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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)
Coca-Cola Bottling Co. Consolidated
(Name of Issuer)
Coca-Cola Bottling Co. Consolidated
Common Stock, $1.00 par value
(Title of Class of Securities)
191098-10-2
(CUSIP Number)
John F. Henry, Jr.
Witt, Gaither & Whitaker, P.C.
1100 SunTrust Bank Building
Chattanooga, Tennessee 37402
(423) 265-8881
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
November 23, 1998
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [_].
Check the following box if a fee is being paid with the statement [_].
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
J. Frank Harrison, Jr.; J. Frank Harrison, III; Reid M. Henson; J. Frank
Harrison Family, LLC; JFH Family Limited Partnership - FH1; JFH Family
Limited Partnership - SW1; and JFH Family Limited Partnership - DC1, as a
group
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [_]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO (Transactions reported herein consist of exchanges and transfers
involving shares already owned by certain of the Reporting Persons)
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States (see separate cover pages for individual Reporting Persons
who are not natural persons).
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 4,804,772 shares
SHARES -----------------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
0 shares
OWNED BY
-----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 2,086,821 shares
PERSON -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
0 shares
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,804,772 shares
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
55.82%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
N/A (See separate cover sheets for each member of group)
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
J. Frank Harrison, Jr.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [_]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO (Transactions reported herein consist of exchanges and transfers
involving shares already owned by certain of the Reporting Persons)
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 2,177,106 shares
SHARES -----------------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
0 shares
OWNED BY
-----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 1,705,534 shares
PERSON -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
0 shares
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,177,106 shares
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
25.72%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
J. Frank Harrison, III
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [_]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO (Transactions reported herein consist of exchanges and transfers
involving shares already owned by certain of the Reporting Persons)
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 2,625,666 shares
SHARES -----------------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
0 shares
OWNED BY
-----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 143,501 shares
PERSON -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
235,786 shares
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,861,452 shares
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
33.64%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Reid M. Henson
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [_]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO (Transactions reported herein consist of exchanges and transfers
involving shares already owned by certain of the Reporting Persons)
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 2,000 shares
SHARES -----------------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
0 shares
OWNED BY
-----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 2,000 shares
PERSON -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
235,786 shares
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
237,786 shares
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.84%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
J. Frank Harrison Family, LLC
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [_]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO (Transactions reported herein consist of exchanges and transfers
involving shares already owned by certain of the Reporting Persons)
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Tennessee
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 1,605,534 shares
SHARES -----------------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
0 shares
OWNED BY
-----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 1,605,534 shares
PERSON -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
0 shares
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,605,534 shares
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.19%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO (Limited Liability Company)
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
JFH Family Limited Partnership - FH1
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [_]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO (Transactions reported herein consist of exchanges and transfers
involving shares already owned by certain of the Reporting Persons)
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Tennessee
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 535,178 shares
SHARES -----------------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
0 shares
OWNED BY
-----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 535,178 shares
PERSON -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
0 shares
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
535,178 shares
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.40%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
JFH Family Limited Partnership - SW1
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [_]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO (Transactions reported herein consist of exchanges and transfers
involving shares already owned by certain of the Reporting Persons)
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Tennessee
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 535,178 shares
SHARES -----------------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
0 shares
OWNED BY
-----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 535,178 shares
PERSON -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
0 shares
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
535,178 shares
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.40%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
JFH Family Limited Partnership - DC1
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [_]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO (Transactions reported herein consist of exchanges and transfers
involving shares already owned by certain of the Reporting Persons)
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Tennessee
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 535,178 shares
SHARES -----------------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
0 shares
OWNED BY
-----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 535,178 shares
PERSON -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
0 shares
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
535,178 shares
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.40%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Item 1. Security and Issuer.
Coca-Cola Bottling Co. Consolidated Common Stock, $1.00 par value
Coca-Cola Bottling Co. Consolidated ("Consolidated")
1900 Rexford Road
Charlotte, NC 28211
Item 2. Identity and Background.
This Statement is being filed on behalf of: J. Frank Harrison, Jr.; J.
Frank Harrison, III; Reid M. Henson; J. Frank Harrison Family, LLC; JFH Family
Limited Partnership - FH1; JFH Family Limited Partnership - SW1; and JFH Family
Limited Partnership - DC1. J. Frank Harrison, Jr. is the father of J. Frank
Harrison, III.
J. Frank Harrison Family, LLC is the general partner of each of the three
Harrison family limited partnerships (JFH Family Limited Partnership - FH1, JFH
Family Limited Partnership - SW1, and JFH Family Limited Partnership - DC1). As
described in more detail in Item 3 hereof, J. Frank Harrison, Jr. is designated
as the "Chief Manager" and the "Consolidated Stock Manager" under the Operating
Agreement for J. Frank Harrison Family, LLC.
A. J. Frank Harrison, Jr.
(a) J. Frank Harrison, Jr.
(b) Suite 901 - Tallan Building
2 Union Square
Chattanooga, TN 37402
(c) Chairman - Emeritus of the Board of Directors
Coca-Cola Bottling Co. Consolidated
1900 Rexford Road
Charlotte, North Carolina 28211
(d) No.
(e) No.
(f) United States Citizen
B. J. Frank Harrison, III
(a) J. Frank Harrison, III
(b) 1900 Rexford Road
Charlotte, North Carolina 28211
(c) Chairman of the Board of Directors and Chief Executive Officer
Coca-Cola Bottling Co. Consolidated
1900 Rexford Road
Charlotte, North Carolina 28211
(d) No.
(e) No.
(f) United States Citizen
C. Reid M. Henson
(a) Reid M. Henson
(b) Suite 901 - Tallan Building
2 Union Square
Chattanooga, TN 37402
(c) Vice Chairman of the Board of Directors
Coca-Cola Bottling Co. Consolidated
1900 Rexford Road
Charlotte, North Carolina 28211
(d) No.
(e) No.
(f) United States Citizen
D. J. Frank Harrison Family, LLC
(a) Name: J. Frank Harrison Family, LLC ("Harrison Family, LLC")
(b) Principal General Partner of three family limited partnerships.
Business:
(c) Principal Suite 901 - Tallan Building
Business 2 Union Square
Address/ Chattanooga, TN 37402
Office:
(d) No.
(e) No.
E. JFH Family Limited Partnership-FH1
(a) Name: JFH Family Limited Partnership-FH1 ("FH1 Partnership")
(b) Principal
Business: Family limited partnership, formed to enhance and
preserve the assets of J. Frank Harrison, Jr. and his
issue.
(c) Principal Suite 901 - Tallan Building
Business 2 Union Square
Address/ Chattanooga, TN 37402
Office:
(d) No.
(e) No.
F. JFH Family Limited Partnership-SW1
(a) Name: JFH Family Limited Partnership-SW1 ("SW1 Partnership")
(b) Principal
Business: Family limited partnership, formed to enhance and
preserve the assets of J. Frank Harrison, Jr. and his
issue.
(c) Principal Suite 901 - Tallan Building
Business 2 Union
Address/ Chattanooga, TN 37402
Office:
Square
(d) No.
(e) No.
G. JFH Family Limited Partnership-DC1
(a) Name: JFH Family Limited Partnership-DC1 ("DC1 Partnership")
(b) Principal
Business: Family limited partnership, formed to enhance and
preserve the assets of J. Frank Harrison, Jr. and his
issue.
(c) Principal Suite 901 - Tallan Building
Business 2 Union Square
Address/ Chattanooga, TN 37402
Office:
(d) No.
(e) No.
Item 3. Source and Amount of Funds or Other Consideration.
J. Frank Harrison, III, J. Frank Harrison, Jr. and Reid M. Henson, acting
as a group, may be deemed to have acquired "beneficial ownership" within the
meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended (the
"Act"), and the rules and regulations thereunder, of the shares of Common Stock
reported in the original filing of this Statement as a result of the Voting
Agreement among J. Frank Harrison, III, J. Frank Harrison, Jr., Reid M. Henson
(in his capacity as co-trustee of certain trusts) and The Coca-Cola Company,
dated as of January 27, 1989 (the "Voting Agreement") and as described in Item 6
below, because, as a consequence of executing the Voting Agreement, they may be
deemed to have formed a "group" within the meaning of Section 13(d) of the Act
for the purpose of acquiring, holding, voting or disposing of equity securities
of Consolidated, as contemplated by Rule 13c-5 under the Act. The acquisition of
such beneficial ownership by the stockholders as a group did not require the
payment of any funds or other consideration (other than as described in response
to Item 6 below), because all of the shares of Common Stock that may be deemed
to be beneficially owned by the stockholders as a group at the present time were
either beneficially owned by one or more of the stockholders prior to January
27, 1989 or were acquired as the result of the grant of the Irrevocable Proxy,
as defined and described below in Item 4.
Pursuant to the terms of a Letter Agreement dated March 24, 1993 (the
"Letter of Intent"), a Reorganization Plan and Agreement dated April 2, 1993
(the "RPA") and a Merger Agreement dated April 2, 1993 (the "Merger Agreement"),
Consolidated acquired all outstanding shares of capital stock of Whirl-i-Bird,
Inc. ("Whirl-i-Bird") from J. Frank Harrison, Jr. (as sole shareholder of
Whirl-i-Bird) in exchange for 80,000 shares of Consolidated's Common Stock. The
acquisition was accomplished through the merger of a wholly owned subsidiary of
Consolidated with and into Whirl-i-Bird (the "Merger"). Additional details of
the Merger are described in Item 6.
Effective November 23, 1998, J. Frank Harrison, Jr. exercised rights which
he previously had been granted by Consolidated to exchange 792,796 shares of
Common Stock for 792,796 shares of Class B Common Stock (the "Harrison
Exchange"). Mr. Harrison already owned the shares of Common Stock used to make
this exchange.
The sole initial Members of Harrison Family, LLC are J. Frank Harrison, Jr.
