and
whether the Offered Securities will be listed on any securities exchange.
As described in more detail in the Prospectus Supplement, the Securities
may be offered through an underwriter or underwriting syndicates represented by
one or more managing underwriters, or through dealers. The Securities may also
be sold directly or through agents to investors. See "PLAN OF DISTRIBUTION".
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF OFFERED SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
---------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
---------------
THE DATE OF THIS PROSPECTUS IS JANUARY 22, 1999.
ABOUT THIS PROSPECTUS
This Prospectus is part of a Registration Statement that we filed with the
Securities and Exchange Commission (the "COMMISSION" or "SEC") utilizing a
"shelf" registration process. Under this shelf process, we may from time to
time over approximately the next two years, sell any combination of the
securities described in this Prospectus in one or more offerings up to a total
dollar amount of $800,000,000 or the equivalent of this amount in foreign
currencies or foreign currency units.
This Prospectus provides you with a general description of the securities
we may offer. Each time we sell securities, we will provide a Prospectus
Supplement that will contain specific information about the terms of that
offering. The Prospectus Supplement also may add, update or change information
contained in this Prospectus. You should read both this Prospectus and any
Prospectus Supplement together with additional information described under the
heading "Where You Can Find More Information About the Company" beginning below
on page 2 of this Prospectus.
YOU SHOULD RELY ONLY ON THE INFORMATION OR REPRESENTATIONS INCORPORATED BY
REFERENCE OR PROVIDED IN THIS PROSPECTUS AND IN THE ACCOMPANYING PROSPECTUS
SUPPLEMENT. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH DIFFERENT
INFORMATION. YOU MAY OBTAIN COPIES OF THE REGISTRATION STATEMENT, OR OF ANY
DOCUMENT WHICH WE HAVE FILED AS AN EXHIBIT TO THE REGISTRATION STATEMENT OR TO
ANY OTHER SEC FILING, EITHER FROM THE SEC OR FROM THE CHIEF FINANCIAL OFFICER
OF THE COMPANY AS DESCRIBED BELOW. WE ARE NOT MAKING AN OFFER OF THESE
SECURITIES IN ANY STATE WHERE THE OFFER IS NOT PERMITTED. YOU SHOULD NOT ASSUME
THAT THE INFORMATION IN THIS PROSPECTUS OR IN THE ACCOMPANYING PROSPECTUS
SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATES PRINTED ON THE FRONT
OF EACH SUCH DOCUMENT.
WHERE YOU CAN FIND MORE
INFORMATION ABOUT THE COMPANY
The Company files annual, quarterly and special reports, proxy statements
and other information with the SEC. You may read and copy any document we file
at the SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. Our SEC filings also are available
to the public from the SEC's worldwide web site at "http://www.sec.gov."
The SEC allows us to "incorporate by reference" into this Prospectus the
information we file with them, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this Prospectus, and
information that we file later with the SEC will automatically update and
supersede this information. The "file number" used by the SEC to identify
documents filed by the Company is 0-9286. We incorporate by reference the
documents listed below and any future filings we will make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934:
(1) the Company's Annual Report on Form 10-K for the fiscal year ended
December 28, 1997;
(2) the Company's Quarterly Reports on Form 10-Q for the quarterly periods
ended March 29, 1998, June 28, 1998 and September 27, 1998; and
(3) the description of the Company's Common Stock contained in its
registration statement on Form 8-A filed January 29, 1973, as updated
from time to time by the Company's subsequent filings with the
Securities and Exchange Commission.
You may request a copy of these filings, at no cost, by writing or
telephoning the Company's Chief Financial Officer at the following address:
David V. Singer
Vice President and Chief Financial Officer
Coca-Cola Bottling Co. Consolidated
1900 Rexford Road
Charlotte, North Carolina 28211
Telephone: (704) 551-4400
2
FORWARD-LOOKING STATEMENTS
This Prospectus, including the information incorporated by reference
herein, information included in, or incorporated by reference from, future
filings by the Company with the Commission, as well as information contained in
written material, press releases and oral statements issued by or on behalf of
the Company, contains, or may contain, certain statements that may be deemed to
be "forward-looking statements" within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act. Such "forward-looking
statements" include information relating to, among other matters, the Company's
future prospects, developments and business strategies for its operations.
These forward-looking statements are identified by their use of terms and
phrases such as "expect", "estimate", "project", "believe", and similar terms
and phrases. Such forward-looking statements are contained in various sections
of this Prospectus and in the documents incorporated herein by reference. These
statements are based on certain assumptions and analyses made by the Company in
light of its experience and perception of historical trends, current
conditions, expected future developments and other factors they believe are
appropriate under the circumstances, and involve risks and uncertainties that
may cause actual future activities and results of operations to be materially
different from that suggested or described in this Prospectus or in such other
documents. These risks include, but are not limited to (A) risks associated
with any changes in the historical level of marketing support which the Company
receives from The Coca-Cola Company, (B) risks associated with interruptions in
the Company's business operations as a result of any failure to adequately
correct the Year 2000 computer problem in any systems of the Company or one of
its major suppliers or customers and (C) other risks detailed from time to time
in the Company's filings with the Securities and Exchange Commission. Investors
are cautioned that any such statements are not guarantees of future
performance. Should one or more of these risks or uncertainties materialize, or
should underlying assumptions prove incorrect, actual results may vary from
those expected, estimated or projected.
THE COMPANY
The Company produces, markets and distributes carbonated and noncarbonated
beverages, primarily products of The Coca-Cola Company. The Company has been in
the soft drink manufacturing business since 1902. The Company has grown
significantly since 1984. During this time period, the Company has made several
acquisitions which have resulted in its becoming the second largest Coca-Cola
bottler in the United States.
At present, the Company (including its subsidiaries and its 50% owned
affiliate) holds rights under bottle contracts to produce and market carbonated
soft drinks, primarily products of The Coca-Cola Company, within certain
territories in the states of Alabama, Florida, Georgia, Kentucky, Mississippi,
North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia and
West Virginia. The Company also produces and distributes certain other brands
of soft drinks within such territories. A portion of these soft drink
distribution and marketing operations (primarily in parts of North Carolina and
South Carolina) are conducted through Piedmont Coca-Cola Bottling Partnership
("PIEDMONT"), a joint venture owned equally by the Company and The Coca-Cola
Company through their respective subsidiaries. The Company sold and contributed
certain territories to Piedmont upon its formation. The Company currently
provides part of the finished product requirements for Piedmont and receives a
fee for managing Piedmont's operations under a management agreement.
The Company considers selective acquisitions for additional territories on
an ongoing basis. To achieve its goals, the Company may engage in further
purchases of bottling contract rights and entities possessing such rights and
other related transactions designed to facilitate such purchases.
The Company's principal executive offices are located at 1900 Rexford
Road, Charlotte, North Carolina, 28211, and its telephone number is (704)
551-4400.
USE OF PROCEEDS
The net proceeds we receive from the sale of Securities offered by this
Prospectus and the accompanying Prospectus Supplement will be used for general
corporate purposes. General corporate purposes may include the repayment of
debt, investments in or extensions of credit to our subsidiaries, the financing
of future acquisitions or capital expenditures, and working capital. The net
proceeds also may be invested temporarily or applied to repay short-term debt
until they are used for their stated purpose. The Company is engaged in an
ongoing program of selective acquisitions for additional territories and
regularly evaluates the desirability of making such acquisitions. Except as may
be specifically set forth in the
3
accompanying Prospectus Supplement, the Company has no understandings or
agreements with respect to any specific significant acquisition or investment.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The consolidated ratios of earnings to fixed charges for the Company are as
follows:
NINE MONTHS
ENDED FISCAL YEAR ENDED1
--------------------------------- ------------------------------------------------------
SEPT. 27, 1998 SEPT. 28, 1997 1997 1996 1995 1994 1993
---------------- ---------------- ---------- ---------- ---------- ---------- ----------
Ratio of Earnings to Fixed Charges .. 1.57x 1.67x 1.49x 1.54x 1.51x 1.54x 1.59x
- ---------
1 The Company's fiscal year ends on the Sunday nearest December 31.
The above ratios have been computed using amounts for the Company, its
consolidated subsidiaries and its proportionate share of losses incurred by its
fifty percent (50%) owned affiliate. Earnings available for fixed charges
represent earnings before income taxes, extraordinary items and fixed charges.
Fixed charges represent interest incurred plus that portion of rental expense
deemed to be the equivalent of interest.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities which the Company may offer under this Prospectus will
be issued under an Indenture dated as of July 20, 1994 between the Company and
NationsBank of Georgia, National Association, as Trustee (the "TRUSTEE"), as
supplemented and restated by a Supplemental Indenture dated March 3, 1995
between the Company and the Trustee. All references in this Prospectus and in
the accompanying Prospectus Supplement to the "Indenture" are to the Indenture
as so supplemented. By mutual agreement among the parties involved, as of
September 15, 1995, Citibank, N.A. succeeded to all of the rights, powers,
duties and obligations of NationsBank of Georgia, N.A. as Trustee under the
Indenture. All references in this Prospectus and in the accompanying Prospectus
Supplement to the "Trustee" refer to Citibank, N.A. and to any other entity
that subsequently may replace Citibank, N.A. as Trustee under the Indenture.
