As filed with the Securities and Exchange Commission on May 13, 2002
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
COCA-COLA BOTTLING CO. CONSOLIDATED
(Exact name of registrant as specified in its charter)
DELAWARE 56-0950585
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
4100 COCA-COLA PLAZA
CHARLOTTE, NORTH CAROLINA 28211
(704) 557-4400
(Address of principal executive offices including zip code)
J. FRANK HARRISON, JR. STOCK OPTION AGREEMENT DATED MARCH 8, 1989
J. FRANK HARRISON, III STOCK OPTION AGREEMENT DATED AUGUST 9, 1989
(Full title of plans)
DAVID V. SINGER
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
COCA-COLA BOTTLING CO. CONSOLIDATED
4100 COCA-COLA PLAZA
CHARLOTTE, NORTH CAROLINA 28211
(Name and address of agent for service)
(704) 557-4400
(Telephone number, including area code, of agent for service)
Copy to:
SEAN M. JONES
KENNEDY COVINGTON LOBDELL & HICKMAN, L.L.P.
BANK OF AMERICA CORPORATE CENTER
100 NORTH TRYON STREET
SUITE 4200
CHARLOTTE, NORTH CAROLINA 28202
(704) 331-7400
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Title of securities Amount to be Proposed maximum offering Proposed maximum aggregate Amount of
to be registered registered (1) price per share offering price registration fee
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock,
par value $1.00 per share 250,000 (2) $7,162,500(2) $659
====================================================================================================================================
(1) Plus such indeterminate number of shares of Common Stock of the Registrant
as may be issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions in accordance with Rule 416 under the
Securities Act of 1933.
2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933 and based upon the
$27.00 per share exercise price with respect to the options to purchase
100,000 shares of Common Stock granted to J. Frank Harrison, Jr. and the $29.75
per share exercise price with respect to the options to purchase 150,000 shares
of Common Stock granted to J. Frank Harrison, III.
================================================================================
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to the Note to Part I of Form S-8, the information required by
such Part I is not required to be filed with the Securities and Exchange
Commission and is not included herein.
The following Reoffer Prospectus filed as part of this Registration
Statement on Form S-8 has been prepared in accordance with the requirements of
Part I of Form S-3 and, pursuant to General Instruction C of Form S-8, may be
used for reofferings and resales by the selling stockholders of shares of Common
Stock of Coca-Cola Bottling Co. Consolidated ("CCBCC") originally issued under
Stock Option Agreements between CCBCC and the selling stockholders.
-------------------------------
REOFFER PROSPECTUS
-------------------------------
COCA-COLA BOTTLING CO. CONSOLIDATED
250,000 shares of Common Stock Issuable Pursuant to
J. Frank Harrison, Jr. Stock Option Agreement dated March 8, 1989
and
J. Frank Harrison, III Stock Option Agreement dated August 9, 1989
-----------------------------------------------------------
This Prospectus is being used in connection with the offering from time to time
by J. Frank Harrison, Jr. and J. Frank Harrison, III with respect to shares of
our Common Stock to be acquired by them pursuant to Stock Option Agreements. We
will not receive any of the proceeds from those sales.
The shares of our Common Stock may be sold from time to time to purchasers
directly by Mr. Harrison, Jr., Mr. Harrison, III or by their respective donees,
pledgees, transferees or other successors in interest. Any such selling
stockholder may sell shares of our Common Stock in one or more transactions on
the NASDAQ National Market, in separately negotiated transactions or otherwise.
Some or all of these shares may be sold through broker-dealers acting on behalf
of either selling stockholder or to dealers for resale by those dealers. In
connection with those sales, those brokers or dealers may receive compensation
in the form of discounts, concessions or commissions from a selling stockholder
and/or the purchasers of those shares for whom they may act as broker or agent.
We will pay all registration expenses in connection with this offering, but the
selling stockholders will pay all brokerage commissions and other expenses. The
selling stockholders and any participating dealer or broker may be deemed to be
"underwriters" within the meaning of the Securities Act. In that event, any
profit on the sale of our Common Stock and any discounts or commissions may be
deemed to be underwriting discounts and commissions under the Securities Act.