(in his individual capacity) and J. Frank Harrison, III and Reid M. Henson (in
their capacity as co-trustees under the Irrevocable Trust Agreement of J. Frank
Harrison dated October 14, 1988 (the "JFH Trust")). Effective November 23, 1998,
Harrison Family, LLC was capitalized by its Members through the contribution of
previously owned shares of Consolidated's Class B Common Stock (convertible into
Common Stock) in the following amounts: J. Frank Harrison, Jr. - 30,114 shares;
JFH Trust - 1,998 shares.
The general partner of FH1 Partnership is Harrison Family, LLC, and the
limited partners are J. Frank Harrison, Jr. (in his individual capacity) and J.
Frank Harrison, III and Reid M. Henson (in their capacity as co-trustees under
the JFH Trust). Effective November 23, 1998, FH1 Partnership was capitalized
through the contribution of previously owned shares of Consolidated's Class B
Common Stock (convertible into Common Stock) by its general and
limited partners in the following amounts: Harrison Family, LLC - 10,704 shares;
J. Frank Harrison, Jr. - 492,826 shares; and JFH Trust - 32,648 shares.
The general partner of SW1 Partnership is Harrison Family, LLC, and the
limited partners are J. Frank Harrison, Jr. (in his individual capacity) and J.
Frank Harrison, III and Reid M. Henson (in their capacity as co-trustees under
the JFH Trust). Effective November 23, 1998, SW1 Partnership was capitalized
through the contribution of previously owned shares of Consolidated's Class B
Common Stock (convertible into Common Stock) by its general and limited partners
in the following amounts: Harrison Family, LLC - 10,704 shares; J. Frank
Harrison, Jr. - 492,826 shares; and JFH Trust - 32,648 shares.
The general partner of DC1 Partnership is Harrison Family, LLC, and the
limited partners are J. Frank Harrison, Jr. (in his individual capacity) and J.
Frank Harrison, III and Reid M. Henson (in their capacity as co-trustees under
the JFH Trust). Effective November 23, 1998, DC1 Partnership was capitalized
through the contribution of previously owned shares of Consolidated's Class B
Common Stock (convertible into Common Stock) by its general and limited partners
in the following amounts: Harrison Family, LLC - 10,704 shares; J. Frank
Harrison, Jr. - 492,826 shares; and JFH Trust - 32,648 shares.
Item 4. Purpose of Transaction.
On January 27, 1989, J. Frank Harrison, III, J. Frank Harrison, Jr. and
Reid M. Henson, Co-Trustee entered into a Voting Agreement with The Coca-Cola
Company respecting all shares of Common Stock and Class B Common Stock of
Consolidated which they held or, as to which, in the case of J. Frank Harrison,
III and J. Frank Harrison, Jr., they had the right to vote or, as to Reid M.
Henson, he had the right to vote as Co-Trustee of certain trusts (the "Voting
Agreement"). Pursuant to the Voting Agreement, J. Frank Harrison, III, J. Frank
Harrison, Jr. and Reid M. Henson agreed to vote their shares of Common Stock and
Class B Common Stock for a nominee of The Coca-Cola Company for election, as
director, to the Board of Directors of Consolidated. An irrevocable proxy was
granted to J. Frank Harrison, III, for life and then to J. Frank Harrison, Jr.
by The Coca-Cola Company with respect to all shares of Class B. Common Stock and
Common Stock held by it during the term of the Voting Agreement (the
"Irrevocable Proxy").
The Class B Common Stock is not a class of securities registered under
Section 12 of the Act; however, it is entitled to 20 votes per share and is
convertible on a share for share basis into Common Stock.
The Irrevocable Proxy covers voting on the election of directors and any
other matters on which holders of Common Stock or Class B Common stock are
entitled to vote; however, the Irrevocable Proxy does not cover voting with
respect to any merger, consolidation, sale of all or substantially all of
Consolidated's assets, any other corporate reorganization or other similar
corporate transaction involving Consolidated in which Messrs. Harrison, III and
Harrison, Jr. would not exercise voting control over the resulting entity.
The Coca-Cola Company agreed in the Voting Agreement to support the control
of Consolidated by the Harrison family, provided that Messrs. Harrison, III and
Harrison, Jr. or either of them are actively involved in Consolidated's
management.
The Voting Agreement and Irrevocable Proxy replaced a voting agreement and
irrevocable proxy among J. Frank Harrison, Jr., J. Frank Harrison, III and The
Coca-Cola Company which was terminated on January 27, 1989. Certain information
concerning the previous voting agreement and irrevocable proxy were disclosed in
a statement on Schedule 13G filed by J. Frank Harrison, Jr.
The principal purpose of the Merger, which was the subject of Amendment No.
2 to this Statement, was the acquisition by Consolidated of control over
Whirl-i-Bird's primary asset, a 1979 Sikorsky Aircraft Company Model S-76-A
helicopter. Consolidated had previously leased this helicopter from Whirl-i-Bird
for approximately 80% of the aircraft's available hours.
J. Frank Harrison, Jr. and the co-trustees of the JFH Trust formed Harrison
Family, LLC and three family limited partnerships (FH1 Partnership, SW1
Partnership, and DC1 Partnership), and capitalized these entities in the
transactions described in Item 3 above, to enhance and preserve the assets of J.
Frank Harrison, Jr. and his issue and to provide for continuity concerning the
interests of J. Frank Harrison, Jr. and members of his family in Consolidated.
Otherwise than as described herein, the reporting persons do not presently
have any plans or proposals which relate to or would result in:
(a) The acquisition by any person of additional securities of the issuer,
or the disposition of securities of the issuer;
(b) An extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the issuer or any of its
subsidiaries;
(c) A sale or transfer of a material amount of assets of the issuer or any
of its subsidiaries;
(d) Any change in the present board of directors or management of the
issuer, including any plans or proposals to change the number or term
of directors or to fill any existing vacancies on the board;
(e) Any material change in the present capitalization or dividend policy
of the issuer;
(f) Any other material change in the issuer's business or corporate
structure, including but not limited to, if the issuer is a registered
closed-end investment company, any plans or proposals to make any
changes in its investment policy for which a vote is required by
section 13 of the Investment Company Act of 1940;
(g) Changes in the issuer's charter, bylaws or instruments corresponding
thereto or other actions which may impede the acquisition of control
of the issuer by any person;
(h) Causing a class of securities of the issuer to be delisted from a
national securities exchange or to cease to be authorized to be quoted
in an inter-dealer quotation system of a registered national
securities association;
(i) A class of equity securities of the issuer becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Act;
or
(j) Any action similar to any of those enumerated above.
Item 5. Interest in Securities of the Issuer.
(a)&(b) Amount and Nature of Beneficial Ownership Reported:
The Reporting Persons, as a group, collectively have beneficial ownership
with respect to an aggregate of 4,804,772 shares (or 55.82%) of Consolidated's
Common Stock. The Common Stock has one vote per share on all matters submitted
for a vote of Consolidated's shareholders and the Class B Common Stock has 20
votes per share on such matters. Accordingly, the beneficial ownership reported
herein for the Reporting Persons represents (collectively) approximately 92.8%1
of the total voting power of the outstanding shares of Consolidated's Common
Stock and Class B Common Stock. Such beneficial ownership is held as follows:
(i) 1,605,534 shares of Class B Common Stock (convertible into Common
Stock) held directly by three family limited partnerships (with
535,178 shares held by each of the FH1 Partnership, the SW1
Partnership and the DC1 Partnership), as to which J. Frank
Harrison, Jr. possesses sole voting power and sole investment
power pursuant to the terms of the operating agreement of
Harrison Family, LLC (which is the general partner of each such
partnership);
(ii) 235,786 shares of Common Stock held by a trust for the benefit of
certain relatives of J. Frank Harrison, Jr., as to which Mr.
Harrison, Jr. possesses sole voting power;
(iii) 1,984,495 shares of Common Stock and 497,670 shares of Class B
Common Stock (convertible into Common Stock) held directly by The
Coca-Cola Company, subject to the terms of the Voting Agreement
and Irrevocable Proxy granted to J. Frank Harrison, III during
his lifetime and thereafter to J. Frank Harrison, Jr. by The
Coca-Cola Company, as to which shares The Coca-Cola Company holds
sole investment power;
(iv) 235,786 shares of Class B Common Stock (convertible into shares
of Common Stock) held by a trust for the benefit of J. Frank
Harrison, Jr. and certain of his relatives, as to which Mr.
Harrison, Jr. possesses sole voting power and as to which J.
Frank Harrison, III and Reid M. Henson share investment power as
Co-Trustees;
(v) 741 shares of Common Stock and 260 shares of Class B Common Stock
(convertible into Common Stock) held by J. Frank Harrison, III as
custodian
- ----------
(1) The percentage of class shown above for the Common Stock gives effect to (i)
the conversion of shares of Class B Common Stock held by the Reporting Persons
into Common Stock and (ii) the exercise of presently exercisable options to
acquire a total of 242,500 shares of Common Stock held by J. Frank Harrison, Jr.
and J. Frank Harrison, III, but the calculation of the Reporting Persons'
percentage of total voting power does not give effect to such theoretical
conversion of shares or exercise of options. If such transactions were presumed
to have occurred, the Reporting Persons would own beneficially securities
representing approximately 55.9% of Consolidated's total voting power.
for certain of his children under the North Carolina Uniform
Gifts to Minors Act, as to which Mr. Harrison, III possesses sole
voting and investment power;
(vi) 2,000 shares of Common Stock owned directly by Reid M. Henson, as
to which he possesses sole voting and investment power;
(vii) 100,000 shares of Common Stock subject to presently exercisable
stock options held by J. Frank Harrison, Jr. as to which (if such
option were exercised) Mr. Harrison, Jr. would possess sole
voting and investment power; and
(viii) 142,500 shares of Common Stock subject to presently exercisable
stock options held by J. Frank Harrison, III as to which (if such
option were exercised) Mr. Harrison, III would possess sole
voting and investment power.
(c) Recent Transactions.
See response to Items 3, 4 and 6.