The following summaries of certain provisions of the Indenture are not
complete. These summaries are qualified in their entirety by reference to the
full provisions of the Indenture. The Indenture is filed as an exhibit to the
registration statement of which this Prospectus is a part (Registration
Statement File No. 333- ; the "REGISTRATION STATEMENT"). Section references
set forth below or in any accompanying Prospectus Supplement refer to such
Sections in the Indenture, which Sections are incorporated herein or therein by
reference. Capitalized terms, unless otherwise defined herein or in any
Prospectus Supplement, have the meanings assigned to them in the Indenture.
Such definitions are incorporated herein by reference.
The Debt Securities may be issued from time to time in one or more series.
The Prospectus Supplement relating to each such series will describe the
particular terms of that series of Debt Securities.
GENERAL
The Indenture does not limit the aggregate amount of Debt Securities that
the Company may issue. We may issue Debt Securities (in one or more series) up
to the principal amount authorized by us from time to time for each such
series. The Debt Securities will be unsecured obligations of the Company and
will rank equally and ratably with other unsecured and unsubordinated
indebtedness of the Company.
Additional terms to be described in an accompanying Prospectus Supplement
for any series of Debt Securities with respect to which this Prospectus is
being delivered ("OFFERED DEBT SECURITIES") are:
o the title and aggregate principal amount of the Offered Debt Securities;
o whether the Offered Debt Securities will be issued in whole or in part in
global form and, if so, the name of the Depositary;
o the issue price or prices for the Offered Debt Securities (expressed as a
percentage of their aggregate principal amount);
o the date or dates on which the principal of the Offered Debt Securities
is payable;
4
o the applicable interest rate or rates (if any), and the date or dates
from which any such interest will accrue;
o the Interest Payment Dates on which any such interest will be payable and
the Regular Record Date with respect thereto;
o any obligation of the Company to redeem or repay the Offered Debt
Securities pursuant to sinking fund or similar provisions, or at the
option of a holder of such securities, and the prices and other terms and
conditions applicable to any such redemption or repurchase;
o each office or agency for the payment of principal and any premium and
interest on the Offered Debt Securities (subject to the terms of the
Indenture as described below under "Payment and Paying Agents");
o each office or agency where the Offered Debt Securities may be presented
for registration of transfer or exchange (subject to the terms of the
Indenture as described below under "Denominations; Registration of
Transfers and Exchange");
o the terms and conditions upon which the Offered Debt Securities may be
redeemed, in whole or in part, at the option of the Company, or repaid at
the option of the Holder, prior to Stated Maturity (including, in the
case of an Original Issue Discount Security, the information necessary to
determine the amount due upon redemption or repayment);
o whether the Offered Debt Securities will be issuable in any denominations
other than $1,000 and any integral multiple thereof;
o the portion of the principal amount of Offered Debt Securities that shall
be payable upon declaration of acceleration of maturity (if other than
the principal amount thereof);
o the application, if any, of either or both of the sections of the
Indenture relating to defeasance to the Offered Debt Securities; and
o any other terms of the Offered Debt Securities not inconsistent with the
provisions of the Indenture.
Some of the Debt Securities may be issued as Original Issue Discount
Securities. Original Issue Discount Securities bear no interest or bear
interest at a below-market rate and will be sold at a substantial discount
below their stated principal amount. Special federal income tax considerations
applicable to any Debt Securities issued at an original issue discount,
including Original Issue Discount Securities, will be described in the
accompanying Prospectus Supplement relating thereto. Persons considering the
purchase, ownership or disposition of any Original Issue Discount Securities
should consult their own tax advisors concerning the United States Federal
income tax consequences to them with regard to such purchase, ownership or
disposition in light of their particular situations, as well as any
consequences arising under the laws of any other taxing jurisdiction.
DENOMINATIONS; REGISTRATION OF TRANSFERS AND EXCHANGE
Debt Securities of a given series will be issued only in fully registered
form without coupons in denominations of $1,000 and integral multiples thereof,
unless otherwise specified in the related Prospectus Supplement. (SECTION 302)
Debt Securities may be presented for registration of transfer or for
exchange (duly endorsed or accompanied by a written instrument of transfer duly
executed), at the office of the Security Registrar or at the office of any
transfer agent designated by the Company for any series of Debt Securities and
referred to in the applicable Prospectus Supplement. Such transfer or exchange
will be made without service charge and upon payment of any taxes and other
governmental charges as described in the Indenture. The Trustee is the initial
Security Registrar. (SECTION 305) If a Prospectus Supplement states that the
Company has designated any transfer agents (in addition to the Security
Registrar) with respect to any series of Debt Securities, we may at any time
rescind the designation of such transfer agent(s) or approve a change in the
location through which such transfer agent(s) act. The Company, however, will
be required to maintain a transfer agent in each place where principal and any
premium and interest in respect of any such series are payable. The Company may
at any time designate additional transfer agents with respect to any series of
Debt Securities. (SECTION 1002)
If we redeem Debt Securities of any series, the Company will not be
required to (A) issue, register the transfer of or exchange Debt Securities of
such series during a period beginning at the opening of business 15 days before
the mailing of the applicable notice of redemption and ending at the close of
business on the day of such mailing, or (B) register the transfer of or
exchange any Debt Security, or portion thereof, called for redemption, except
the unredeemed portion of any Debt Security being redeemed in part. (SECTION
305)
5
PAYMENT AND PAYING AGENTS
Payment of principal of and any premium and interest on Debt Securities
will be made at the office of a Paying Agent or Paying Agents designated by the
Company from time to time. We also may elect to pay interest by check mailed to
the address of the Person entitled thereto as such address appears in the
Security Register. The Company will pay any interest due on Debt Securities on
any interest payment date to the Person in whose name such Debt Security is
registered at the close of business on the Regular Record Date for such
interest. (SECTION 307)
The principal office of the Paying Agent will be designated as the
Company's Paying Agent for payments with respect to Debt Securities. Any other
Paying Agents initially designated by the Company for the Debt Securities will
be named in an applicable Prospectus Supplement. The Company may at any time
designate additional Paying Agents or rescind the designation of any Paying
Agent or approve a change in the office through which any Paying Agent acts,
except that we will be required to maintain a Paying Agent in each place where
principal and any premium or interest in respect of such series of Debt
Securities are payable. (SECTION 1002)
All moneys paid by the Company to the Trustee or a Paying Agent for the
payment of principal of and any premium or interest on any Debt Security which
remain unclaimed for two years after such amounts have become due and payable
may be paid to the Company. Thereafter, the holder of such Debt Security, as a
general unsecured creditor, may look only to the Company for payment of such
amounts. (SECTION 1003)
GLOBAL SECURITIES
The Debt Securities of any series may be issued in the form of one or more
fully registered securities in global form (a "GLOBAL SECURITY"). Any such
Global Security will be deposited with, or on behalf of, a depositary (the
"DEPOSITARY") identified in the Prospectus Supplement relating to such series.
Such Global Securities will be issued in a denomination or aggregate
denominations in an amount equal to the aggregate principal amount of all
outstanding Debt Securities of the series represented by such Global Security
or Securities. Unless and until it is exchanged in whole or in part for Debt
Securities in definitive registered form, a Global Security may not be
transferred except as a whole by the Depositary for such Global Security to (A)
a nominee of such Depositary (or between such nominees) or (B) to a successor
of such Depositary or a nominee of such successor Depositary. (SECTION 305)
The specific terms of the depositary arrangement with respect to a series
of Debt Securities will be described in the Prospectus Supplement relating to
such series. The Company anticipates that the following provisions will apply
to all depositary arrangements.
Upon the issuance of a Global Security, and the deposit of such Global
Security with or on behalf of the applicable Depositary, such Depositary will
credit, on its book-entry registration and transfer system, the respective
principal amounts of the individual Debt Securities represented by such Global
Security to the accounts of institutions that have accounts with such
Depositary or its nominee ("PARTICIPANTS"). Such accounts will be designated
(A) by the underwriters or agents for such Debt Securities or (B) by the
Company, if such Debt Securities are offered and sold directly by the Company.
Ownership of beneficial interests in such Global Security will be limited to
participants or Persons that may hold interests through participants. The
beneficial interests of participants in such Global Security will be shown on,
and the transfer of such ownership interest will be effected only through,
records maintained by the Depositary or its nominee for such Global Security.
The ownership of beneficial interests in such Global Security by Persons that
hold through participants will be shown on, and the transfer of that ownership
interest will be effected only through, records maintained by such participant.
The laws of some states require that certain purchasers of securities take
physical delivery of such securities in definitive form. The limitations
imposed by these laws may impair the ability of owners to transfer beneficial
interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner or Holder of such Global Security, such Depositary or such
nominee, as the case may be, will be considered the sole owner or Holder of the
individual Debt Securities represented by such Global Security for all purposes
under the Indenture. Except as set forth below, owners of beneficial interests
in a Global Security will not be entitled to have any of the individual Debt
Securities of the series represented by such Global Security registered in
their names, will not receive or be entitled to receive physical delivery of
Debt Securities of such series in definitive form and will not be considered
the Holders thereof for any purposes under the Indenture. Accordingly, each
Person owning a beneficial interest in such Global Security must rely on the
procedures of the Depositary and, if such Person is not a participant, on the
procedures of the participant through which such Person owns its interest, to
exercise any rights of a Holder under the Indenture. The Indenture provides
that the Depositary may grant proxies and otherwise authorize participants to
give or take any request, demand,
6
authorization, direction, notice, consent, waiver or other action which a
Holder is entitled to give or take under the Indenture. (SECTION 104) The
Company understands that, under existing industry practices, if the Company
requests any action of Holders or if an owner of a beneficial interest in such
Global Security desires to give any notice or take any action that a Holder is
entitled to give or take under the Indenture, the Depositary would authorize
the participants to give such notice or take such action, and participants
would authorize beneficial owners owning through such participants to give such
notice or take such action or would otherwise act upon the instructions of
beneficial owners who own through them.