Any securities covered by this Prospectus that qualify for sale pursuant to Rule
144 under the Securities Act may be sold under Rule 144 rather than pursuant to
this Prospectus. Mr. Harrison, Jr. and Mr. Harrison, III have entered into Rule
10b5-1 Sales Plans with Salomon Smith Barney Inc pursuant to which Mr. Harrison,
Jr. and Mr. Harrison, III may sell shares of our Common Stock issuable pursuant
to their Stock Option Agreements. Mr. Harrison, Jr.'s sale of up to 100,000
shares pursuant to his Rule 10b5-1 Sales Plan may take place from time to time
through March 7, 2004 and Mr. Harrison, III's sale of up to 150,000 shares
pursuant to his Rule 10b5-1 Sales Plan may take place from time to time through
August 8, 2004. Such sales may be made either in reliance upon Rule 144 under
the Securities Act or pursuant to this Prospectus.
Our Common Stock is traded on the NASDAQ National Market under the symbol
"COKE". On May 10, 2002, the closing price of a share of our Common Stock as
reported by NASDAQ was $44.24.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this Prospectus. Any representation to the contrary is a
criminal offense.
The date of this Prospectus is May 13, 2002.
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TABLE OF CONTENTS
Page
----
WHERE YOU CAN FIND MORE INFORMATION ........................................ 2
COCA-COLA BOTTLING CO. CONSOLIDATED ........................................ 3
USE OF PROCEEDS ............................................................ 3
SELLING STOCKHOLDERS ....................................................... 3
PLAN OF DISTRIBUTION ....................................................... 4
EXPERTS .................................................................... 6
LEGAL MATTERS .............................................................. 6
WHERE YOU CAN FIND MORE INFORMATION
Federal securities law requires us to file information with the Securities and
Exchange Commission (the "SEC") concerning our business and operations.
Accordingly, we file annual, quarterly and current reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference room located at 450 Fifth Street, N.W., Washington,
D.C. 20549. You may obtain information on the operation of the public reference
room by calling the SEC at 1-800-SEC-0330. Our SEC filings are also available to
the public from the SEC's web site at: http://www.sec.gov.
We have filed with the SEC a registration statement on Form S-8 under the
Securities Act. This Prospectus, which is filed with the SEC with the
registration statement, does not include all the information contained in the
registration statement and its exhibits. For further information with respect to
us and our Common Stock, you should consult the registration statement and its
exhibits. Statements contained in this Prospectus concerning the provisions of
any documents are summaries of those documents, and we refer you to the document
filed with the SEC for more information. The registration statement and any of
its amendments, including exhibits filed as a part of the registration statement
or any amendment to the registration statement, are available for inspection and
copying as described above.
The SEC allows us to "incorporate by reference" the information we file with
them. This means that we can disclose important information to you by referring
you to the other information we have filed with the SEC. The information that we
incorporate by reference is considered to be part of this Prospectus.
Information that we file later with the SEC will automatically update and
supersede this information.
The following documents filed by us, including our predecessors, with the SEC
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and any future filings under Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act made prior to the termination of the offering are incorporated by
reference:
(a) Our Annual Report on Form 10-K for the fiscal year ended
December 30, 2001.
(b) Our Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 2002.
(c) Our Current Reports on Form 8-K dated January 14, and May 3,
2002.
(d) The description of our Common Stock, par value $1.00 per
share, contained in our registration statement on Form 8-A
filed with the SEC on January 29, 1973, as updated from time
to time by our subsequent filings with the SEC.
You can request a free copy of the above filings or any filings subsequently
incorporated by reference into this Prospectus by writing or calling us at:
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Coca-Cola Bottling Co. Consolidated
P.O. Box 31487
Charlotte, NC 28231
(704) 557-4400
Attention: David V. Singer
COCA-COLA BOTTLING CO. CONSOLIDATED
We produce, market and distribute carbonated and noncarbonated beverages,
primarily products of The Coca-Cola Company, Atlanta, Georgia. Our company was
incorporated as a Delaware corporation in 1980, and our predecessors have been
in the soft drink manufacturing and distribution business since 1902. Our
business has grown significantly since 1984.
Our principal executive offices are located at 4100 Coca-Cola Plaza, Charlotte,
NC 28211, and our telephone number is (704) 557-4400.
USE OF PROCEEDS
We will not receive any proceeds from any sales by any selling stockholder of
shares of the Common Stock covered by this Prospectus. All proceeds will be
received by the selling stockholders.