(d) Ownership of More than Five Percent on Behalf of Another Person:
The Co-Trustees of a trust for the benefit of certain relatives of J. Frank
Harrison, Jr. hold sole investment power with respect to 235,786 shares of
Common Stock, the power to vote such shares being held by Mr. Harrison, Jr.
Other than as described in response to Item 5 above, no persons other than
the persons filing this statement are known to have the right to receive or the
power to direct the receipt of dividends or the proceeds from the sale of such
securities.
(e) Ownership of Five Percent or Less or Class:
N/A
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer.
On December 17, 1988 J. Frank Harrison, Jr., J. Frank Harrison, III and
certain family-related trusts affiliated with J. Frank Harrison, Jr. and J.
Frank Harrison, III (collectively referred to in this Item 6 as the
"Harrisons"), entered into an agreement with The Coca-Cola Company (the
"Shareholder's Agreement").
Pursuant to the Shareholder's Agreement, which has a term of ten years,
expiring in 1998: (i) the Harrisons expressed a commitment to remain actively
involved and interested in the
management and operations of Consolidated during the term of the Shareholder's
Agreement; (ii) the Harrisons agreed not to dispose of their shares of Common
Stock and Class B Common Stock during the term of the Agreement (other than to
certain permitted transferees, i.e., the lineal descendants of the Harrisons,
certain other related persons, trusts and entities and subject to any such
permitted transferee's agreeing to be bound by the terms of the Shareholder's
Agreement) without first offering such shares to The Coca-Cola Company; (iii)
the Harrisons were granted the right, exercisable for a period of five years
following the fifth anniversary of the Shareholder's Agreement to cause The
Coca-Cola Company to purchase all or a portion of their shares of Common Stock
and Class B Common Stock subject to the Shareholder's Agreement at a price per
share and on such terms as determined by the Shareholder's Agreement; and (iv)
The Coca-Cola Company was granted the right to acquire the Harrisons' shares of
Common Stock and Class B Common Stock at a price per share and on such terms as
determined by the Shareholder's Agreement upon the circumstance of an offer
having been made which, if consummated, would result in a change in control of
Consolidated or the sale of all or substantially all of the assets of
Consolidated, and the Harrisons intend to vote in favor of such transaction.
On January 27, 1989, J. Frank Harrison, III, J. Frank Harrison, Jr. and
Reid M. Henson, Co-Trustee entered into a Voting Agreement and Irrevocable Proxy
with The Coca-Cola Company concerning shares of Consolidated's Common Stock and
Class B Common Stock, as described in more detail above in Item 4 of this
Statement.
On April 9, 1993, pursuant to the terms of the RPA and the Merger
Agreement, a wholly owned subsidiary of Consolidated was merged with and into
Whirl-i-Bird and Whirl-i-Bird became a wholly owned subsidiary of Consolidated.
In connection with the Merger, Mr. Harrison, Jr., sole shareholder of
Whirl-i-Bird, received 80,000 shares of Consolidated's Common Stock in exchange
for all of the issued and outstanding shares of Whirl-i-Bird's capital stock.
For purposes of the Merger exchange, Consolidated's Common Stock was valued by
the parties at $20 per share, the closing price for such stock on the NASDAQ
National Market System on March 17, 1993 (the date that Consolidated's Board of
Directors approved the form of consideration for the Merger). The number of
Consolidated Shares to be delivered in exchange for Whirl-i-Bird's stock was
determined based on the fair market value of Whirl-i-Bird's balance sheet. The
fair market value of the balance sheet was determined by subtracting total
liabilities (approximately $325,000) from the fair value of net assets of
Whirl-i-Bird. Fair value of Whirl-i-Bird's net assets consisted of cash
(approximately $25,000) and the average of three appraisals of Whirl-i-Bird's
primary asset, a 1979 Sikorsky Aircraft Company Model S-76-A helicopter (which
appraisals averaged approximately $1,900,000).
The shares issued to Mr. Harrison, Jr. in connection with the Merger have
not been registered by Consolidated, in reliance on applicable registration
exemptions contained in federal and state securities laws. The certificate
issued to Mr. Harrison, Jr. representing such shares is legended to reflect the
restricted nature of the shares. Under Section 7.4 of the RPA, Consolidated
granted Mr. Harrison, Jr. certain "on demand" and "piggyback" registration
rights with respect to the shares of Common Stock issued in the Merger, subject
to the limitations contained in the RPA. The RPA also contains certain
representations and warranties given by Consolidated, Consolidated's merging
subsidiary, Mr. Harrison, Jr. and Whirl-i-Bird in connection with the Merger.
For a complete description of the terms and conditions of the Merger and
the related issuance to Mr. Harrison, Jr. of 80,000 shares of Consolidated's
Common Stock, reference is hereby made to the Letter of Intent, the RPA and the
Merger Agreement (Exhibits 2.1, 2.2 and 2.3, respectively, to Amendment No. 2 to
this Statement). The Letter of Intent, the RPA and the Merger Agreement are
hereby expressly incorporated herein by reference and made a part hereof.
As general partner of each of FH1 Partnership, SW1 Partnership, and DC1
Partnership, Harrison Family, LLC holds voting power and investment power with
respect to all of the shares of Consolidated stock held by each of these family
limited partnerships. Under the terms of the Operating Agreement for Harrison
Family, LLC, J. Frank Harrison, Jr., as Consolidated Stock Manager, has sole
voting power and investment power with respect to which the limited liability
company exercises voting power or investment power (either directly or in its
capacity as general partner of the three Harrison family limited partnerships).
Effective November 23, 1998, in connection with the Harrison Exchange and
the related Harrison family limited partnership transactions described in Item 3
of this Amendment No. 3, The Coca-Cola Company and one of its subsidiaries
(which holds certain of the Coca-Cola Company's shares of Consolidated Common
Stock) entered into an Agreement with J. Frank Harrison, Jr., J. Frank Harrison,
III (individually and in his capacity as co-trustee of certain Harrison family
trusts) and Reid M. Henson (in his capacity as co-trustee of certain Harrison
family trusts) (the "Amendment Agreement"), pursuant to which: (A) the
Shareholder's Agreement was amended to include Harrison Family, LLC and each of
the three family limited partnerships (the FH1 Partnership, the SW1 Partnership
and the DC1 Partnership) within the definition of "Permitted Transferees" under
such agreement; (B) the Voting Agreement was amended to confirm that the
Irrevocable Proxy would not terminate as a result of the transfers to Harrison
Family, LLC and the family limited partnerships described in Item 3 hereof; and
(C) The Coca-Cola Company agreed, for purposes of a Stock Rights and
Restrictions Agreement dated January 27, 1989 between The Coca-Cola Company and
Consolidated, that the transfers to Harrison Family, LLC and the family limited
partnerships described in Item 3 hereof would not affect the call option granted
by The Coca-Cola Company to Consolidated under Section 6 of such agreement.
Other than the Voting Agreement, the Irrevocable Proxy, the Shareholder's
Agreement, Amendment Agreement as described herein, none of J. Frank Harrison,
Jr., J. Frank Harrison, III, Reid M. Henson, Harrison Family, LLC, FH1
Partnership, SW1 Partnership or DC1 Partnership is a party to any contracts,
arrangements, understandings or relationships (legal or otherwise) with any
person with respect to any securities of Consolidated.
Item 7. Material to Be Filed as Exhibits.
The following exhibits are filed with this Amendment No. 3:
Exhibit 24.1 Power of Attorney dated December 1, 1998, executed
by J. Frank Harrison Family, LLC.
Exhibit 24.2 Power of Attorney dated December 1, 1998, executed
by JFH Family Limited Partnership - FH1.
Exhibit 24.3 Power of Attorney dated December 1, 1998, executed
by JFH Family Limited Partnership - SW1.
Exhibit 24.4 Power of Attorney dated December 1, 1998, executed
by JFH Family Limited Partnership - DC1.
Exhibit 99.1 Shareholder's Agreement dated December 17, 1988
among The Coca-Cola Company, J. Frank Harrison,
Jr., J. Frank Harrison, III and Reid M. Henson (in
his capacity as Co-Trustee of certain trusts).
Exhibit 99.2 Voting Agreement and Irrevocable Proxy dated
January 27, 1989 among The Coca-Cola Company, J.
Frank Harrison, Jr., J. Frank Harrison, III and
Reid M. Henson (in his capacity as Co-Trustee of
certain trusts).
Exhibit 99.3 Agreement Regarding Joint Filing of Statement on
Schedule 13D dated December 1, 1998.
Exhibit 99.4 Agreement dated November 23, 1998 among The
Coca-Cola Company, J. Frank Harrison, Jr., J.
Frank Harrison, III and Reid M. Henson (in his
capacity as Co-Trustee of certain trusts).