Principal, premium, if any, and interest payments on individual Debt
Securities represented by a Global Security held by a Depositary or its nominee
will be made by us to the Depositary or its nominee, as the case may be, as the
registered owner of such Global Security. None of the Company, the Trustee or
any Paying Agent for such Debt Securities will have any responsibility or
liability for any aspect of the records of the Depositary or any nominee or
participant relating to, or payments made on account of, beneficial ownership
interests in any such Global Security or Securities or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests. (SECTION 308)
The Company understands that, under existing industry practices, the
Depositary for a series of Debt Securities or its nominee, upon receipt of any
payment of principal, premium or interest with respect to a definitive Global
Security representing any of such Debt Securities, will credit immediately
participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such Global Security
as shown on the records of the Depositary or its nominee. The Company also
expects that payments by participants to owners of beneficial interests in such
Global Security held through such participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name",
and will be the responsibility of such participants.
If the Depositary for a series of Debt Securities is at any time unwilling
or unable to continue as Depositary and a successor Depositary is not appointed
by the Company within 90 days, the Company will issue individual Debt
Securities of such series in definitive form in exchange for the Global
Security or Securities representing such series of Debt Securities. In
addition, we may at any time and in our sole discretion (subject to any
limitations described in the Prospectus Supplement relating to such Debt
Securities) determine not to have the Debt Securities of a series represented
by one or more Global Securities. In such event, the Company will issue
individual Debt Securities of such series in definitive form in exchange for
the Global Security or Securities representing such series of Debt Securities.
(SECTION 305)
Further, if we so specify with respect to the Debt Securities of a series,
an owner of a beneficial interest in a Global Security representing Debt
Securities of such series may, on terms acceptable to the Company and to the
Depositary for such Global Security, receive Debt Securities of such series in
definitive form. In any such instance, an owner of a beneficial interest in a
Global Security will be entitled to have Debt Securities of the series
represented by such Global Security equal in principal amount to such
beneficial interest registered in such owner's name and will be entitled to
physical delivery of such Debt Securities in definitive form. Any Debt
Securities so issued in definitive form will, except as set forth in the
applicable Prospectus Supplement, be issued in denominations of $1,000 and
integral multiples thereof and will be issued in registered form only without
coupons. (SECTION 305)
CERTAIN COVENANTS OF THE COMPANY
CERTAIN DEFINITIONS APPLICABLE TO COVENANTS (SECTION 101):
o "SUBSIDIARY" of the Company is defined as a corporation more than 50% of
the voting stock of which is owned, directly or indirectly, by the Company
and/or one or more Subsidiaries of the Company.
o "RESTRICTED SUBSIDIARY" is defined as a Subsidiary of the Company which
(1) owned a Principal Property as of the date of the Indenture, or (2)
acquires a Principal Property after such date from the Company or a
Restricted Subsidiary other than for cash equal to such property's fair
market value as determined by the Board of Directors of the Company, or
(3) acquires a Principal Property after such date by purchase with funds
substantially all of which are provided by the Company or a Restricted
Subsidiary or with the proceeds of indebtedness for money borrowed, which
indebtedness is guaranteed in whole or in part by the Company or a
Restricted Subsidiary, or (4) is a party to any contract with respect to
the bottling, canning, packaging or distribution of soft drinks or soft
drink products (unless such contract, in the opinion of the Board of
Directors of the Company, is not materially important to the total
business conducted by the Company and its Subsidiaries as an entirety).
o "PRINCIPAL PROPERTY" is defined to mean any bottling, distribution or
other facility, together with the land upon which it is erected and
fixtures comprising a part thereof, owned or leased by the Company or any
Subsidiary, the
7
gross book value of which (without deduction of any depreciation reserves)
on the date as of which the determination is being made exceeds 3% of
Consolidated Net Tangible Assets (other than any such facility which, in
the opinion of the Board of Directors of the Company, is not materially
important to the total business conducted by the Company and its
Subsidiaries as an entirety).
o "ATTRIBUTABLE DEBT" is defined to mean the total net amount of rent
required to be paid during the remaining term of certain leases,
discounted at the rate per annum equal to the weighted average interest
rate borne by the Debt Securities.
o "CONSOLIDATED NET TANGIBLE ASSETS" is defined to mean the aggregate
amount of assets (less applicable reserves and other properly deductible
items) after deducting (1) all current liabilities, and (2) goodwill and
like intangibles of the Company and its consolidated subsidiaries.
RESTRICTIONS ON DEBT
The Company:
(1) will not itself, and will not permit any Restricted Subsidiary to,
incur or guarantee any evidence of any indebtedness for money borrowed
("DEBT") secured by a mortgage, pledge or lien ("MORTGAGE") on any
Principal Property of the Company or any Restricted Subsidiary, or on any
share of capital stock or Debt of any Restricted Subsidiary, without
securing or causing such Restricted Subsidiary to secure the Debt
Securities equally and ratably with (or, at the Company's option, prior
to) such secured Debt, and
(2) will not permit any Restricted Subsidiary to incur or guarantee any
unsecured Debt or to issue any preferred stock, in each instance unless
the aggregate amount of (A) all such Debt, (B) the aggregate preferential
amount to which such preferred stock would be entitled on any involuntary
distribution of assets and (C) all Attributable Debt of the Company and
its Restricted Subsidiaries with respect to sale and leaseback
transactions involving Principal Properties (with the exception of
transactions which are excluded as described in "Restrictions on Sales
and Leasebacks" below), would not exceed 10% of Consolidated Net Tangible
Assets.
The above restrictions DO NOT apply to any of the following, which will be
excluded from Debt in any computation under such restrictions:
o Debt secured by Mortgages on property of, or on any shares of capital
stock or Debt of, any corporation, and unsecured Debt of any corporation,
existing at the time such corporation becomes a Restricted Subsidiary,
o Debt secured by Mortgages in favor of the Company or a Restricted
Subsidiary and unsecured Debt payable to the Company or a Restricted
Subsidiary,
o Debt secured by Mortgages in favor of governmental bodies to secure
progress or advance payments,
o Debt secured by Mortgages on property, shares of capital stock or Debt
existing at the time of acquisition thereof (including acquisition through
merger or consolidation) or incurred within certain time limits to finance
the acquisition thereof or construction thereon,
o unsecured Debt incurred within certain time limits to finance the
acquisition of property, shares of capital stock or Debt (other than
shares of capital stock or Debt of the Company) or to finance construction
on such property,
o Debt secured by Mortgages securing industrial revenue bonds, or
o any extension, renewal or replacement of any Debt referred to in any of
the foregoing exceptions.
In addition, the above restrictions do not apply to any issuance of
preferred stock by a Restricted Subsidiary to the Company or another
Restricted Subsidiary, provided that such preferred stock shall not
thereafter be transferrable to any person other than the Company or a
Restricted Subsidiary. (SECTION 1006)
RESTRICTIONS ON SALES AND LEASEBACKS
Neither the Company nor any Restricted Subsidiary may enter into any sale
and leaseback transaction involving any Principal Property, unless, after
giving effect to such transaction, the aggregate amount of all Attributable
Debt of the Company and its Restricted Subsidiaries with respect to all such
transactions plus all Debt to which SECTION 1006 is applicable (as described in
"Restrictions on Debt" above) would not exceed 10% of Consolidated Net Tangible
Assets.
8
This restriction does not apply to any of the following, which shall be
excluded in any computation of Attributable Debt under such restriction,
Attributable Debt with respect to any sale and leaseback transaction if:
o the lease is for a period not in excess of three years, including
renewal rights,
o the sale or transfer of the Principal Property is made within a specified
period after the later of its acquisition or construction,
o the lease secures or relates to industrial revenue or pollution control
bonds,
o the transaction is between the Company and a Restricted Subsidiary or
between Restricted Subsidiaries or
o the Company or a Restricted Subsidiary, within 180 days after the sale or
transfer is completed, applies to the retirement of Funded Debt of the
Company or a Restricted Subsidiary ranking on a parity with or senior to
the Debt Securities, or to the purchase of other property which will
constitute Principal Property of a value at least equal to the value of
the Principal Property leased in such sale and leaseback transaction, an
amount not less than the greater of (A) the net proceeds of the sale of
the Principal Property so leased, or (B) the fair market value of the
Principal Property leased. In lieu of applying the proceeds of such sale
to the retirement of Funded Debt, the Company may receive credit for (1)
the principal amount of any Debt Securities (or other notes or debentures
constituting Funded Debt of the Company or a Restricted Subsidiary)
delivered within such 180-day period to the applicable trustee for
retirement and cancellation, and (b) the principal amount of any other
Funded Debt voluntarily retired within such 180-day period. (SECTION
1007)
EVENTS OF DEFAULT AND REMEDIES
The Indenture defines an "Event of Default" whenever used therein with
respect to Debt Securities of any series as one or more of the following
events:
(1) default in the payment of interest, if any, on Debt Securities of such
series for 30 days after becoming due;
(2) default in the payment of principal of (or premium, if any, on) Debt
Securities of such series when due;
(3) default in the deposit of any sinking fund when and as due by the
terms of Offered Debt Securities;
(4) default in the performance of any other covenant for 90 days after
notice;
(5) certain events of bankruptcy, insolvency or reorganization;
(6) a default under, or the acceleration of the maturity date of, any bond,
debenture, note or other evidence of indebtedness of the Company or any
Restricted Subsidiary (other than the Debt Securities of such series) or a
default under any indenture or other instrument under which any such
evidence of indebtedness has been issued or by which it is governed and
the expiration of any applicable grace period specified in such evidence
of indebtedness, indenture or other instrument, if the aggregate amount of
indebtedness with respect to which such default or acceleration has
occurred exceeds $1.0 million; and
(7) any other Event of Default provided with respect to Debt Securities of
such series.