SELLING STOCKHOLDERS
This Prospectus relates to up to 250,000 shares of our Common Stock that J.
Frank Harrison, Jr. and J. Frank Harrison, III currently have the right to
acquire from us pursuant to Stock Option Agreements dated March 8, 1989 and
August 9, 1989, respectively. Mr. Harrison, Jr. currently has the right to
purchase 100,000 shares of our Common Stock, and Mr. Harrison, III currently has
the right to purchase 150,000 shares of Common Stock pursuant to such
agreements. Neither selling stockholder has exercised any options under such
Stock Option Agreements prior to the date hereof. This Prospectus may also be
used by the donees, pledgees, transferees or other successors in interest of Mr.
Harrison, Jr., and Mr. Harrison, III. The following table sets forth the number
of shares of our Common Stock currently owned by the selling stockholders and
the number of shares of our Common Stock that the selling stockholders will own
after they sell all of the shares issuable to them under their respective Stock
Option Agreements:
Shares of Common Stock
Shares of Beneficially Owned
Common Stock Number of After All Shares Are Sold
Beneficially Owned Shares That Under this Prospectus
---------------------------- May Be -------------------------
Offered
Percent Pursuant to Percent
Name Number (1) This Prospectus Number (1)
- --------------------------- -------------- ----------- ----------------- ----------- ---------
J. Frank Harrison, Jr. 4,850,324(2) 53.8% 250,000(3) 4,600,324 52.4%
J. Frank Harrison, III
Reid M. Henson, J.
Frank Harrison Family LLC
and three Harrison Family
Limited Partnerships, as a
group
- ----------
(1) Percentage is based on 6,392,477 shares of our Common Stock outstanding
as of May 10, 2002 and is calculated in accordance with Rule 13d-3(d) under
the Exchange Act.
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(2) Consists of (a) 235,786 shares held by a trust for the benefit of certain
relatives of Mr. Harrison, Jr. as to which he has sole voting power and no
investment power; (b) 1,984,495 shares held by The Coca-Cola Company subject
to the terms of a Voting Agreement and Irrevocable Proxy as to which Mr.
Harrison, III has been granted an irrevocable proxy for life concerning
shares of our Common Stock and our Class B Common Stock owned by The
Coca-Cola Company; (c) 793 shares held by Mr. Harrison, III as custodian for
certain of his children as to which Mr. Harrison, III has sole voting and
investment power; (d) 2,379,250 shares of Class B Common Stock beneficially
owned by such persons as described below that are convertible into shares of
our Common Stock; (e) 100,000 shares of our Common Stock that Mr. Harrison,
Jr. presently has the right to acquire upon the exercise of his Stock Option
Agreement (which shares are being registered pursuant to this Prospectus);
and (f) 150,000 shares of our Common Stock that Mr. Harrison, III presently
has the right to acquire upon the exercise of his Stock Option Agreement
(which shares are being registered pursuant to this Prospectus). The
2,379,250 shares of our Class B Common Stock set forth in subsection (d)
above consists of (i) a total of 1,605,534 shares held by the JFH Family
Limited Partnership -- FH1, JFH Family Limited Partnership -- SW1 and JFH
Family Limited Partnership -- DH1 (collectively, the "Harrison Family Limited
Partnerships"), as to which Mr. Harrison, Jr., in his capacity as the manager
of J. Frank Harrison Family, LLC (the general partner of each of the Harrison
Family Limited Partnerships), exercises sole voting and investment power;
(ii) 235,786 shares held by a trust for the benefit of Mr. Harrison, Jr. and
certain of his relatives as to which Mr. Harrison, III and Reid M. Henson
share investment power as co-trustees and as to which Mr. Harrison, Jr.
possesses sole voting power; (iii) 260 shares held by Mr. Harrison, III as
custodian for certain of his children as to which Mr. Harrison, III possesses
sole voting and investment power; (iv) 497,670 shares held by The Coca-Cola
Company subject to the terms of the Voting Agreement and Irrevocable Proxy
described above; and (e) 40,000 shares of Class B Common Stock held by Mr.
Harrison, III.
(3) Mr. Harrison, Jr. may offer up to 100,000 shares of our Common Stock
pursuant to this Prospectus, and Mr. Harrison, III may offer up to 150,000
shares of our Common Stock pursuant to this Prospectus.