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
December 1, 1998 /s/ Reid M. Henson
- ---------------- ------------------
Date Reid M. Henson
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
December 1, 1998 /s/ Reid M. Henson, for
- ---------------- -----------------------
Date J. Frank Harrison, Jr.*
* Executed by Reid M. Henson pursuant to Power of Attorney.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
December 1, 1998 /s/ Reid M. Henson, for
- ---------------- -----------------------
Date J. Frank Harrison, III *
* Executed by Reid M. Henson pursuant to Power of Attorney.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
J. Frank Harrison Family, LLC
December 1, 1998 /s/ Reid M. Henson, for
- ---------------- -----------------------------
Date By: J. Frank Harrison, Jr.*
Title: Chief Manager
* Executed by Reid M. Henson pursuant to Power of Attorney.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
JFH Family Limited Partnership - FH1
By: J. Frank Harrison Family, LLC,
its General Partner
December 1, 1998 /s/ Reid M. Henson, for
- ---------------- ------------------------------------
Date By: J. Frank Harrison, Jr. *
Title: Chief Manager
* Executed by Reid M. Henson pursuant to Power of Attorney.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
JFH Family Limited Partnership - SW1
By: J. Frank Harrison Family, LLC,
its General Partner
December 1, 1998 /s/ Reid M. Henson, for
- ---------------- ------------------------------------
Date By: J. Frank Harrison, Jr.*
Title: Chief Manager
* Executed by Reid M. Henson pursuant to Power of Attorney.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
JFH Family Limited Partnership - DC1
By: J. Frank Harrison Family, LLC,
its General Partner
December 1, 1998 /s/ Reid M. Henson, for
- ---------------- -----------------------
Date By: J. Frank Harrison, Jr.*
Title: Chief Manager
* Executed by Reid M. Henson pursuant to Power of Attorney.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints J. Frank Harrison, Jr., J. Frank Harrison, III and Reid M. Henson, and
each of them, its true and lawful attorney-in-fact and agent, with full power of
substitution and re-substitution, for it and in its name, place and stead, in
any and all capacities, to sign the Schedule 13D to be filed with the Securities
and Exchange Commission by the undersigned, to sign the Agreement Regarding
Joint Filing of Statement on Schedule 13D, to sign any and all amendments to
such Schedule 13D and such Agreement Regarding Joint Filing of Statement on
Schedule 13D, and to file the same with exhibits thereto, and other documents in
connection therewith with the Securities and Exchange Commission, granting unto
each such attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite or necessary to be done in and about the
premises as fully and to all intents and purposes as it might or could do in
person, hereby ratifying and confirming all that each such attorney-in-fact,
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
J. Frank Harrison Family, LLC
/s/ J. Frank Harrison, Jr.
------------------------------
By: J. Frank Harrison, Jr.
Title: Chief Manager
December 1, 1998
------------------------------
Effective Date
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints J. Frank Harrison, Jr., J. Frank Harrison, III and Reid M. Henson, and
each of them, its true and lawful attorney-in-fact and agent, with full power of
substitution and re-substitution, for it and in its name, place and stead, in
any and all capacities, to sign the Schedule 13D to be filed with the Securities
and Exchange Commission by the undersigned, to sign the Agreement Regarding
Joint Filing of Statement on Schedule 13D, to sign any and all amendments to
such Schedule 13D and such Agreement Regarding Joint Filing of Statement on
Schedule 13D, and to file the same with exhibits thereto, and other documents in
connection therewith with the Securities and Exchange Commission, granting unto
each such attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite or necessary to be done in and about the
premises as fully and to all intents and purposes as it might or could do in
person, hereby ratifying and confirming all that each such attorney-in-fact,
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
JFH Family Limited Partnership - FH1
By: J. Frank Harrison Family, LLC,
its General Partner
/s/ J. Frank Harrison, Jr.
------------------------------------
By: J. Frank Harrison, Jr.
Title: Chief Manager
December 1, 1998
------------------------------------
Effective Date
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints J. Frank Harrison, Jr., J. Frank Harrison, III and Reid M. Henson, and
each of them, its true and lawful attorney-in-fact and agent, with full power of
substitution and re-substitution, for it and in its name, place and stead, in
any and all capacities, to sign the Schedule 13D to be filed with the Securities
and Exchange Commission by the undersigned, to sign the Agreement Regarding
Joint Filing of Statement on Schedule 13D, to sign any and all amendments to
such Schedule 13D and such Agreement Regarding Joint Filing of Statement on
Schedule 13D, and to file the same with exhibits thereto, and other documents in
connection therewith with the Securities and Exchange Commission, granting unto
each such attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite or necessary to be done in and about the
premises as fully and to all intents and purposes as it might or could do in
person, hereby ratifying and confirming all that each such attorney-in-fact,
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
JFH Family Limited Partnership - SW1
By: J. Frank Harrison Family, LLC,
its General Partner
/s/ J. Frank Harrison, Jr.
------------------------------------
By: J. Frank Harrison, Jr.
Title: Chief Manager
December 1, 1998
------------------------------------
Effective Date
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints J. Frank Harrison, Jr., J. Frank Harrison, III and Reid M. Henson, and
each of them, its true and lawful attorney-in-fact and agent, with full power of
substitution and re-substitution, for it and in its name, place and stead, in
any and all capacities, to sign the Schedule 13D to be filed with the Securities
and Exchange Commission by the undersigned, to sign the Agreement Regarding
Joint Filing of Statement on Schedule 13D, to sign any and all amendments to
such Schedule 13D and such Agreement Regarding Joint Filing of Statement on
Schedule 13D, and to file the same with exhibits thereto, and other documents in
connection therewith with the Securities and Exchange Commission, granting unto
each such attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite or necessary to be done in and about the
premises as fully and to all intents and purposes as it might or could do in
person, hereby ratifying and confirming all that each such attorney-in-fact,
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
JFH Family Limited Partnership - DC1
By: J. Frank Harrison Family, LLC,
its General Partner
/s/ J. Frank Harrison, Jr.
------------------------------------
By: J. Frank Harrison, Jr.
Title: Chief Manager
December 1, 1998
------------------------------------
Effective Date
SHAREHOLDER'S AGREEMENT
THIS AGREEMENT, made and entered into this 17th day of December, 1988 (the
"Agreement"), by and among The Coca-Cola Company, a Delaware corporation (the
"Company") and J. Frank Harrison, J. Frank Harrison, III and any other person
related to or affiliated with J. Frank Harrison who has executed this Agreement
or otherwise agreed to be bound hereby (the latter persons being hereinafter
referred to individually as a "Harrison" or "Shareholder" and collectively as
the "Harrisons" or the "Shareholders");
WHEREAS, the Company and the Harrisons are substantial holders of the
Common Stock and Class B Common Stock of Coca-Cola Bottling Co. Consolidated
("Consolidated");
WHEREAS, the Harrisons have provided management and leadership of
Consolidated for many years and the Company desires to encourage them to
continue in their ownership of the Common Stock and the Class B Common Stock of
Consolidated and to continue to provide that leadership Consolidated;
WHEREAS, the Company desires to receive and the Harrisons wish to give
assurances against the transfer of their controlling shares to an unknown
purchaser; and
WHEREAS, the Harrisons are willing to commit to restrictions on their
ability to transfer their Common Stock and Class B Common Stock of Consolidated
in exchange for the commitment of the Company to assure them that if they
continue to hold their stock for at least an additional five years that they
will have an assured value of their stock at that time in the form of an
obligation of the Company to purchase all of the Harrisons' Common Stock and
Class B Common Stock at the option of the Harrisons at that time;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the Harrisons and the Company hereby agree as
follows:
Section 1. Harrisons Continued Involvement. Subject to the right and
obligation of the Board of Directors of Consolidated to elect and supervise
management and subject to maintaining satisfactory employment and other
contractual arrangements, J. Frank Harrison and J. Frank Harrison, III hereby
express their commitment to remain actively involved and interested On the
management and operations of Consolidated during the term of this Agreement.
Section 2. Certain Terms. For purposes of this Agreement, certain
terms are defined as follows:
(a) "Shares" shall mean any shares of the $1.00 par value per share Common
Stock of Consolidated and the $1.00 par value per share Class B Common Stock of
Consolidated or any other class of stock of Consolidated hereafter authorized
and issued, whether now owned or hereafter acquired by the Harrisons or any of
them, in any manner whatsoever, all of which shall be duly and timely legended
in accordance with Section 9 herein.
(b) "Initial Shares" shall mean the Shares specified on Schedule A hereto
which are owned by the Harrisons on the date of this Agreement and made subject
hereto, namely 712,796 shares of Common Stock and 1,048,524 shares of Class B
Common Stock.
(c) "Adjusted Initial Shares" shall mean the Initial Shares and the
Additional Shares, in each case as incremented, adjusted or converted pursuant
to any stock split, stock dividend, recapitalization, reorganization or the
like.
(d) "Additional Shares" shall mean the shares of Consolidated's Common
Stock or Class B Common Stock, if any, issued to either J. Frank Harrison or J.
Frank Harrison, III by Consolidated after the date hereof; provided that the
total number of Additional Shares shall in no event exceed ten percent (10%) of
the number of Initial Shares as of the date hereof (as such number of shares may
be appropriately adjusted in the manner contemplated in the preceding paragraph
(c)).
(e) "Offered Shares" shall mean any Shares offered pursuant to Section 4(a)
hereof.
(f) "Put Shares" shall mean all of the Adjusted Initial Shares owned by the
Harrisons and their Permitted Transferees which the Harrisons have elected to
put to the Company pursuant to a Put Notice delivered to KO as provided in
Section 7 hereof.
(g) "Permitted Transferee" of any Shareholder shall mean such Shareholder's
spouse, lineal descendants, adopted children, any spouse of any such lineal
descendant or adopted child, any trust created and existing solely for the
benefit of any such person and any organization described in Section 501(c)(3)
of the Internal Revenue Code, if such organization is exempt from tax under
Section 501(a) of such Code, any executor of such Shareholder's estate, or any
beneficiary of any trust which is a Shareholder; provided that no person or
organization shall be a Permitted Transferee unless he, she or it consents in
writing to be treated as a Harrison and be bound by all of their obligations
hereunder.
(h) "Sell" and "Sale" shall mean the making of any sale, exchange, gift,
bequest, devise, assignment, transfer, pledge, hypothecation or other
disposition or creation of a security interest of any kind in any of the Shares.
(i) "Selling Shareholder" shall mean one of the Harrisons or a Permitted
Transferee who desires to sell Shares, as provided in Section 4 hereof.
Section 3. Restrictions on Transfer. During the term of this Agreement, no
Shareholder shall Sell any of the Shares to any person except a Permitted
Transferee without first offering to sell such Shares to the Company in
accordance with Section 4, except that this restriction shall not apply to a
pledge which complies with Section 5 hereof. Any Shares sold to a Permitted
Transferee shall remain subject to the restrictions provided in this Agreement
in the same manner and to the same extent as if such Permitted Transferee were a
Shareholder and a party to this Agreement, and such Permitted Transferee shall,
by the acceptance of such Shares, become bound hereby; provided, however, that
no Sale to a Permitted Transferee shall be consummated until a written consent
of the proposed Permitted Transferee to be so bound has been delivered to the
Company.