If any Event of Default described above shall occur and be continuing,
then either the Trustee or the Holders of at least 25% in principal amount of
the outstanding Debt Securities of that series may declare the principal amount
(or, if any of the Offered Debt Securities are Original Issue Discount
Securities, such portion of the principal amount of such Debt Securities as may
be specified by the terms thereof) of all of the Offered Debt Securities to be
due and payable immediately. (SECTIONS 501 AND 502)
The Indenture provides that the Trustee, within 90 days after the
occurrence of a default with respect to any series of Debt Securities, shall
notify the Holders of Debt Securities of that series of all uncured defaults
known to it (the term default to mean any event specified above which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to the Offered Debt Securities). Except, however, in the case of
default in the payment of the principal of (or premium, if any) or interest on
any Debt Securities or in the payment of any sinking fund installment with
respect to the Offered Debt Securities, the Trustee is permitted to withhold
such notice if it in good faith determines that the withholding of such notice
is in the interest of the Holders of Debt Securities. (SECTION 602)
The Company is required annually to furnish the Trustee with a certificate
by certain officers of the Company stating whether or not, to the best of their
knowledge, the Company is in default in the fulfillment of its covenants under
the
9
Indenture. If there has been a default in the fulfillment of any such covenant,
the certificate must specify the nature and status of each such default.
(SECTION 1005)
The Holders of a majority in principal amount of the outstanding Offered
Debt Securities (voting as one class) will have the right, subject to certain
limitations, to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee with respect to the Offered Debt Securities, and to
waive certain defaults. (SECTIONS 512 AND 513)
The Indenture provides that, if an Event of Default shall occur and be
continuing, the Trustee shall exercise such of its rights and powers under the
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs. (SECTION 601)
Subject to such provisions, the Trustee will be under no obligation to
exercise any of its rights or powers under the Indenture at the request or
direction of any of the Holders of Debt Securities, unless such Holders first
offer to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction. (SECTION 603)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Indenture provides that the Company shall not consolidate with or
merge into, or transfer all or substantially all of its assets to, any person
unless:
(1) that person (including the successor corporation) is a corporation
organized under the laws of the United States of America or any State or
the District of Columbia;
(2) that person (including the successor corporation) assumes by
supplemental Indenture all of the Company's obligations on Debt
Securities outstanding at that time; and
(3) after giving effect thereto, no Event of Default, and no event which,
after notice or lapse of time, would become an Event of Default shall
have occurred and be continuing.
The Indenture further provides that no such consolidation or merger of the
Company with or into any other corporation and no conveyance or transfer of all
or substantially all of its property to any person may be made if, as a result
thereof, any Principal Property of the Company or any Restricted Subsidiary
would become subject to a Mortgage which is not expressly excluded from the
restrictions or permitted by the provisions of SECTION 1006 (see "Restrictions
on Debt") unless the Debt Securities are secured equally and ratably with (or,
at the Company's option, prior to) the Debt secured by such Mortgage by a lien
upon such Principal Property. (SECTION 801)
DEFEASANCE
The accompanying Prospectus Supplement will state whether any defeasance
provision will apply to any Offered Debt Securities which are the subject
thereof.
The Indenture provides, if such provision is made applicable to the Debt
Securities of any series pursuant to SECTION 301 of the Indenture, that the
Company may elect either:
(A) to defease and be discharged from any and all obligations with respect
to such Debt Securities (except for the obligation to register the
transfer or exchange of such Debt Securities, to replace temporary or
mutilated, destroyed, lost or stolen Debt Securities, to maintain an
office or agency in respect of the Debt Securities and to hold moneys for
payment in trust) ("DEFEASANCE") or
(B) to be released from its obligations with respect to such Debt
Securities under SECTIONS 501(5), 1006 and 1007 of the Indenture (being
the cross-default provisions described in clause (6) under "EVENTS OF
DEFAULT AND REMEDIES" and the restrictions described under "Restrictions
on Debt" and "Restrictions on Sales and Leasebacks", respectively)
("COVENANT DEFEASANCE"),
upon the deposit with the Trustee (or other qualifying trustee), in trust for
such purpose, of money and/or U.S. Government Obligations which, through the
payment of principal and interest in accordance with their terms, will provide
money in an amount sufficient to pay the principal of (and premium, if any) and
interest, if any, on such Debt Securities, and any mandatory sinking fund or
analogous payments thereon, on the scheduled due dates for such payments. In
the case of defeasance, the Holders of such Debt Securities will be entitled to
receive payments in respect of such Debt Securities solely from such trust.
Such a trust may only be established if, among other things, the Company has
delivered to the
10
Trustee an opinion of counsel (as specified in the Indenture) to the effect
that the Holders of such Debt Securities will not recognize income, gain or
loss for federal income tax purposes as a result of such defeasance or covenant
defeasance and will be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such
defeasance or covenant defeasance had not occurred. Such opinion, in the case
of defeasance under clause (A) above, must refer to and be based upon a ruling
of the Internal Revenue Service or a change in applicable federal income tax
law occurring after the date of the Indenture. The accompanying Prospectus
Supplement may further describe the provisions, if any, permitting such
defeasance or covenant defeasance with respect to the Debt Securities of a
particular series. (ARTICLE THIRTEEN)
MODIFICATION
Modifications and amendments of the Indenture may be made by the Company
and the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the outstanding Debt Securities issued under the
Indenture which are affected by the modification or amendment (which Holders,
in the case of a Global Security, shall be the Depositary appointed therefor),
provided that no such modification or amendment may, without the consent of
each Holder of any Debt Security affected thereby:
(1) change the Stated Maturity of the principal of, or any installment of
principal of or interest on, such Debt Security;
(2) reduce the principal amount of (or premium, if any) or the interest, if
any, on such Debt Security or the principal amount due upon acceleration
of an Original Issue Discount Security;
(3) change the place or currency of payment of principal (or premium, if
any) or interest, if any, on such Debt Security;
(4) impair the right to institute suit for the enforcement of any such
payment on or with respect to such Debt Security;
(5) reduce the above-stated percentage of Holders of Debt Securities
necessary to modify or amend the Indenture; or
(6) modify the foregoing requirements or reduce the percentage of
outstanding Debt Securities necessary to waive compliance with certain
provisions of the Indenture or for waiver of certain defaults. (SECTION
902)
THE TRUSTEE
Citibank, N.A., is the Trustee under the Indenture. The Company may
maintain deposit accounts and conduct other banking transactions with the
Trustee in the normal course of the Company's business.
DESCRIPTION OF PREFERRED STOCK
Under the Company's Restated Certificate of Incorporation (the
"CERTIFICATE OF INCORPORATION"), the Company's Board of Directors (without any
further vote or action by the Company's stockholders) may authorize the
issuance, in one or more series, of up to (A) 50,000 shares of Convertible
Preferred Stock having a par value of $100.00 per share; (B) 50,000 shares of
Non-Convertible Preferred Stock having a par value of $100.00 per share; and
(C) 20,000,000 shares of Preferred Stock having a par value of $0.01 per share
(collectively, the "PREFERRED STOCK"). The Board of Directors is authorized to
fix the number of shares, the relative powers, preferences and rights, and the
qualifications, limitations or restrictions applicable to each series of
Preferred Stock by resolution authorizing the issuance of such series. As of
the date of this Prospectus, there were no shares of Preferred Stock issued and
outstanding.
The description below sets forth certain general terms and provisions of
each of the three classes of the Company's Preferred Stock to which a
Prospectus Supplement may relate. The specific terms of any series of Preferred
Stock in respect of which this Prospectus is being delivered (the "OFFERED
PREFERRED STOCK") will be described in the accompanying Prospectus Supplement
relating to such Offered Preferred Stock. The following summaries of certain
provisions governing the Company's preferred stock are not complete. These
summaries are subject to, and are qualified in their entirety by reference to,
the Certificate of Incorporation and the certificate of designations relating
to each particular series of Offered Preferred Stock, which will be filed with
the Commission (and incorporated by reference in the Registration Statement) in
connection with such Offered Preferred Stock.
11
GENERAL
The Offered Preferred Stock, when issued in accordance with the terms of
the Certificate of Incorporation and of the applicable certificate of
designations and as described in the applicable Prospectus Supplement, will be
fully paid and non-assessable.
To the extent not fixed in the Certificate of Incorporation, the relative
rights, preferences, powers, qualifications, limitations or restrictions of the
Offered Preferred Stock of any series will be as fixed by the Board of
Directors pursuant to a certificate of designations relating to such series.