Mr. Harrison, Jr. currently serves as Chairman Emeritus of the Board of
Directors and as a Director of CCBCC. Mr. Harrison, Jr. has served as Chairman
Emeritus since 1996. We have entered into an agreement with Mr. Harrison, Jr.
pursuant to which he agreed to continue to serve as a director and as chairman
of the Executive Committee of our Board of Directors. Mr. Harrison, Jr. provides
certain other services and receives certain payments and other benefits under
his agreement.
Mr. Harrison, III currently serves as Chairman of the Board of Directors,
Chief Executive Officer and a Director of CCBCC. Mr. Harrison, III became Chief
Executive Officer of CCBCC in 1994, and became Chairman of CCBCC's Board of
Directors in 1996.
We lease our Snyder Production Center and certain adjacent property from
Harrison Limited Partnership One ("HLP") pursuant to a lease that expires in
December 2010. HLP's sole general partner is a corporation of which Mr.
Harrison, Jr. is the sole stockholder. HLP's sole limited partner is a trust of
which Mr. Harrison, III and Reid M. Henson are co-trustees and Mr. Harrison, Jr.
and his descendants are beneficiaries. In addition, we lease our corporate
headquarters and an adjacent office building from Beacon Investment Corporation,
of which Mr. Harrison, III is the sole stockholder. We purchase certain
computerized data management products and services from Data Ventures LLC, of
which the Company holds a 31.25% equity interest and Mr. Harrison, III owns a
32.5% equity interest.
PLAN OF DISTRIBUTION
We are registering the shares of our Common Stock covered by this
Prospectus for the selling stockholders. As used in this Prospectus, the term
"selling stockholder" includes the donees, transferees, successors-in-interest
or others who may later hold such selling stockholders' interests in the shares
of our Common Stock covered hereby and are entitled to resell shares using this
Prospectus.
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The selling stockholders may sell the shares of our Common Stock being
offered hereby in one or more of the following ways at various times (which may
include block transactions or crosses):
. to underwriters for resale to the public or to institutional
investors;
. directly to the public or institutional investors; or
. through brokers, dealers or agents to the public or to institutional
investors.
The selling stockholders will act independently of us in making
decisions with respect to the timing, manner and size of each sale. The selling
stockholders may sell shares of our Common Stock on the Nasdaq National Market
(or any other exchange or automated quotation system on which our Common Stock
may be listed in the future), in negotiated transactions or otherwise. Such
sales may be made at fixed prices, at market prices prevailing at the time of
sale, at prices related to the prevailing market prices, or at negotiated
prices. If underwriters are used in the sale, the shares of our Common Stock
will be acquired by the underwriters for their own account and may be resold at
various times in one or more transactions, including negotiated transactions, at
a fixed public offering price or prices, which may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices, or at negotiated prices. A distribution of shares of our Common Stock by
some of the selling stockholders may also be effected through the issuance by
the selling stockholders or others of derivative securities, including warrants,
exchangeable securities, forward delivery contracts and the writing of put or
call options, or a combination of any such derivative securities.
In addition, the selling stockholders may sell some or all of the
shares of our Common Stock covered by this Prospectus through:
. block trades in which a broker-dealer will attempt to sell as agent,
but may position or resell a portion of the block, as principal, in
order to facilitate the transaction;
. purchases by a broker-dealer, as principal, and resale by the
broker-dealer for its account;
. ordinary brokerage transactions and transactions in which a broker
solicits purchasers; or
. privately negotiated transactions.
When selling shares of our Common Stock, at any time when the selling
stockholders are not selling pursuant to Rule 10b5-1 arrangements, the selling
stockholders may enter into hedging transactions with broker-dealers or other
financial institutions. For example, the selling stockholders may:
. enter into transactions involving short sales of our Common Stock by
broker-dealers or other financial institutions;
. sell shares of our Common Stock short and redeliver such shares to
close out their short positions;
. enter into options or other types of transactions that require the
selling stockholders to deliver shares of our Common Stock to a
broker-dealer or other financial institution, who will then resell
or transfer shares of our Common Stock under this Prospectus; or
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. loan or pledge shares of our Common Stock to a broker-dealer or
other financial institution, who may sell the loaned shares or,
in the event of default, sell the pledged shares.