Section 4. First Offer to the Company.
(a) If, at any time, the Harrisons, or any of them, or any Permitted
Transferee, shall have received a bona fide written offer to purchase all or any
part of the Shares owned by such person and desires to accept such offer (the
"Bona Fide Offer") on the terms and conditions specified therein, then the
person desiring to sell Shares (the "Selling Shareholder") shall give written
notice (the "Offer Notice") to the Company of the desire to sell such Shares
under the terms and conditions of the Bona Fide Offer and shall first offer to
sell such Shares (the "Offered Shares") to the Company on the same terms and
conditions. The Offer Notice shall fully describe all of the terms and
conditions of the proposed sale, including the name and address of the
purchaser, the number of shares to be sold, the consideration to be received in
exchange therefor and any other related terms and conditions and shall include a
true copy of the Bona Fide Offer. In the event that the Bona Fide Offer
contemplates any consideration other than cash, then the Selling Shareholder
shall state in the Offer Notice his good faith belief as to the fair market
value of the consideration. The Company shall have thirty (30} days after
delivery of the Offer Notice to accept such offer and to thereby agree to
purchase all, but not
less than all, of the Offered Share upon the terms and conditions specified in
the Offer Notice; provided, however, that if the specified consideration is not
cash and the Company does not agree with the Selling Shareholder's good faith
determination of the fair market value of the consideration, then the Company
may require that the fair market value of such non-cash consideration (and the
resultant purchase price for the Offered Shares) be determined by a mutually
agreed upon investment banking firm.
(b) In the event the Selling Shareholder's offer made pursuant to Section
4(a) hereof is accepted by the Company, the purchase of the Offered Share shall
be closed as soon as practicable after the acceptance of such offer. At the
closing, the Selling Shareholder shall deliver to the Company share certificates
representing all of the Offered Shares, duly endorsed in blank for transfer, or
with duly executed blank stock powers attached and with signatures guaranteed by
a national bank in either case, and shall further deliver such other instruments
as may be necessary or desirable in the reasonable opinion of counsel for the
Company to effect the transfer of the Offered Shares to the Company. The Company
shall pay the purchase price for such shares in the manner and upon the terms
provided in the Offer Notice or, at the option of the Company, in cash.
(c) If the Company does not accept the offer of the Selling Shareholder
made pursuant to Section 4(a) hereof, the Selling Shareholder shall be free to
sell the Offered Shares; provided, however, that (i) the sale by the Selling
Shareholder pursuant to this Section 4(G} shall be made at the same price and on
other terms and conditions not materially different from the terms and
conditions specified in the Offer Notice, and (ii) such sale shall be
consummated within thirty (30) days after the expiration date of the time in
which the Company could have accepted the Selling Shareholder's offer or, if
longer, within ten (10) days after receipt of any required regulatory approvals.
After the expiration of such fifteen or ten day period, any of the Offered
Shares not sold by the Selling Shareholder shall again become subject to all of
the provisions of this Agreement as though the offer under Section 4(a) hereof
had not been made.
Section 5. Bona Fide Pledges Permitted. Any Harrison or Permitted
Transferee desiring to effect a bona fide pledge of any of his Shares to secure
an obligation of such Shareholder shall have the right to effect such pledge,
but only if prior to effecting such pledge such Shareholder delivers to the
Company the written agreement of the pledges (i) agreeing that such pledges
shall not sell any of such Shares upon exercise of his rights as pledges thereof
without complying with the provisions of Section 4 hereof in the same manner and
to the same extent as if such pledges were a Shareholder and a party to this
Agreement,
(ii) acknowledging that such Shares in such pledgee's hands are subject to the
options contained in Sections 4, 6 and 7 hereof and (iii) such pledgee's
agreement to comply with all other provisions hereof, together with such further
assurances with respect to the agreement of much pledges as counsel to the
Company shall reasonably request.
Section 6. Company Option Upon Unauthorized Transfer. In the event any
Shareholder, Permitted Transferee or pledgee Sells any of the Shares owned by
him or pledged to him otherwise than in strict accordance with the terms of
Section 3, 4 and 5 hereof, then, in addition to the right to any other remedies
hereunder, including an injunction against an unauthorized transfer, the Company
shall have the option to purchase such Shares from the transferee (or any
subsequent holder) to whom such Shares have been sold for an amount in cash
equal to eighty-five percent (85%) of the fair market value of the consideration
paid by such transferee for such Shares. The Company may exercise the purchase
option provided in this Section 6 by giving notice thereof to the transferee of
such Shares at any time within ninety (90) days after the Company receives
actual notice of such sale, and the purchase of such Shares from such transferee
shall be closed within fifteen (15) days after the delivery of such notice. At
such closing the Company shall pay the purchase price against delivery of
certificates representing the Shares so purchased, duly endorsed in blank for
transfer, or with duly executed blank stock powers attached, and with signature
guaranteed by a national bank in either case, and accompanied by such further
instruments as may be necessary or desirable in the opinion of counsel for the
Company to effect the transfer of such Shares. Acceptance by any purchaser,
assignee, transferee, donee, pledgee or other party of any of the Shares held by
any Shareholder, Permitted Transferee, pledgee or their unauthorized transferee
shall evidence conclusively the consent of such party to all of the terms and
provisions hereof.
Section 7. Harrisons Right to Cause the Purchase of Their Shares be the
Company.
(a) If at any time after the fifth anniversary of the date of this
Agreement and prior to the tenth anniversary thereof (the "Exercise Period"),
the Harrisons desire to cause the Company to purchase all or part of the
Adjusted Initial Shares then owned by them (including Shares held by any
Permitted Transferee or pledgee), they may give to the Company a notice in
writing (the "Put Notice") demanding that the Company purchase all of their
Adjusted Initial Shares (or the portion thereof specified in the Put Notice). If
the Harrisons elect to put less than all of their Adjusted Initial Shares
pursuant to any single Put Notice, the number of shares put to KO pursuant
thereto shall
not be less than 100,000 Shares (as such number of shares may be adjusted in the
manner contemplated in Section 2(c) hereinabove). During the Exercise Period,
the Harrisons may continue to deliver Put Notices until KO has acquired all of
the Adjusted Initial Shares owned by them; provided that no more than one (1)
Put Notice may be delivered within any twelve month period.
(b) (i) Upon exercise of the right granted in paragraph (a) above, the
purchase price for all of the 1,761,320 Initial Shares shall be Seventy-Five
Million Dollars ($75,000,000) (the "Initial Purchase Price") or $42.5817 per
Share (assuming no stock Split or other occurrence requiring an adjustment as
contemplated in Section 2(c) or distribution requiring an adjustment under
paragraph (iii) below).
(ii) If the Shares have been adjusted by virtue of an event
contemplated in Section 2(c), then the purchase price per share shall be
determined by dividing Seventy-Five Million Dollars by the number of
Initial Shares, as so adjusted.
(iii) The Initial Purchase Price, as otherwise adjusted, shall be
appropriately reduced if there has occurred any extraordinary cash or
property distribution other than normal quarterly dividends in light of
Consolidated's results of operations.
(iv) The total purchase price payment to the Harrisons for their
Initial Shares (as adjusted) and any Additional Shares included in the Put
Notice will be the purchase price per Share determined under paragraphs
(i), (ii), and (iii) above times the number of Put Shares.
(c) The closing of the purchase of the Put Shares pursuant to this Section
7 shall take place as promptly as practicable at a time and place specified by
the Company.
(d) At the closing, the Harrisons shall deliver the certificates evidencing
the Put Shares free and clear of any lien or encumbrance and such certificates
shall be duly endorsed in blank or accompanied by duly executed stock powers
with signatures guaranteed by a national bank in either case, and accompanied by
such further instruments as may be necessary or desirable in the reasonable
opinion of counsel for the Company to effect the transfer of such Put Shares.
Acceptance by any purchaser, assignee, transferee, donee, pledgee or other party
of any of the Shares held by any Shareholder, Permitted Transferee or pledgee
shall evidence conclusively the consent of such party to all the terms and
provisions hereof.
(e) The consideration for the Put Shares shall be immediately available
funds paid by wire transfer to a bank account or accounts designated by the
Harrisons.
(f) Each of the Harrisons and their Permitted Transferees and pledgees
hereby irrevocably appoints J. Frank Harrison, III and if J. Frank Harrison, III
is unable for any reason to act then J. Frank Harrison, as his true and lawful
agent and attorney-in-fact for the purpose of determining and with absolute
discretion to determine if a Put Notice should be given under this Section 7,
for the giving of such notice and with respect to all other matters related to
the transfer of Put Shares pursuant to such notice and the receipt of
consideration therefor; and the Company may rely absolutely on any action taken
by such attorney-in-fact in connection herewith as being the action of each of
the Harrisons and each Permitted Transferee and pledgee.
Section 8. Merger or Sale of Assets. In the event that any offer is made
which, if consummated, would result in a change in control of Consolidated, or
the sale of all or substantially all of the assets of Consolidated, and the
Harrisons or the Permitted Transferees, as shareholders, intend to vote their
Shares in favor of such transaction, then the Harrisons will immediately provide
the Company with the Offer Notice described in Section 4 and thereby offer their
Shares to the Company on the terms and conditions contemplated in Section 4. In
the event such transaction constitutes a sale of assets of Consolidated, the
price deemed offered for the Shares shall be the product of (i) the percentage
of the Harrisons' (or Permitted Transferees') ownership of the total number of
outstanding shares of Consolidated Common Stock and Class B Common Stock, and
(ii) the purchase price paid for such assets, net of any anticipated tax
liabilities and other out-of-pocket costs to be incurred by Consolidated as a
consequence of such transaction.
Section 9. Stock Legend. Simultaneously with the execution hereof, each
Shareholder shall present the certificates evidencing his Shares so that the
following legend may be placed thereon in conspicuous type:
"Any transfer (including a pledge) of the shares of stock represented
by this certificate is restricted by the terms of a Shareholder's Agreement
dated December ___, 1988 by and among The Coca-Cola Company and J. Frank
Harrison and certain of the other shareholders of Coca-Cola Bottling Co.