The Prospectus Supplement relating to the Offered Preferred Stock of each such
series shall specify the terms thereof, including:
(1) The class, series title or designation and stated value (if any) for
such Offered Preferred Stock;
(2) The maximum number of shares of Offered Preferred Stock in such series,
the liquidation preference per share and the offering price per share for
such series;
(3) The dividend preferences and the dividend rate(s), period(s) and/or
payment date(s) or method(s) of calculation thereof applicable to such
Offered Preferred Stock;
(4) The date from which dividends on such Offered Preferred Stock will
accumulate, if applicable, and whether dividends will be cumulative;
(5) The provisions for a retirement or sinking fund, if any, with respect
to such Offered Preferred Stock;
(6) The provisions for redemption, if applicable, of such Offered
Preferred Stock;
(7) The voting rights, if any, of shares of such Offered Preferred Stock;
(8) Any listing of such Offered Preferred Stock for trading on any
securities exchange or any authorization of such Offered Preferred Stock
for quotation in an interdealer quotation system of a registered national
securities association;
(9) The terms and conditions, if applicable, upon which such Offered
Preferred Stock will be convertible into, or exchangeable for, any other
securities of the Company, including the title of any such securities and
the conversion or exchange price therefor;
(10) A discussion of federal income tax considerations applicable to such
Offered Preferred Stock; and
(11) Any other specific terms, preferences, rights, limitations or
restrictions of such Offered Preferred Stock.
Subject to the terms of the Certificate of Incorporation and to any
limitations contained in the certificate of designations pertaining to any
then-outstanding series of Preferred Stock, the Company may issue additional
series of Preferred Stock at any time or from time to time, with such powers,
preferences and relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof, as the Board of Directors
shall determine, all without further action of the stockholders, including the
holders of any then-outstanding series of any class of Preferred Stock of the
Company.
DIVIDENDS
Holders of any series of Offered Preferred Stock will be entitled to
receive cash dividends when, as and if declared by the Board of Directors of
the Company out of funds of the Company legally available therefor, at such
rate and on such dates as will be set forth in the applicable Prospectus
Supplement. Each dividend will be payable to holders of record as they appear
on the stock books of the Company on the record date fixed by the Board of
Directors. Dividends, if cumulative, will be cumulative from and after the date
set forth in the applicable Prospectus Supplement.
LIQUIDATION RIGHTS
The Company's Certificate of Incorporation provides that, in the event of
a liquidation or dissolution of the Company, or a winding up of its affairs,
whether voluntary or involuntary, or in the event of a merger or consolidation
of the Company, no distributions will be made to holders of any class of the
Company's common stock until after payment or provision for payment of the
debts or liabilities of the Company and any amounts to which holders of shares
of any class of the Company's preferred stock shall be entitled. The applicable
Prospectus Supplement will specify the amount and type of distributions to
which the holders of any series of Offered Preferred Stock would be entitled
upon the occurrence of any such event.
12
REDEMPTION
If so stated in the applicable Prospectus Supplement, the Offered
Preferred Stock will be redeemable in whole or in part at the option of the
Company, at the times, at the redemption prices and in accordance with any
additional terms and conditions set forth in the Prospectus Supplement.
VOTING RIGHTS
Except as expressly required by applicable law, the holders of any series
of Offered Preferred Stock will not be entitled to vote on any matter submitted
for approval by the Company's shareholders.
CONVERSION
If shares of the Offered Preferred Stock are convertible into any other
class of the Company's securities, the accompanying Prospectus Supplement will
set forth the applicable terms and conditions relating to such conversion. Such
terms will include the designation of the security into which the shares are
convertible, the conversion price, the conversion period, whether conversion
will be at the option of the holder or the Company, any events requiring an
adjustment of the conversion price and provisions affecting conversion in the
event of the redemption of the Offered Preferred Stock. If the Offered
Preferred Stock is convertible into Common Stock or into any other security of
the Company for which there exists an established public trading market at the
time of such conversion, such terms may include provisions for calculating the
amount of such security to be received by the holders of the Offered Preferred
Stock according to the market price of such security as of a time stated in the
accompanying Prospectus Supplement.
DESCRIPTION OF COMMON STOCK
AND CLASS C COMMON STOCK
GENERAL
The Company may issue shares of its Common Stock and/or Class C Common
Stock, either separately or together with or upon the conversion of or in
exchange for other Securities. If this Prospectus is being delivered in
connection with such an issuance, all of the details thereof will be set forth
in the accompanying Prospectus Supplement. The following summaries are not
complete and are subject to, and are qualified in their entirety by reference
to, the following documents: (A) the Certificate of Incorporation; (B) the
Company's By-Laws, as amended to date (the "BY-LAWS"); and (C) the certificate
of designations filed by the Company with respect to shares of any series of
Preferred Stock which may be issued subsequent to the date of this Prospectus
(and as described in any applicable Prospectus Supplement). Copies of each of
the Restated Certificate of Incorporation of the Company and the Bylaws of the
Company, as amended, are filed as exhibits to the Registration Statement.
In addition to the three classes of Preferred Stock described above, the
authorized capital stock of the Company consists of
o 30,000,000 shares of Common Stock having a par value of $1.00 per share;
o 10,000,000 shares of Class B Common Stock having a par value of $1.00
per share; and
o 20,000,000 shares of Class C Common Stock having a par value of $1.00
per share.
As of January 22, 1999, the Company had issued and outstanding: (i)
6,023,739 shares of Common Stock; (ii) options to purchase an aggregate of
250,000 shares of Common Stock, which options are currently exercisable; and
(iii) 2,341,108 shares of Class B Common Stock. There are no outstanding shares
of Class C Common Stock.
The outstanding shares of Common Stock and Class B Common Stock are, and
any shares of Common Stock or Class C Common Stock offered hereby will be, upon
issuance and payment therefor in accordance with the Certificate of
Incorporation and as described in the applicable Prospectus Supplement, fully
paid and non-assessable.
VOTING RIGHTS
Except to the extent otherwise provided by law, holders of Common Stock,
Class B Common Stock and Class C Common Stock vote together as a single voting
group on any matters brought before the Company's shareholders. Holders of
Common Stock are entitled to one (1) vote per share on all such matters, while
holders of Class B Common Stock
13
are entitled to twenty (20) votes per share on all such matters and holders of
Class C Common Stock are entitled to one-twentieth ( 1/20) vote per share on
all such matters. Neither Common Stock, Class B Common Stock nor Class C Common
Stock possess any cumulative voting rights under the Certificate of
Incorporation.
Under the Certificate of Incorporation, the Company may not change the
relative rights, preferences, privileges, restrictions, dividend rights, voting
powers or other powers of the Common Stock, Class B Common Stock or Class C
Common Stock without approval by the holders of each class of stock adversely
affected thereby (voting as a separate class). Such approval requires the
affirmative vote of not less than two-thirds ( 2/3) of all the votes entitled
to be cast by the holders of each such class of stock. In the case, however, of
a proposed increase in the authorized number of shares of Common Stock, Class B
Common Stock or Class C Common Stock, the Certificate of Incorporation requires
approval by a majority of all the votes entitled to be voted by holders of
Common Stock, Class B Common Stock and Class C Common Stock, voting together as
a single class.
DIVIDENDS
GENERAL.
Subject to any prior rights of holders of any then-outstanding shares of
Preferred Stock, and to the provisions regarding relative dividend rights
discussed below, holders of all three classes of the Company's common stock are
entitled to receive dividends when, as and if declared by the Company's Board
of Directors out of funds legally available therefor. See also "DESCRIPTION OF
PREFERRED STOCK -- Dividends".
RELATIVE DIVIDEND RIGHTS.
Holders of Class B Common Stock are entitled to receive such dividends,
including stock dividends (if any), in such amounts and at such rates per share
as may be declared by the Company's Board of Directors out of funds legally
available therefor; provided, however, that any such dividends may not exceed
any such dividends declared and paid to holders of Common Stock. Holders of
Common Stock are entitled to receive such dividends, including stock dividends
(if any), in such amounts and at such rates as may be declared by the Board of
Directors out of funds legally available therefor. Dividends declared and paid
to holders of Common Stock may exceed any dividends declared and paid to
holders of Class B Common Stock. A dividend of shares may be declared and paid
in Common Stock to holders of Common Stock and in Class B Common Stock to
holders of Class B Common Stock, if the number of shares paid per share to
holders of Common Stock and Class B Common Stock are the same.
Any dividends declared and paid on Common Stock and Class C Common Stock
must be equal in amount or value and may exceed, but not be less than, any such
dividends declared and paid to holders of Class B Common Stock. Dividends of
shares of Common Stock may be paid to holders of Common Stock and Class C
Common Stock only, or to holders of all classes of the Company's common stock
if the number of shares paid per share to such holders is the same. Similarly,
dividends of shares of Class B Common Stock may be paid to holders of Common
Stock and Class C Common Stock only, or to holders of all classes of the
Company's common stock if the number of shares paid per share to such holders
is the same. Dividends of shares of Class C Common Stock may be paid to holders
of Common Stock and Class C Common Stock only, or to holders of all classes of
the Company's common stock if the number of shares paid per share to such
holders is the same. Additionally, a dividend of Common Stock may be paid to
holders of Common Stock simultaneously with a dividend of Class B Common Stock
to holders of Class B Common Stock and a dividend of Class C Common Stock to
holders of Class C Common Stock, provided that the number of shares paid per
share to holders of each such class is the same.