Broker-dealers engaged in connection with the sale of shares of our
Common Stock covered hereby may receive compensation in the form of discounts,
concessions or commissions from the selling stockholders or purchasers of the
shares for whom such broker-dealers may act as agents or to whom they sell as
principal, or both (which compensation as to a particular broker-dealer may be
in excess of customary commissions). Broker-dealers engaged by the selling
stockholders may allow other broker-dealers to participate in resales. The
selling stockholders and any broker-dealers or agents involved in the sale or
resale of shares of our Common Stock may qualify as "underwriters" within the
meaning of the Section 2(a)(11) of the Securities Act of 1933. In addition, the
commissions, discounts or concessions paid to any such broker-dealers or agents
may qualify as underwriters' compensation under the Securities Act of 1933.
We will not receive any of the proceeds from the sales of the shares of
our Common Stock by the selling stockholders. We will pay the costs of
registering the shares of our Common Stock under the Securities Act, including
the registration fee under the Securities Act, reasonable fees and disbursements
of our counsel, accounting fees and printing fees. The selling stockholders will
bear all other expenses in connection with this offering, including brokerage
commissions.
The selling stockholders also may resell all or a portion of the shares
of our Common Stock in open market transactions in reliance upon Rule 144 of the
Securities Act rather than pursuant to this Prospectus, provided that they meet
the criteria and conform to the requirements of such rule.
We have been advised that Mr. Harrison, Jr. and Mr. Harrison, III have
entered into Rule 10b5-1 Sales Plans with Salomon Smith Barney Inc. pursuant to
which Mr. Harrison, Jr. and Mr. Harrison, III may sell shares of our Common
Stock issuable pursuant to their respective Stock Option Agreements. Mr.
Harrison, Jr.'s sale of up to 100,000 shares pursuant to his Rule 10b5-1 Sales
Plan may take place from time to time through March 7, 2004 and Mr. Harrison,
III's sale of up to 150,000 shares pursuant to his Rule 10b5-1 Sales Plan may
take place from time to time through August 8, 2004. Sales of our Common Stock
pursuant to the Rule 10b5-1 Sales Plans may be made either in reliance upon Rule
144 of the Securities Act or pursuant to this Prospectus.
EXPERTS
The consolidated financial statements and schedule incorporated in this
Prospectus by reference to the Annual Report on Form 10-K for the year ended
December 30, 2001 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
LEGAL MATTERS
The validity of the Common Stock offered by this Reoffer Prospectus has
been passed upon for us by Kennedy Covington Lobdell & Hickman, L.L.P.,
Charlotte, North Carolina.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by us with the SEC (including our
predecessors) are incorporated herein by reference:
(a) Our Annual Report on Form 10-K for the fiscal year ended
December 30, 2001.
(b) Our Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 2002.
(c) Our Current Reports on Form 8-K dated January 14, and May 3,
2002.
(d) The description of our Common Stock, par value $1.00 per
share, contained in our registration statement on Form 8-A
filed with the SEC on January 29, 1973, as updated from time
to time by our subsequent filings with the SEC.
All documents subsequently filed by us with the SEC pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to this registration statement which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Any statement contained herein or in a document incorporated or deemed
to be incorporated herein by reference shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated herein by reference modifies or
supersedes such earlier statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
CCBCC is a Delaware corporation. CCBCC'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
("DGCL"), the personal liability of CCBCC's directors. Section 102(b)(7) of the
DGCL enables a corporation in its certificate of incorporation to eliminate or
limit the personal liability of a director to the corporation or its
stockholders for monetary damages for violations of the director's fiduciary
duty, except (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which a director derived an improper personal
benefit.
II-1
CCBCC's Restated Certificate of Incorporation further provides for
indemnification of all persons that it may indemnify pursuant to Section 145 of
the DGCL. Section 145(a) of the DGCL empowers a corporation to indemnify any
director or officer, or former director or officer, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation), by reason of the
fact that such person is or was a director or officer of the corporation or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred in connection
with such action, suit or proceeding provided that such director or officer
acted in good faith in a manner reasonably believed to be in, or not opposed to,
the best interests of the corporation, and, with respect to any criminal action
or proceeding, provided further that such director or officer has no reasonable
cause to believe his conduct was unlawful.