Consolidated, which includes terms and options binding on Transferees and
Pledgees, a copy of which is on file at the offices of Consolidated."
Section 10. Amendment of Voting Agreement and Irrevocable Proxy. The last
sentence of paragraph 7(d) of the Voting Agreement dated May 7, 1987 among the
Company and J. Frank Harrison and J. Frank Harrison, III is hereby amended to
provide that the Coca-Cola Bottling Co. Consolidated Irrevocable Proxy of even
date therewith will terminate at such time as (i) J. Frank Harrison or executors
or trustees under his will and/or J. Frank Harrison, III do not collectively own
all of the 712,796 shares of Class B Common Stock currently owned by J. Frank
Harrison, or (ii) the trust which are parties hereto collectively hold less than
50% of the shares of Class B Common Stock held by them, in the aggregate, as of
the date hereof.
Section 11. Remedies.
(a) The parties recognize and acknowledge that it is impossible to measure
in money the damages which would result to a party hereto by reason of a failure
of any of the parties to perform any of the obligations imposed upon them under
this Agreement. Therefore, if any party hereto should institute an action or
proceeding to enforce the provisions hereof, any person against whom such action
or proceeding is brought hereby waives the claim or defense that such party has
an adequate remedy at law, and such person shall not urge in any action or
proceeding the claim or defense that such a remedy at law exists.
(b) This Agreement constitutes a separate agreement independently supported
by good and adequate consideration, the receipt and sufficiency of which are
hereby acknowledged, and this Agreement shall be interpreted, construed, and
enforced separate and apart from other agreements between or among the parties
hereto. Any claim or cause of action of any party hereto against any other party
hereto arising under any other agreement between or among the parties hereto or
out of any state of facts shall not constitute a defense to the enforcement of
the covenants, options and agreements contained in this Agreement.
Section 12. Assignment by Company. The Company shall have the right at any
time and from time to time to assign to any subsidiary of the Company any or all
rights, options or other benefits to which it is entitled hereunder, but it
shall remain responsible for the performance of its obligation hereunder.
Section 13. Term of Agreement. The term of this agreement shall be ten (10)
years, unless sooner terminated upon the purchase by the Company of all of the
Shares owned by the Harrisons, their Permitted Transferees and pledgees.
Section 14. Notice and Miscellaneous.
(a) Any notice, offer, acceptance of any offer, or other communication
provided for or required by this Agreement shall be in writing and shall be
deemed to have been given when delivered by hand, or when deposited in the
United States Mail, registered mail, return receipt requested, postage prepaid,
properly addressed to the person to whom such notice or other communication is
intended to be given, at the following address:
if to J. Frank Harrison or
J. Frank Harrison, III
J. Frank Harrison
c/o Coca-Cola Bottling Co. Consolidated
1900 Rexford Road
Charlotte, North Carolina 28211
J. Frank Harrison, III
c/o Coca-Cola Bottling Co. Consolidated
1900 Rexford Road
Charlotte, North Carolina 28211
with a copy to:
John W. Murrey, III, Esg.
Witt, Gaither & Whitaker
1100 American National Bank Bldg.
Chattanooga, Tennessee 37402-2608
if to The Coca-Cola Company
The Coca-Cola Company
One Coca-Cola Plaza, N.W.
Atlanta, Georgia 30313
Attention: Chief Financial Officer
with a copy to:
The Coca-Cola Company
One Coca-Cola Plaza, N.W.
Atlanta, Georgia 30313
Attention: General Counsel
or at such other address for a party as shall have been specified by
like notice.
(b) The invalidity or unenforceability of any particular provision of this
Agreement shall not affect the other provisions hereof, and this Agreement shall
be construed in all respects as if such invalid or unenforceable provisions were
omitted.
(c) No change or modification of this Agreement shall be valid or binding
upon the parties hereto unless such change or modification shall be in writing
and signed by all of the parties hereto.
(d) This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, personal representatives,
transferees, successors and assigns.
(e) For the convenience of the parties hereto, any maker of counterparts
hereof may be executed, and each ouch counterpart shall be deemed to be an
original instrument.
(f) This Agreement shall be interpreted, construed, and enforced in
accordance with the laws of the State of Delaware. Titles of the sections herein
have been inserted as a matter of convenience of reference only and shall not
affect the meaning or construction of any of the terms or provisions hereof.
(g) This Agreement is intended by the parties hereto to be the final
expression of their agreement and is the complete and exclusive statement of the
terms hereof notwithstanding any representations or statements to the contrary
heretofore made.
IN WITNESS WHEREOF, the parties hereto have executed and sealed this
Agreement, effective as of the date first above written.
THE COCA-COLA COMPANY
By: /s/ David L. Kennedy
--------------------
[SEAL]
ATTEST:
/s/ Carol C. Hayes
- ---------------------
Witness as to Shareholders:
each Shareholder:
/s/ Dottie Heard /s/ J. Frank Harrison
- --------------------- ----------------------------- (SEAL)
J. Frank Harrison
/s/ Sheila C. Beasley /s/ J. Frank Harrison, III
- --------------------- ----------------------------- (SEAL)
J. Frank Harrison, III
/s/ Sheila C. Beasley /s/ J. Frank Harrison, III
- --------------------- ----------------------------- (SEAL)
J. Frank Harrison, III
/s/ Dottie Heard /s/ Reid M. Henson
- --------------------- ----------------------------- (SEAL)
Reid M. Henson, Trustees U/A
Anne L. Carter dated 12/22/66
F/b/o J. Frank Harrison III
/s/ Sheila C. Beasley /s/ J. Frank Harrison, III
- --------------------- ----------------------------- (SEAL)
J. Frank Harrison, III
/s/ Dottie Heard /s/ Reid M. Henson
- --------------------- ----------------------------- (SEAL)
Reid M. Henson, Trustees U/A
Anne L. Carter dated 12/22/66
F/b/o J. Frank Harrison III
/s/ Sheila C. Beasley /s/ J. Frank Harrison, III
- --------------------- ----------------------------- (SEAL)
J. Frank Harrison, III
/s/ Dottie Heard /s/ Reid M. Henson
- --------------------- ----------------------------- (SEAL)
Reid M. Henson, Trustees U/A
Anne L. Carter dated 12/22/66
F/b/o J. Frank Harrison III
/s/ Sheila C. Beasley /s/ J. Frank Harrison, III
- --------------------- ----------------------------- (SEAL)
J. Frank Harrison, III
/s/ Dottie Heard /s/ Reid M. Henson
- --------------------- ----------------------------- (SEAL)
Reid M. Henson, Trustees U/A
Anne L. Carter dated 12/22/66
F/b/o J. Frank Harrison III
SCHEDULE A
Number of Number of Shares
Shares of Common of Class B Common
Shareholder Stock Owned Stock Owned
- ----------- ---------------- -----------------
J. Frank Harrison 712,796 712,796
---------------- -----------------
J. Frank Harrison, III (none included in Initial Shares)
J. Frank Harrison, III 33,314
and Reid M. Henson, ---------------- -----------------
Trustees U/A Anne L.
Carter dated 12/29/66
f/b/o J. Frank Harrison,
III
J. Frank Harrison, III 33,314
and Reid M. Henson, ---------------- -----------------
Trustees U/A Anne L.
Carter dated 12/29/66
f/b/o Deborah Harrison
J. Frank Harrison, III 235,786
and Reid M. Henson, ---------------- -----------------
Trustees U/A Anne L.
Carter dated 2/2/67
f/b/o J. Frank Harrison
J. Frank Harrison, III 33,314
and Reid M. Henson, ---------------- -----------------
Trustees U/A J. Frank
Harrison f/b/o Harrison
Family dated 10/13/88
VOTING AGREEMENT
THIS VOTING AGREEMENT effective this 27th day of January, 1989 (the
"Agreement"), by and among The Coca-Cola Company, a Delaware corporation (the
"Company"), J. Frank Harrison, III and J. Frank Harrison (the latter two persons
being hereinafter referred to as the "Harrisons") and Reid M. Benson in his
capacity as co-trustee of three trusts for the benefit of certain relatives of
the Harrisons (the "Co-Trustee").
WHEREAS, the Harrisons, the Co-Trustee and the Company have the power to
vote in the aggregate 3,404,018 issued and outstanding shares of the Common
Stock, $1.00 par value ("Common Stock"), and 1,553,728 issued and outstanding
shares of the Class B Common Stock, $1.00 par value ("Class B Common Stock") of
Coca-Cola Bottling Co. Consolidated, a Delaware corporation ("Consolidated"), as
set forth in Exhibit A; and
WHEREAS, the Harrisons, the Co-Trustee and the Company desire to enter into
this Voting Agreement in the manner set forth hereinbelow and desire that this
Agreement be specifically enforceable against each of them and that their
respective shares of Common Stock and Class B Common Stock (together
"Consolidated Stock") be voted in the manner and for the purposes specified
herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the Harrisons, the Co-Trustee and the Company hereby agree as follows:
1. Voting Agreement.
(a) The Harrisons and the Co-Trustee hereby agree to vote all of the
Consolidated Stock as to which they now or hereafter have voting power (subject
to any applicable fiduciary duties) in favor of and in order to:
(i) Nominate and elect as a director of Consolidated one person designated
in writing by the Company and reasonably acceptable to the Harrisons. The
person initially so designated shall be seated on the Board of Directors of
Consolidated as soon as practicable after the date of this Agreement and
shall thereafter be retained as a director subject to the provisions of
Paragraph 7(e) hereof.
(ii) Continue to vote for the person so designated and elected as a
director in accordance with this Agreement and Paragraph 9 of the Stock
Rights and Restrictions Agreement dated as of January 27, 1989, between the
Company and Consolidated (the "Stock Rights and Restrictions Agreement")
or any successor director designated in accordance with subparagraph
(a)(iii) of this Paragraph 1 during the term of this Agreement.