If only shares of Class B Common Stock and Class C Common Stock are
outstanding, then a dividend of shares of Class C Common Stock, Class B Common
Stock or Common Stock may be declared and paid to holders of Class C Common
Stock only or to holders of Class B Common Stock and Class C Common Stock if
the number of shares paid per share to such holders is the same; PROVIDED that
a dividend of shares of Class B Common Stock may be paid to holders of Class B
Common Stock while holders of Class C Common Stock receive Common Stock or
Class C Common Stock if the number of shares paid to such holders is the same.
Additionally, if only shares of Class B Common Stock and Class C Common Stock
are outstanding, a dividend of shares of Common Stock or Class B Common Stock
may be declared and paid to holders of Class B Common Stock, provided that a
dividend of shares of Common Stock or Class C Common Stock is declared and paid
to holders of Class C Common Stock and the number of shares paid per share to
such holders is the same.
14
If only shares of Common Stock and Class C Common Stock are outstanding,
then a dividend of shares of Common Stock, Class B Common Stock, or Class C
Common Stock may be declared and paid to the holders of both Common Stock and
Class C Common Stock; provided that the number of shares paid per share to such
holders is the same. Additionally, if only shares of Common Stock and Class C
Common Stock are outstanding, a dividend of Common Stock may be paid to holders
of Common Stock and a dividend of Class C Common Stock paid to holders of Class
C Common Stock if the number of shares paid per share to such holders is the
same.
PREEMPTIVE RIGHTS
Generally, holders of the Common Stock, Class B Common Stock and Class C
Common Stock do not have any preemptive or other rights to subscribe for
additional shares of any class of the Company's capital stock. If, in the
future, the Company takes any action that gives such rights to holders of any
shares of Common Stock, Class B Common Stock or Class C Common Stock, the terms
of such rights will be described in an applicable Prospectus Supplement.
LIQUIDATION RIGHTS
The Certificate of Incorporation provides that, in the event of any
liquidation or dissolution of the Company, or a winding up of its affairs,
whether voluntary or involuntary, or in the event of a merger or consolidation
of the Company, no distributions will be made to holders of any class of the
Company's common stock until after payment or provision for payment of the
debts or liabilities of the Company, plus any amounts payable to holders of
shares of any then-outstanding class of Preferred Stock. After the Company
makes such payments (or provisions therefor), holders of the Common Stock,
Class B Common Stock and Class C Common Stock would be entitled to share
ratably (I.E., an equal amount of assets for each share of such stock) in the
distribution of the remaining assets of the Company.
CONVERSION RIGHTS
Shares of Common Stock and Class C Common Stock do not possess any
conversion rights. Shares of Class B Common Stock are convertible, at the
option of the holder and without the payment of any additional consideration to
the Company, into shares of Common Stock on a one share for one share basis.
Shares of Class B Common Stock are not convertible into shares of Class C
Common Stock.
TRANSFERABILITY AND PUBLIC TRADING MARKET
There are no restrictions on the transferability of shares of Common
Stock, Class B Common Stock or Class C Common Stock. The Common Stock currently
trades on The Nasdaq Stock Market (National Market) with the symbol "COKE".
Neither the Class B Common Stock nor the Class C Common Stock is currently
listed for trading on any securities exchange or authorized for quotation in an
interdealer quotation system of a registered national securities association.
OTHER FACTORS
PROVISION REGARDING REDEMPTION OR CALL OF CLASS C COMMON STOCK.
The Certificate of Incorporation specifically provides that shares of the
Class C Common Stock shall not be made subject to any redemption or call by the
Company.
STOCK SPLITS AND REVERSE STOCK SPLITS.
The Certificate of Incorporation provides that, except for dividends of
the Company's stock, which are governed by the provisions described above,
shares of Class B Common Stock outstanding at any time shall not be split up or
subdivided, whether by stock distribution, reclassification, recapitalization
or otherwise, so as to increase the number of shares thereof issued and
outstanding, unless at the same time the shares of Common Stock are split up or
subdivided in like manner, in order to maintain the same proportionate equity
ownership (I.E., the same proportion of shares held by each class) between the
holders of Common Stock and Class B Common Stock as existed on the record date
of any such transaction.
Except in the case of dividends of the Company's stock, the Certificate of
Incorporation also provides that, if shares of Common Stock and Class B Common
Stock outstanding at any time are split or subdivided, whether by stock
distribution, reclassification, recapitalization or otherwise, so as to
increase the number of shares thereof issued and outstanding,
15
then the shares of Class C Common Stock shall be split or subdivided in like
manner, in order to maintain the same proportionate equity ownership (I.E., the
same proportion of shares held by each class) among the holders of Common
Stock, Class B Common Stock and Class C Common Stock as existed on the date
prior to such split or subdivision. Similarly, if shares of Class C Common
Stock shall be split or subdivided in any manner, then all other outstanding
classes of the Company's common stock shall be proportionately split or
subdivided.
In the case of reverse splits, the Certificate of Incorporation provides
that shares of Common Stock outstanding at any time shall not be reverse split
or combined, whether by reclassification, recapitalization or otherwise, so as
to decrease the number of shares thereof issued and outstanding, unless at the
same time the shares of Class B Common Stock are reverse split or combined in
like manner in order to maintain the same proportionate ownership between the
holders of Common Stock and Class B Common Stock as existed on the record date
of any such transaction.
The Certificate of Incorporation also provides that if shares of Common
Stock and Class B Common Stock outstanding at any time are reverse split or
combined, whether by reclassification, recapitalization or otherwise, so as to
decrease the number of shares thereof issued and outstanding, then the shares
of all other classes of the Company's common stock also shall be reverse split
or combined in like manner in order to maintain the same proportionate
ownership (I.E., the same proportion of shares held by each class) between the
holders of Common Stock, Class B Common Stock and Class C Common Stock as
existed on the date prior to the reverse split or combination. Similarly, if
shares of Class C Common Stock are reverse split or combined in any manner, all
other outstanding classes of the Company's common stock shall be
proportionately reverse split or combined.
CLASSIFICATION OF BOARD OF DIRECTORS.
The Company's Board of Directors is divided into three approximately equal
classes, having staggered terms of office of three years each. This
classification of the Board cannot be changed without approval by the
affirmative vote of the holders of not less than two thirds of all of the
outstanding shares of Common Stock, Class B Common Stock and Class C Common
Stock, voting together as a single class.
PLAN OF DISTRIBUTION
The distribution of the Securities may be effected from time to time in
one or more transactions at a fixed price or prices (which may be changed from
time to time), at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. The Company
also may offer and sell the Securities in exchange for one or more of its
outstanding issues of debt or convertible debt securities, or in exchange for
one or more classes of securities of other issuers in connection with business
combination transactions. Each Prospectus Supplement will describe the method
of distribution of the Securities offered therein.
We may sell Securities in any of three ways: (1) through underwriters or
dealers; (2) through agents; or (3) directly to one or more purchasers. The
accompanying Prospectus Supplement with respect to a particular offering of
Securities will set forth the terms of the offering of such Securities,
including the name or names of any underwriters, dealers or agents, the
purchase price of such Securities, the proceeds to the Company from such sale,
any delayed delivery arrangements, any underwriting discounts and other items
constituting underwriters' compensation, any initial public offering price, any
discounts or concessions allowed or reallowed or paid to dealers and any
securities exchanges on which such Securities may be listed.
If underwriters are used in the sale, the Securities will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The
Securities may be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more
firms acting as underwriters. The underwriter or underwriters with respect to a
particular underwritten offering of the Securities will be named in the
Prospectus Supplement relating to such offering, and if an underwriting
syndicate is used, the managing underwriter or underwriters will be set forth
on the cover of such Prospectus Supplement. Unless otherwise set forth in the
Prospectus Supplement relating thereto, the obligations of the underwriters or
agents to purchase a particular offering of Securities will be subject to
conditions precedent, and the underwriters will be obligated to purchase all
the particular Securities offered if any are purchased.
If dealers are utilized in the sale of a particular offering of Securities
with respect to which this Prospectus is delivered, the Company will sell such
Securities to the dealers as principals. The dealers may then resell such
Securities to the public at varying prices to be determined by such dealers at
the time of resale. The names of the dealers and the terms of
16
the transaction will be set forth in the Prospectus Supplement relating
thereto. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
Only underwriters named in a Prospectus Supplement will be deemed to be
underwriters in connection with the Securities described therein. Firms not so
named will have no direct or indirect participation in the underwriting of such
Securities, although such a firm may participate in the distribution of such
Securities under circumstances entitling it to a dealer's commission. It is
anticipated that any underwriting agreement pertaining to any such Securities
will (1) entitle the underwriters to indemnification by the Company against
certain civil liabilities under the Securities Act or to contribution with
respect to payments which the underwriters may be required to make in respect
thereof, (2) provide that the obligations of the underwriters will be subject
to certain conditions precedent and (3) provide that the underwriters generally
will be obligated to purchase all such Securities if any are purchased.
Securities also may be offered directly by the Company or through agents
designated by the Company from time to time at fixed prices, which may be
changed, or at varying prices determined at the time of sale. Any such agent
will be named, and the terms of any such agency (including any commissions
payable by the Company to such agent) will be set forth, in the Prospectus
Supplement relating thereto. Unless otherwise indicated in such Prospectus
Supplement, any such agent will act on a reasonable best efforts basis for the
period of its appointment. Agents named in a Prospectus Supplement may be
deemed to be underwriters (within the meaning of the Securities Act) of the
Securities described therein and, under agreements which may be entered into
with the Company, may be entitled to indemnification by the Company against
certain civil liabilities under the Securities Act or to contribution with
respect to payments which the agents may be required to make in respect
thereof.