Section 145(b) empowers a corporation to indemnify any director or
officer, or former director or officer, who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of the corporation to procure a judgment in its favor by reason of
the fact that such person acted in any of the capacities set forth above,
against expenses (including attorneys' fees) actually and reasonably incurred in
connection with the defense or settlement of such action or suit provided that
such director or officer acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the corporation,
except that no indemnification may be made in respect of any claim, issue or
matter as to which such director or officer shall have been adjudged to be
liable to the corporation unless and only to the extent that the Delaware Court
of Chancery or the court in which such action or suit was brought shall
determine upon application that despite the adjudication of liability but in
view of all of the circumstances of the case, such director or officer is fairly
and reasonably entitled to indemnity for such expenses which the Delaware Court
of Chancery or such other court shall deem proper.
Section 145 further provides that (i) to the extent a present or former
director or officer of a corporation has been successful in the defense of any
action, suit or proceeding referred to in subsections (a) and (b) or in the
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
such person, in connection therewith; and (ii) indemnification and advancement
of expenses provided for, by, or granted pursuant to, Section 145 shall not be
deemed exclusive of any other rights to which the indemnified party may be
entitled. In addition, Section 145 empowers the corporation to purchase and
maintain insurance on behalf of any person who is or was a director or officer
of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liabilities under Section 145.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
- ---------------- -----------------------
4.1 Restated Certificate of Incorporation of the Registrant
(incorporated by reference to
II-2
Exhibit 3.1 to the Registrant's Registration Statement (No.
33-54657) on Form S-3 as filed on July 20, 1994).
4.2 Bylaws of the Registrant, as amended (incorporated by
reference to Exhibit 3.1 to the Registrant's Annual Report
on Form 10-K for the fiscal year ended December 31, 2000).
4.3 Stock Option Agreement by and between the Registrant and
J. Frank Harrison, Jr., dated as of March 8, 1989
(incorporated by reference to Exhibit 10.86 to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended January 1, 1995)
4.4 Stock Option Agreement by and between the Registrant and
J. Frank Harrison, III, dated as of August 9, 1989
(incorporated by reference to Exhibit 10.87 to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended January 1, 1995).
*5.1 Opinion of Kennedy Covington Lobdell & Hickman, L.L.P.
*23.1 Consent of Kennedy Covington Lobdell & Hickman, L.L.P.
(included in Exhibit 5)
*23.2 Consent of PricewaterhouseCoopers LLP
*24 Power of Attorney (included on signature page)
___________________
*Filed herewith
ITEM 9. UNDERTAKINGS.
(a) 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;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this
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 this
registration statement. Notwithstanding the
foregoing, any increase or decrease in the volume
of securities offered (if the total dollar value
of securities offered would not exceed that which
was registered) and any deviation from the low or
high end of the estimated maximum offering range
may be reflected in the form of a prospectus filed
with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price
represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement; and
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(iii) to include any material information with respect
to the plan of distribution not previously
disclosed in this registration statement or any
material change to such this registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)
(ii) do not apply if the registration statement is on Form
S-3, Form S-8 or Form F-3, and the information required to
be included in a post effective amendment by those
paragraphs is contained in periodic reports filed with or
furnished to the SEC by the registrant pursuant to Section
13 or 15(d) of the Exchange Act that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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.
(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.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act that is incorporated
by reference in this registration statement 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the SEC 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-4
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Charlotte, North Carolina on May 13, 2002.
COCA-COLA BOTTLING CO. CONSOLIDATED
By: /s/ David V. Singer
------------------------------------
Name: David V. Singer
Title: Executive Vice President
and Chief Financial Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated. Each person whose name appears below hereby constitutes David
V. Singer such person's true and lawful attorney, with full power of
substitution to sign for such person and in such person's name and capacity
indicated below, any and all amendments to this registration statement, and to
file the same with the Securities and Exchange Commission, hereby ratifying and
confirming such person's signature as it may be signed by said attorney to any
and all amendments.