(iii) In the event any director so designated and elected cannot or will
not serve as a director or ceases serving as a director of Consolidated for
any reason whatsoever, the Harrisons agree to vote for the person
designated in writing by the Company and reasonably acceptable to them to
serve as a successor director, and this provision shall be effective as to
any replacement designee for any such successor.
(b) The Company agrees that while this Agreement is in effect and
thereafter it will support the control of Consolidated by the Harrison family
and cooperate in good faith with the Harrisons with respect thereto, provided in
each case that J. Frank Harrison, III and/or J. Frank Harrison are/is actively
involved in the management of Consolidated.
2. Irrevocable Proxy. In order to ensure the voting of the shares of
Consolidated Stock beneficially owned by the Company in accordance with this
Agreement, the Company agrees to execute an irrevocable proxy simultaneously
with the execution hereof in the form of Exhibit B attached hereto, granting to
J. Frank Harrison, III, during his lifetime and, thereafter, to J. Frank
Harrison, the right to vote, or to execute and deliver shareholder written
consents, in respect of all Common Stock and Class B Common Stock now or
hereafter owned and any other shares of Consolidated Stock which the Company has
the right to vote. It is understood and agreed that such irrevocable proxy
relates not only to voting for the election of directors of Consolidated in
accordance with this Agreement but also to voting on any matter as to which
holders of Common Stock or Class B Common Stock are entitled to vote; provided,
however, that the Harrisons will not be entitled to vote such shares with
respect to any merger, consolidation, sale of substantially all of its assets,
any other corporate reorganization or other similar corporate transaction
involving Consolidated, as a result of which the Harrisons would not exercise
voting control of the resulting entity or the Company would not have an equity
interest in the resulting entity.
3. Changes in Common Stock or Class B Common Stock. In the event that
subsequent to the date of this Agreement any shares or other securities (other
than any shares or securities of another corporation issued to Consolidated
shareholders pursuant to a plan of merger) are issued on, or in exchange for,
any of the shares of the Common Stock or Class B Common Stock held by the
Company by reason of any stock dividend, stock split, consolidation of shares,
reclassification, merger or consolidation involving Consolidated, such shares or
securities
shall be deemed to be Consolidated Stock for purposes of this Agreement, and the
irrevocable proxy will be effective as to any such shares.
4. Class B Common Stock. In the event that (i) there would no longer be a
viable market for the Common Stock due to the existence of disproportionate
voting rights in the Class B Common Stock, as a result of which the Harrisons
have surrendered all such shares of Class B Common Stock to Consolidated or no
longer are able to vote their shares of Class B Common Stock disproportionately
or (ii) any rule, regulation or condition requires elimination of Class B Common
Stock, J. Frank Harrison, III and in the event of his death, J. Frank Harrison,
shall have the option to purchase the Company's shares of Class B Common Stock
on the next anniversary of the date of this Agreement, for $38.50 per share plus
an amount sufficient to give the Company a 25% compounded annual rate of return
from May 7, 1987 after taking into account dividends and other distributions
previously received thereon. Such option must be exercised within three months
of the occurrence of the event that creates the circumstances referred to in the
first sentence hereof and would be assignable to Consolidated by either of the
Harrisons and to J. Frank Harrison by J. Frank Harrison, III.
5. Representations of the Harrisons and the Company. The Company and each
of the Harrisons hereby represent and warrant to each other that (a) it or he
owns and/or has the right to vote the number of shares of the Common Stock and
Class B Common Stock as set forth opposite such shareholder's name on Exhibit A
attached hereto, (b) such shareholder has full power to enter into this
Agreement and has not, prior to the date of this Agreement, executed or
delivered any proxy or entered into any other voting agreement or similar
arrangement other than one which has expired or terminated prior to the date
hereof, and (c) such shareholder will not take any action inconsistent with the
purposes and provisions of this Agreement.
6. Good Faith Consideration of Transfer of Consolidated Stock. Subject to
Paragraph 4 of the Stock Rights and Restrictions Agreement, the Company agrees
that at any time or from time to time during the term of this Agreement it will
consider in good faith any proposal that the Harrisons, or either of them, make
for the purchase of shares of Consolidated Stock held by the Company, but it is
understood that this provision is not intended to create any legally binding
option or right to purchase such shares but as an acknowledgement of good faith
consideration in the future.
7. General Provisions. (a) All of the covenants and agreements contained in
this Agreement shall be binding upon, and enure to the benefit of, the
respective parties and their successors, assigns, heirs, executors,
administrators and other legal representatives, as the case may be, provided
that this Agreement shall not apply to any Affected Shares, as defined in
Paragraph 4 of the Stock Rights and Restrictions Agreement, as to which shares
the offer to sell was not accepted by Consolidated and which were thereafter
sold without being again subject to said Paragraph 4.
(b) This Agreement, and the rights of the parties hereto, shall be governed
by and construed in accordance with the laws of the State of Delaware.
(c) This Agreement may be executed in one or more counterparts, each of
which will be deemed an original but all of which together shall constitute one
and the same instrument.
(d) This Agreement and the irrevocable proxy shall terminate (i) upon the
written agreement of the parties, or (ii) at such time as the Company is not the
beneficial owner of any shares of Consolidated Stock.
(e) The Company's right to have a designee on the Board of Directors of
Consolidated shall terminate (but all other provisions of this Agreement shall
remain in effect) at such time as the Company is not the owner of shares by
which the Company possesses at least 15% of the total voting power of all
classes of common stock of Consolidated.
(f) The irrevocable proxy shall terminate (but all other provisions of this
Agreement shall remain in effect) at such time as (i) J. Frank Harrison or
executors or trustees under his will and/or J. Frank Harrison, III do not
collectively own all of the 712,796 shared Of Class B Common Stock currently
owned by J. Frank Harrison, or (ii) the trusts which are parties to that certain
Shareholder's Agreement, dated as of December 13, 1988 among the Company, the
Harrisons and such trusts, hold less than fifty percent (50%) of the shares of
Class B Common Stock held by them, in the aggregate, as of the date hereof.
(g) An appropriate legend will be imprinted on the certificates of Common
Stock and Class B Common Stock subject to this Agreement and the irrevocable
proxy with respect to the existence of this Agreement and the irrevocable proxy.
(h) If any provision of this Agreement shall be declared void or
unenforceable by any court or administrative board of
competent jurisdiction, such provision shall be deemed to have been severed from
the remainder of this Agreement and this Agreement shall continue in all
respects to be valid and enforceable.
(i) No waiver of any right or remedy hereunder or any breach of any
covenant, condition, agreement, representation or warranty of this Agreement
extended by any party hereto shall be construed as a waiver of any rights or
remedies of any other party hereto or with respect to any subsequent breach.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
THE COCA-COLA COMPANY
By: /s/ David L. Kennedy
-----------------------------
Its: Authorized Representative
/s/ J. Frank Harrison, III
---------------------------------
J. Frank Harrison, III
/s/ J. Frank Harrison
---------------------------------
J. Frank Harrison
/s/ Reid M. Henson
---------------------------------
Reid M. Henson, Co-Trustee
EXHIBIT A
---------
Name Shares of Shares of Class B
- ---- Common Stock Common Stock
------------ ------------------
J. Frank Harrison 948,582(1)(3) 948,582(2)(3)(4)
J. Frank Harrison, III 403(3)(5) 335,988(6)
Reid M. Henson, Co-Trustee -0- 99,942(7)
The Coca-Cola Company 2,455,033 269,158
1. Of the 948,582 shares of Common Stock beneficially owned, 712,796 are owned
outright and 235,786 are held in a trust for the benefit of one of Mr.
Harrison's relatives as to which Mr. Harrison has the sole right to vote
such shares.
2. Of the 948,582 shares of Class B Common Stock beneficially owned, 712,796
are owned outright and 235,786 are held in a trust for the benefit of Mr.
Harrison, as to which Mr. Harrison has the sole right to vote such shares.
3. No shares of Common Stock or Class B Common Stock owned by the Company are
included in the total beneficial ownership of Mr. Harrison or Mr. Harrison,
III.
4. All shares of Class B Common Stock are convertible on a share for share
basis into shares of Common Stock.
5. All 403 shares of Common Stock are held by Mr. Harrison, III as custodian
for his minor children.
6. Of the 335,988 shares of Class B Common Stock beneficially owned by Mr.
Harrison, III, 99,942 shares are held in 3 trusts for the benefit of
certain relatives of Mr. Harrison, III as to which he is a co-trustee and
shares the power to vote and to dispose of.
7. Mr. Henson has beneficial ownership of 99,942 shares of Class B Common
Stock by virtue of his serving as Co-Trustee of 3 trusts for the benefit of
certain relatives of the Harrisons. Such trusts hold, in the aggregate,
99,942 shares of Class B Common as to which Mr. Henson, as Co-Trustee,
shares the power to vote and to dispose of.
EXHIBIT B
COCA-COLA BOTTLING CO. CONSOLIDATED
IRREVOCABLE PROXY
The undersigned agrees to grant, and hereby grants to J. Frank Harrison,
III, during his lifetime and, thereafter, to J. Frank Harrison, an irrevocable
proxy pursuant to the provisions of Section 212 of the Delaware General
Corporation Law to vote, or to execute and deliver written consents or otherwise
exercise voting rights in any respect or fashion with respect to, all shares of
Common Stock, $1.00 par value, and Class B Common Stock, $1.00 par value, of
Coca-Cola Bottling Co. Consolidated ("Consolidated"), now owned or hereafter
acquired by the undersigned as fully, to the same extent and with the same
effect as the undersigned might or could do under any applicable laws or
regulations governing the rights and powers of stockholders of a Delaware
corporation, in connection with the election of directors of Consolidated and
all other matters as to which such shares of Common Stock or Class B Common
Stock are entitled to vote, except with respect to any merger, consolidation,
sale of substantially all of its assets, any other corporate reorganization or
other similar corporate transaction involving Consolidated (as a result of which
the Harrisons would not exercise voting control of, or the Company would not
have an equity interest in, the resulting entity), at any stockholders' meeting
or otherwise as may be permitted under applicable law and the Certificate of
Incorporation and By-Laws of Consolidated, as provided in the Voting Agreement,
dated January 27, 1989, among the undersigned and J. Frank Harrison, III and J.