If so indicated in a Prospectus Supplement, the Company will authorize
underwriters or other agents of the Company to solicit offers by certain
specified entities to purchase Securities from the Company pursuant to delayed
delivery contracts providing for payment and delivery at a specified future
date. The obligations of any purchaser under any such contract will not be
subject to any conditions except those described in such Prospectus Supplement.
Such Prospectus Supplement will set forth the commissions payable for
solicitations of such contracts.
Underwriters and agents may purchase and sell Securities in the secondary
market, but are not obligated to do so. There can be no assurance that there
will be a secondary market for the Securities or liquidity in the secondary
market if one develops. From time to time, underwriters and agents may make a
market in the Securities. A particular offering of Securities may or may not be
listed on a national securities exchange.
Underwriters and agents may engage in transactions with, or perform
services for, the Company and its subsidiaries in the ordinary course of
business.
EXPERTS
The financial statements incorporated in the Prospectus by reference to
the Annual Report on Form 10-K of Coca-Cola Bottling Co. Consolidated for the
fiscal year ended December 28, 1997, have been so incorporated in reliance on
the reports of PricewaterhouseCoopers LLP, independent accountants, given on
the authority of said firm as experts in auditing and accounting.
Any financial statements and schedules hereafter incorporated by reference
in the Registration Statement of which this Prospectus is a part that have been
audited and are the subject of a report by independent accountants will be so
incorporated by reference in reliance upon such reports and upon the authority
of such firms as experts in auditing and accounting to the extent covered by
consents filed with the Commission.
LEGAL OPINIONS
Certain legal matters relating to the Securities offered hereby will be
passed upon for the Company by Witt, Gaither & Whitaker, P.C., 1100 SunTrust
Bank Building, Chattanooga, Tennessee 37402, and for any underwriters or agents
by Cravath, Swaine & Moore. As of January 22, 1999, members of Witt, Gaither &
Whitaker, P.C. reported ownership of shares of the Company's Common Stock as
follows: John W. Murrey, III, 1,000 shares; Hugh J. Moore, Jr., 100 shares; and
Harold A. Schwartz, Jr., 100 shares. John W. Murrey, III is a director of the
Company and John F. Henry, Jr., Secretary of the Company, also is a member of
Witt, Gaither & Whitaker, P.C..
17
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth those expenses to be incurred by the
Registrant in connection with the issuance and distribution of the securities
being registered, other than underwriting discounts and commissions. All of the
amounts shown are estimates, except the applicable Securities and Exchange
Commission registration fee.
SEC registration fee ........................... $166,800
Rating agency fees ............................. 225,000
Printing, engraving and postage expenses ....... 30,000
Legal fees ..................................... 100,000
Accounting fees ................................ 50,000
Trustee's fees and expenses .................... 30,000
Miscellaneous expenses ......................... 15,000
--------
Total ......................................... $616,800
========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Restated Certificate of Incorporation provides for
indemnification of all persons that it may indemnify pursuant to Section 145 of
the Delaware General Corporation Law ("SECTION 145").
Section 145 permits the Company to indemnify any person liable by reason
of the fact that he is a party to, or is threatened to be made or was a party
to, a threatened, pending or completed administrative, investigative, civil or
criminal action, suit or proceeding (including an action by or in the right of
the Company) by reason of the fact that he is or was a director, officer,
employee or agent of the Company or is or was serving at the request of the
Company as a director, officer, employee or agent of another company or "other
enterprise" against expenses, judgments, fines and amounts paid in settlement
he actually and reasonably incurred in connection with such an action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in, or not opposed, to the best interests of the Company (and, in the case
of a criminal action or proceeding, had no reason to believe his conduct was
unlawful). In the case of an action by or in the right of the Company,
indemnification is generally limited to attorneys' fees and other expenses and
is not available with respect to any claim, issue or matter as to which the
person was adjudged liable to the Company unless the court determines that he
is fairly and reasonably entitled to indemnity for such expenses as the court
shall deem proper.
Expenses incurred by an officer or director in defending an action, suit
or proceeding may be paid by the Company in advance of the final disposition of
such an action, suit or proceeding if the officer or director agrees to repay
such amount in the event it is determined that he was not entitled to it. Such
expenses incurred by other employees or agents may be so paid upon such terms
and conditions, if any, as the Board of Directors of the Company deems
appropriate.
In addition, Section 145 permits the Company to purchase and maintain
insurance on behalf of any person who is or was an officer, director, employee
or agent serving as described above whether or not the Company would have the
power to indemnify such person under Section 145. The Company currently
maintains such policies for its directors and officers. Constituent
corporations and corporations resulting from consolidations and mergers may
indemnify such persons to the extent they would have had the power to indemnify
as separate entities.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions or otherwise, the Company has been advised
that, in the opinion of the Commission, such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
In addition, the Company's Restated Certificate of Incorporation contains
a provision which eliminates, to the fullest extent permitted under Section
102(b)(7) of the Delaware General Corporation Law, the personal liability of
the Company's directors. Section 102(b)(7) provides that a director's personal
liability may not be eliminated: (i) for any matter in respect of which such
director shall be liable under Section 174 of the Delaware General Corporation
Law (relating to, among other things, willful or negligent payment of
prohibited dividends); (ii) for any breach of his duty of loyalty to the
Company or its stockholders; (iii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; or (iv) for
any transactions from which the director derived an improper personal benefit.
Reference is made to Section 7 of the form of Underwriting Agreement
(Exhibit 1.1 hereto) for certain provisions with respect to indemnification of
certain officers and directors of the Company.
II-1
ITEM 16. EXHIBITS
1.1 Form of Underwriting Agreement (incorporated by reference to Exhibit 1 to the Company's Registration
Statement on Form S-3, File No. 33-54657)
3.1 Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-3, File No. 33-54657)
3.2 Bylaws of the Company, as amended (incorporated by reference to Exhibit 3.2 to the Company's
Registration Statement on Form S-3, File No. 33-54657)
4.1 Form of Indenture, dated as of July 20, 1994, between the Company and NationsBank of Georgia, National
Association, as Trustee (incorporated by reference to Exhibit 4.1 to the Company's Registration Statement
No. 33-54657 on Form S-3)
4.2 Supplemental Indenture, dated as of March 3, 1995, between the Company and NationsBank of Georgia,
National Association, as Trustee (incorporated by reference to Exhibit 4.15 to the Company's Annual
Report, as amended on Form 10-K/A-2 for the fiscal year ended January 1, 1995)
4.3 Proposed Form of fixed rate redeemable or non-redeemable Debt Security (to be filed by amendment or
incorporated herein by reference)
4.4 Form of Certificate of Designations, Preferences, Rights and Limitations relating to Preferred Stock (to be
filed by amendment or incorporated herein by reference)
4.5 Form of Preferred Stock Certificate (to be filed by amendment or incorporated herein by reference)
4.6 Form of Common Stock Certificate (incorporated by reference to Exhibit 4.5 to the Company's
Registration Statement No. 33-54657 on Form S-3)
4.7 Form of Class C Common Stock Certificate (to be filed by amendment or incorporated herein by reference)
5 Opinion of Witt, Gaither & Whitaker, P.C. (filed herewith)
12 Computation of Ratio of Earnings to Fixed Charges (filed herewith)
23.1 Consent of Witt, Gaither & Whitaker, P.C. (included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP (filed herewith)
24 Power of Attorney (included in Signature page of this Registration Statement)
25 Form T-1 Statement of Eligibility and Qualification of the Trustee under the Trust Indenture Act of 1939
(incorporated by reference to Exhibit 25 to the Company's Registration Statement on Form S-3, File No.
33-54657)
ITEM 17. UNDERTAKINGS
I. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the Registration Statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
PROVIDED, HOWEVER, that the Registrant need not file a post-effective amendment
to include the information required to be included by subsection (i) or (ii)
above if such information is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, which are incorporated by reference in the Registration Statement;
and
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
II. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
II-2
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
III. The undersigned Registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act ("ACT") in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Act.
IV. Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Charlotte, State of North Carolina on January 22,
1999.
COCA-COLA BOTTLING CO. CONSOLIDATED
By
-----------------------------------------
J. FRANK HARRISON, III
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears
below hereby authorizes and appoints James L. Moore, Jr. and J. Frank Harrison,
III, and each of them, as attorneys-in-fact, to sign on his behalf individually
and in the capacity designated below, and to file, any amendments, including
post effective amendments, to this Registration Statement.
/s/ J. FRANK HARRISON, III
- ------------------------------ Chairman of the Board, Chief January 22, 1999
J. FRANK HARRISON, III Executive Officer and Director
/s/ J. FRANK HARRISON, JR
- ------------------------------ Chairman Emeritus and Director January 14, 1999
J. FRANK HARRISON, JR.
/s/ REID M. HENSON
- ------------------------------ Vice Chairman of the Board and Director January 14, 1999
REID M. HENSON
/s/ JAMES L. MOORE, JR.