Signature Title Date
Chairman of the Board of Directors, May 13, 2002
/s/ J. Frank Harrison, III Chief Executive Officer and Director
- -----------------------------
J. Frank Harrison, III
Chairman Emeritus of the Board of May 13, 2002
/s/ J. Frank Harrison, Jr Directors and Director
- -----------------------------
J. Frank Harrison, Jr.
/s/ H. W. McKay Belk Director May 13, 2002
- -----------------------------
H. W. McKay Belk
/s/ Sharon A. Decker Director May 13, 2002
- -----------------------------
Sharon A. Decker
President, Chief Operating Officer May 13, 2002
/s/ William B. Elmore Director
- -----------------------------
William B. Elmore
/s/ Reid M. Henson Director May 13, 2002
- -----------------------------
Reid M. Henson
/s/ Ned R. McWherter Director May 13, 2002
- -----------------------------
Ned R. McWherter
II-5
Vice Chairman of the Board of Directors May 13, 2002
/s/ James L. Moore, Jr and Director
- -----------------------------
James L. Moore, Jr.
/s/ John W. Murrey, III Director May 13, 2002
- -----------------------------
John W. Murrey, III
/s/ Carl Ware Director May 13, 2002
- -----------------------------
Carl Ware
/s/ Dennis A. Wicker Director May 13, 2002
- -----------------------------
Dennis A. Wicker
Executive Vice President and Chief May 13, 2002
/s/ David V. Singer Financial Officer
- -----------------------------
David V. Singer
Vice President, Controller and Chief May 13, 2002
/s/ Steven D. Westphal Accounting Officer
- -----------------------------
Steven D. Westphal
II-6
EXHIBIT INDEX
Exhibit
Number Description
- ------------ -----------------------
4.1 Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement (No. 33-54657) on Form S-3 as filed on
July 20, 1994).
4.2 Bylaws of the Registrant, as amended (incorporated by
reference to Exhibit 3.1 to the Registrant's Annual Report on
Form 10-K for the fiscal year ended December 31, 2000).
4.3 Stock Option Agreement by and between the Registrant and J.
Frank Harrison, Jr., dated as of March 8, 1989 (incorporated
by reference to Exhibit 10.86 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended January 1, 1995)
4.4 Stock Option Agreement by and between the Registrant and J.
Frank Harrison, III, dated as of August 9, 1989 (incorporated
by reference to Exhibit 10.87 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended January 1,
1995).
*5.1 Opinion of Kennedy Covington Lobdell & Hickman, L.L.P.
*23.1 Consent of Kennedy Covington Lobdell & Hickman, L.L.P.
(included in Exhibit 5)
*23.2 Consent of PricewaterhouseCoopers LLP
*24 Power of Attorney (included on signature page)
______________________
*Filed herewith
Exhibit 5.1
[Letterhead of Kennedy Covington Lobdell & Hickman, L.L.P.]
May 13, 2002
Coca-Cola Bottling Co. Consolidated
4100 Coca-Cola Plaza
Charlotte, North Carolina 28211
Ladies and Gentlemen:
You have requested our opinion in connection with the registration under
the Securities Act of 1933, as amended, of up to 250,000 shares (the "Shares")
of Common Stock of Coca-Cola Bottling Co. Consolidated, a Delaware corporation
(the "Company"), by the Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission in
connection with the J. Frank Harrison, Jr. Stock Option Agreement dated March 8,
1989 and the J. Frank Harrison, III Stock Option Agreement dated August 9, 1989
(collectively, the "Stock Option Agreements").
We have made such investigations of law and examined originals or copies of
such documents, corporate records, certificates and other instruments that we
have deemed necessary or appropriate for purposes of giving the opinions
expressed herein.
Based upon the foregoing, we are of the opinion that the Shares have been
duly and validly authorized and, when issued and sold as described in the
Registration Statement in accordance with the terms of the Stock Option
Agreements, will be legally issued, fully paid and non-assessable.
This opinion is rendered to you and is solely for your benefit in
connection with the registration of the Shares. This opinion may not be relied
upon by any other person or used for any other purpose without our prior written
consent. We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the caption
"LEGAL MATTERS" in the Reoffer Prospectus included as part of the Registration
Statement.
Very truly yours,
/s/ Kennedy Covington Lobdell & Hickman, L.L.P.
KENNEDY COVINGTON LOBDELL & HICKMAN, L.L.P.
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 15, 2002 relating to the
financial statements and financial statement schedule of Coca-Cola Bottling Co.
Consolidated (the "Company"), which appears in the Company's Annual Report on
Form 10-K for the year ended December 30, 2001. We also consent to the
references to us under the headings "Experts" in such Registration
Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Charlotte, North Carolina
May 13, 2002