Frank Harrison. The undersigned hereby affirms that this proxy is given as a
condition of said Voting Agreement and as such is coupled with an interest and
is irrevocable. It is further understood by the undersigned that this proxy may
be exercised by J. Frank Harrison, III or J. Frank Harrison, for the period
beginning on the date hereof and ending at the time when the undersigned has no
right to vote or direct the vote any shares of Common Stock and Class B Common
Stock, unless sooner terminated in accordance with provisions of said Voting
Agreement.
THIS PROXY SHALL REMAIN IN FULL FORCE AND EFFECT AND BE ENFORCEABLE AGAINST
ANY DONEE, TRANSFEREE OR ASSIGNEE OF THE SHARES OF COMMON STOCK AND CLASS B
COMMON STOCK TO WHICH IT RELATES, EXCEPT FOR SHARES TRANSFERRED PURSUANT TO
PARAGRAPH 4 OF THE STOCK RIGHTS AND RESTRICTIONS AGREEMENT DATED AS OF JANUARY
27, 1989 BETWEEN CONSOLIDATED AND THE UNDERSIGNED.
Dated this 27 day of January, 1989.
THE COCA-COLA COMPANY
By: /s/ David L. Kennedy
------------------------------
Its: Authorized Representative
AGREEMENT REGARDING JOINT FILING
OF STATEMENT ON SCHEDULE 13D
The undersigned hereby understand and agree that the Statement on Schedule 13D
to which this Agreement is attached, relating to shares of Common Stock, $1.00
par value per share, of Coca-Cola Bottling Co. Consolidated, is filed on behalf
of the undersigned, and each of them, and that this Agreement may be attached as
an exhibit to such Statement.
Dated: December 1, 1998
JFH Family Limited Partnership - SW1
By: J. Frank Harrison Family, LLC,
its General Partner
/s/ J. Frank Harrison, Jr. /s/ J. Frank Harrison, Jr.
- ------------------------------ ------------------------------------
J. Frank Harrison, Jr. By: J. Frank Harrison, Jr.
Title: Chief Manager
/s/ J. Frank Harrison, III JFH Family Limited Partnership - DC1
- ------------------------ By: J. Frank Harrison Family, LLC,
J. Frank Harrison, III its General Partner
/s/ J. Frank Harrison, Jr.
--------------------------
/s/ Reid M. Henson By: J. Frank Harrison, Jr.
- ------------------------------ Title: Chief Manager
Reid M. Henson
J. Frank Harrison Family, LLC
/s/ J. Frank Harrison, Jr.
- ------------------------------
By: J. Frank Harrison, Jr.
Title: Chief Manager
JFH Family Limited Partnership - FH1
By: J. Frank Harrison Family, LLC,
its General Partner
/s/ J. Frank Harrison, Jr.
- ------------------------------
By: J. Frank Harrison, Jr.
Title: Chief Manager
AGREEMENT
THIS AGREEMENT (this "Agreement"), dated November 23, 1998, is entered into
among THE COCA-COLA COMPANY, a Delaware corporation ("KO"), CAROLINA COCA-COLA
BOTTLING INVESTMENTS, INC., A Delaware corporation and an indirect wholly-owned
subsidiary of KO ("CCCBI"), J. FRANK HARRISON, individually, J. FRANK HARRISON,
III, individually and as co-trustee, (the "Harrisons") and REID M. HENSON, as
co-trustee only ("Henson").
BACKGROUND
KO, the Harrisons and Henson are parties to that certain Voting Agreement
effective as of January 27, 1989 (the "Voting Agreement"); KO, the Harrisons and
Henson are parties to that certain Shareholder's Agreement effective as of
December 17, 1988 (the "Shareholder's Agreement"); and KO and Coca-Cola Bottling
Co. Consolidated, a Delaware corporation ("Consolidated"), are parties to that
certain Stock Rights And Restrictions Agreement effective as of January 27, 1989
(the "SR&R Agreement") (collectively the "Stock Agreements").
CCCBI, as transferee of certain shares of Consolidated Stock (defined
below) and certain other assets and rights of KO, has agreed to be a party to
the Agreement.
J. Frank Harrison intends to create several family limited partnerships
(the "Harrison Partnerships") for the purpose of holding and owning shares of
Consolidated Common Stock and Class B Common Stock ("Consolidated Stock") and he
desires to transfer his Consolidated Stock to the Harrison Partnerships in
return for limited partnership interests therein. In addition, he intends to
form one or more Tennessee limited liability companies and/or corporations (the
"Harrison Companies") for the purpose of serving as general partners of the
various Harrison Partnerships and capitalize the Harrison Companies with a
portion of his shares of Consolidated Stock which will be subsequently
transferred to the Harrison Partnerships in return for the general partnership
interests in each of the Harrison Partnerships. Furthermore, the Harrisons and
Henson will cause various trusts for the benefit of J. Frank Harrison and/or his
issue to transfer shares of Consolidated Stock to the various Harrison
Partnerships in return for limited partnership interests therein.
Following the transfers described above, all of the limited partnership
interests in the Harrison Partnerships and all of the membership interests in
any limited liability companies and/or shares of stock in any corporations
serving as general partners of the Harrison Partnerships will be held and owned
by persons and/or trusts who are Permitted Transferees under the Shareholder's
Agreement.
The parties hereto have agreed to execute this document in order to confirm
their agreement that the Consolidated Stock transfers contemplated hereinabove
will be considered transfers to Permitted Transferees under the Stock Agreements
and to further clarify the relative rights and obligations of the Harrison
Partnerships, Harrison Companies and the parties hereto under the Stock
Agreements.
Accordingly, the parties hereto agree as follows:
Section 1. Permitted Transferees. Section 2(g) of the Shareholder's
Agreement is hereby amended to read as follows:
"Permitted Transferee" of any Shareholder shall mean such Shareholder's
spouse, lineal descendants, adopted children, any spouse of any such lineal
descendant or adopted child, any trust created and existing solely for the
benefit of any such person and any organization described in Section 501(c)(3)
of the Internal Revenue Code, if such organization is exempt from tax under
Section 501(a) of such Code, any executor of such Shareholder's estate, or any
beneficiary of any trust which is a Shareholder, any family limited
partnerships, limited liability companies and/or corporations owned and
controlled exclusively by persons or entities otherwise qualifying as a
Permitted Transferee; provided that no person or organization shall be a
Permitted Transferee unless he, she or it consents in writing to be bound by the
obligations imposed upon the Harrisons hereunder and the voting obligations of
the Harrisons and the Co-Trustees under Section 1(a) of the Voting Agreement.
Section 2. Irrevocable Proxy. Section 7(f) of the Voting Agreement is
hereby amended to read as follows:
(f) The irrevocable proxy shall terminate (but all other provisions of this
Agreement shall remain in effect) at such time as (i) J. Frank Harrison, the
executors and/or trustees under his will, J. Frank Harrison, III, and/or any
family limited partnerships, limited liability companies and/or corporations
owned and controlled directly or indirectly by such persons do not collectively
own all of the 712,796 shares of Class B Common Stock currently owned by J.
Frank Harrison, or (ii) the trusts which are parties to that certain
Shareholder's Agreement dated as of December 13, 1988 among the Company, the
Harrisons and such trusts, together with any family limited partnerships,
limited liability companies and/or corporations owned directly or indirectly by
the trusts and/or beneficiaries of such trusts, hold less than fifty percent
(50%) of the shares of Class B Common Stock held by them, in the aggregate, as
of the date of original execution of this Agreement (January 27, 1989).
Section 3. Call Option Continuation. KO and CCCBI hereby agree that (i) the
transfers of Consolidated Stock described hereinabove shall not be considered an
event described in the last subparagraph of Paragraph 6 of the SR&R Agreement
which results in the Harrisons no longer exercising voting control over
Consolidated; therefore, such transfers of Consolidated Stock to the Harrison
Partnerships and/or the Harrison Companies described above will not affect
Consolidated's call option under Paragraph 6 of the SR&R Agreement, subject to
the continuing qualification of the Harrison Partnerships and/or the Harrison
Companies as Permitted Transferees as defined in Section 1 hereof; (ii) the
Harrison Partnerships and the Harrison Companies shall be deemed by KO and CCCBI
to be included within the definition of the term "Harrisons" therein; and (iii)
Consolidated shall be considered an intended third party beneficiary of this
Section 3.
Section 4. Miscellaneous
(a) This Agreement and the rights of the parties hereto shall be governed
by and construed in accordance with the laws of the State of Delaware.
(b) This Agreement may be executed in one or more counterparts, each of
which will be deemed an original but all of which together shall constitute one
and the same instrument.
(c) All share certificates transferred to the Harrison Partnerships or
Harrison Companies in accordance with this Agreement shall bear a legend
acknowledging that the shares of Consolidated Stock are subject to the rights,
duties, obligations and requirements of the Stock Agreements, as amended.
(d) This Agreement shall be construed with and as a part of the Stock
Agreements.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
THE COCA-COLA COMPANY J. FRANK HARRISON
By /s/ Lawrence R. Cowart /s/ J. Frank Harrison
---------------------- ---------------------------
Name: Lawrence R. Cowart
Title: Vice President
CAROLINA COCA-COLA BOTTLING J. FRANK HARRISON, III,
INVESTMENTS, INC. INDIVIDUALLY AND AS TRUSTEE
By: /s/ Lawrence R. Cowart /s/ J. Frank Harrison, III
---------------------- ---------------------------
Name: Lawrence R. Cowart
Title: President
REID M. HENSON, TRUSTEE
/s/ Reid M. Henson
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