- ------------------------------ President, Chief Operating Officer and January 22, 1999
JAMES L. MOORE, JR. Director
/s/ JOHN M. BELK
- ------------------------------ Director January 18, 1999
JOHN M. BELK
/s/ H. W. MCKAY BELK
- ------------------------------ Director January 14, 1999
H. W. MCKAY BELK
- ------------------------------ Director January , 1999
EVANDER HOLYFIELD
- ------------------------------ Director January , 1999
H. REID JONES
/s/ NED R. MCWHERTER
- ------------------------------ Director January 19, 1999
NED R. MCWHERTER
/s/ JOHN W. MURREY, III
- ------------------------------ Director January 13, 1999
JOHN W. MURREY, III
- ------------------------------ Director January , 1999
CHARLES L. WALLACE
/s/ DAVID V. SINGER
- ------------------------------ Vice President and Chief Financial January 22, 1999
DAVID V. SINGER Director
/s/ STEVEN D. WESTPHAL
- ------------------------------ Vice President and Controller January 22, 1999
STEVEN D. WESTPHAL
EXHIBITS
EXHIBIT 5
January 22, 1999
Board of Directors
Coca-Cola Bottling Co. Consolidated
1900 Rexford Road
Charlotte, North Carolina 28211
Gentlemen:
You have requested our opinion concerning certain matters in connection
with the Registration Statement on Form S-3 to be filed by Coca-Cola Bottling
Co. Consolidated, a Delaware corporation (the "COMPANY"), with the Securities
and Exchange Commission under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), relating to $800,000,000 aggregate initial offering price of
securities being registered pursuant to Rule 415 under the Securities Act,
consisting of one or more of the following: (i) Debt Securities of the Company;
(ii) the Company's Convertible Preferred Stock, par value $100 per share; (iii)
the Company's Non-Convertible Preferred Stock, par value $100 per share; (iv)
the Company's Preferred Stock, par value $0.01 per share; (v) the Company's
Common Stock, par value $1.00 per share; and (vi) the Company's Class C Common
Stock, par value $1.00 per share.
In rendering the opinions expressed herein, we have examined the Restated
Certificate of Incorporation of the Company, the Bylaws of the Company as
amended to date, the Indenture dated as of July 20, 1994 between the Company
and NationsBank of Georgia, National Association (as Trustee), as amended and
supplemented by Supplemental Indenture, dated as of March 3, 1995, between the
Company and NationsBank of Georgia, National Association (as Trustee), and the
originals, or copies certified or otherwise identified to our satisfaction, of
such records, documents, certificates and other instruments as in our judgement
are necessary or appropriate to enable us to render the opinions expressed
below. In such examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals and the
conformity with the originals of all documents submitted to us as copies.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Company is duly incorporated and validly existing under the laws
of the State of Delaware.
2. The Indenture, dated as of July 20, 1994, between the Company and
NationsBank of Georgia, National Association, as Trustee (the
"INDENTURE"), has been duly authorized and executed by the Company, has
been executed and delivered by the parties thereto and constitutes a
valid and legally binding obligation of the Company.
3. The Supplemental Indenture, dated as of March 3, 1995, between the
Company and NationsBank of Georgia, National Association, as Trustee
(the "SUPPLEMENTAL INDENTURE"), has been duly authorized and executed
by the Company, has been executed and delivered by the parties thereto
and constitutes a valid and legally binding obligation of the Company.
4. When the issuance of the Debt Securities has been duly authorized by
appropriate corporate action and such Debt Securities have been duly
executed, authenticated and delivered in accordance with the Indenture
(as amended and supplemented by the Supplemental Indenture) and sold as
described in the Registration Statement, including the Prospectus and
any Prospectus Supplement relating to such Debt Securities, such Debt
Securities will be legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture (as amended and supplemented
by the Supplemental Indenture).
5. When the issuance of shares of any series of (i) the Convertible
Preferred Stock, (ii) the Non-Convertible Preferred Stock or (iii) the
Preferred Stock ((i), (ii) and (iii), collectively, the "PREFERRED
EQUITY SECURITIES") has been duly authorized by appropriate corporate
action, such Preferred Equity Securities, when issued in accordance
with the terms of the applicable corporate authorization and the
applicable certificate of designations as described in the Registration
Statement, including the Prospectus and any Prospectus Supplement
relating to any issuance of such Preferred Equity Securities, will be
duly authorized, validly issued, fully paid and nonassessable.
6. When the issuance of shares of (i) the Common Stock or (ii) Class C
Common Stock ((i) and (ii), collectively, the "COMMON EQUITY
SECURITIES") has been duly authorized by appropriate corporate action,
such Common Equity Securities, when issued in accordance with the terms
of the applicable corporate authorization as described in the
Registration Statement, including the Prospectus and any Prospectus
Supplement relating to any issuance of such Common Equity Securities,
will be duly authorized, validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption
"Legal Opinions" in the Prospectus forming a part of the Registration
Statement.
Very truly yours,
WITT, GAITHER & WHITAKER, P.C.
By: /S/ STEVEN R. BARRETT
-------------------------------------
STEVEN R. BARRETT
EXHIBIT 12
Coca-Cola Bottling Co. Consolidated
Ratio of Earning to Fixed Charges
The tables below set forth the ratios of earnings to fixed charges of the
Company and its consolidated subsidiaries for the periods indicated. The ratios
have been computed using the amounts for the Company, its consolidated
subsidiaries and its proportionate share of gains or losses incurred by its
fifty percent (50%) owned affiliate. Earnings available for fixed charges
represent earnings before income taxes, extraordinary items and fixed charges.
Fixed charges represent interest incurred plus that portion of rental expense
deemed to be the equivalent of interest.
RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS EXCEPT RATIOS)
NINE MONTHS ENDED
-------------------------
9/27/98 9/28/97
------------ ------------
Income before income taxes ................. $ 21,774 $ 25,250
Fixed Charges:
Interest expense ........................ 29,069 28,050
Interest inherent in rental expense2 .... 4,566 4,130
Piedmont fixed charges3 ................. 4,876 5,286
-------- --------
Fixed charges, as Defined ............... 38,511 37,466
Earnings, as Defined ....................... $ 60,285 $ 62,716
RATIO OF EARNINGS TO FIXED CHARGES ......... 1.57 1.67
========= =========
EXCESS OF EARNINGS AS DEFINED, TO FIXED
CHARGES .................................... $ 21,774 $ 25,250
========= =========
FISCAL YEAR ENDED1
----------------------------------------------------------------
1997 1996 1995 1994 1993
------------ ------------ ------------ ------------ ------------
Income before income taxes ................. $ 24,270 $ 25,699 $ 25,221 $ 24,386 $ 24,015
Fixed Charges:
Interest expense ........................ 37,479 30,379 33,091 31,385 32,394
Interest inherent in rental expense2 .... 5,120 10,615 9,654 8,412 5,767
Piedmont fixed charges3 ................. 7,219 6,667 6,231 5,388 2,259
-------- -------- -------- -------- --------
Fixed charges, as Defined ............... 49,818 47,661 48,975 45,185 40,420
Earnings, as Defined ....................... $ 74,088 $ 73,360 $ 74,196 $ 69,571 $ 64,435
RATIO OF EARNINGS TO FIXED CHARGES ......... 1.49 1.54 1.51 1.54 1.59
========= ========= ========= ========= =========
EXCESS OF EARNINGS AS DEFINED, TO FIXED
CHARGES .................................... $ 24,270 $ 25,699 $ 25,221 $ 24,386 $ 24,015
========= ========= ========= ========= =========
1 The Company's fiscal year ends on the Sunday nearest December 31st.
2 The Company imputes the interest inherent in rental expense based on
estimates of the cost of debt having a term to maturity substantially the
same as the rental period. In estimates made prior to 1997, the Company
based this estimate on the cost of debt having a term substantially longer
than the rental period. This factor, in combination with generally falling
interest rates since 1993, resulted in lower imputed interest inherent in
rental expense beginning in 1997.
3 The fixed charges for the Company's fifty percent (50%) owned affiliate,
Piedmont Coca-Cola Bottling Partnership, are calculated as follows:
NINE MONTHS ENDED
------------------------
9/27/98 9/27/97 1997
----------- ------------ ------------
Interest expense ........................ $ 8,146 $ 9,272 $ 12,704
Interest inherent in rental expense ..... 1,605 1,300 1,733
------- -------- --------
Subtotal ................................ $ 9,751 $ 10,572 $ 14,438
Proportionate share ..................... 50.0% 50.0% 50.0%
Applicable .............................. $ 4,876 $ 5,286 $ 7,219
======= ======== ========
1996 1995 1994 1993
------------ ------------ ------------ -----------
Interest expense ........................ $ 11,468 $ 11,294 $ 9,865 $ 4,275
Interest inherent in rental expense ..... 1,867 1,167 910 243
-------- -------- -------- -------
Subtotal ................................ $ 13,335 $ 12,461 $ 10,775 $ 4,518
Proportionate share ..................... 50.0% 50.0% 50.0% 50.0%
Applicable .............................. $ 6,667 $ 6,231 $ 5,388 $ 2,259
======== ======== ======== =======
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated February 16, 1998 appearing on page 38 of Coca-Cola Bottling Co.
Consolidated's Annual Report on Form 10-K for the year ended December 28, 1997.
We also consent to the reference to us under the heading "Experts" in such
Prospectus.
PricewaterhouseCoopers LLP
Charlotte, North Carolina
January 18, 1999
