AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 12, 1994
REGISTRATION NO. 33-54657
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
COCA-COLA BOTTLING CO. CONSOLIDATED
(Exact name of Registrant as specified in its charter)
DELAWARE 56-0950585
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1900 REXFORD ROAD
CHARLOTTE, NORTH CAROLINA 28211
(704) 551-4400
(Address and telephone number of
Registrant's principal executive offices)
DAVID V. SINGER
VICE PRESIDENT
AND CHIEF FINANCIAL OFFICER
COCA-COLA BOTTLING CO. CONSOLIDATED
1900 REXFORD ROAD
CHARLOTTE, NORTH CAROLINA 28211
(704) 551-4400
(Name, address and telephone number of agent for service)
WITH COPIES TO:
RALPH M. KILLEBREW, JR., ESQ. JOHN W. WHITE, ESQ.
WITT, GAITHER & WHITAKER CRAVATH, SWAINE & MOORE
1100 AMERICAN NATIONAL BANK BUILDING WORLDWIDE PLAZA, 825 EIGHTH AVENUE
CHATTANOOGA, TENNESSEE 37402 NEW YORK, NEW YORK 10019
(615) 265-8881 (212) 474-1000
THIS REGISTRATION STATEMENT SHALL HEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933, OR ON SUCH DATE AS THE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
SUBJECT TO COMPLETION DATED OCTOBER 12, 1994
PROSPECTUS
COCA-COLA BOTTLING CO.
CONSOLIDATED
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
CLASS C COMMON STOCK
Coca-Cola Bottling Co. Consolidated (the "COMPANY"), a Delaware
corporation, may offer and sell from time to time, together or separately (i)
its debt securities ("DEBT SECURITIES"); (ii) shares of one or more classes of
its preferred stock ("PREFERRED STOCK"); (iii) shares of its Common Stock, $1.00
par value per share ("COMMON STOCK"); and (iv) shares of its Class C Common
Stock, $1.00 par value per share ("CLASS C COMMON STOCK") (collectively, the
"SECURITIES"), all having an aggregate initial public offering price not to
exceed $400,000,000, at prices and on terms to be determined at the time of
sale.
The specific terms of the particular Securities in respect of which this
Prospectus is being delivered (the "OFFERED SECURITIES") will be set forth in an
accompanying supplement to this Prospectus (the "PROSPECTUS SUPPLEMENT"),
including, where applicable, the initial public offering price thereof, the net
proceeds to the Company, the listing on any securities exchange, other specific
terms of the Offered Securities, and: (i) in the case of Debt Securities, the
specific designation, aggregate principal amount, original issue discount (if
any), authorized denominations, maturity, premium (if any), the rate (which may
be fixed or variable), time and method of calculating payment of interest (if
any), the place or places where principal of, premium (if any) and interest (if
any) thereon will be payable and the dates for payment thereof, any terms for
redemption (either mandatory or at the option of the Company or the holder) or
early repayment, any sinking fund provisions and any terms for conversion or
exchange into other securities of the Company and (ii) in the case of Preferred
Stock, the designation, number of shares, liquidation preference per share,
initial public offering price, dividend rate (or method of calculation thereof),
dates on which dividends shall be payable and dates from which dividends shall
accrue, any redemption or sinking fund provisions and the terms (if any) for
conversion or exchange into other securities of the Company, and (iii) in the
case of Common Stock or Class C Common Stock, the number of shares and the terms
of the offering and sale thereof. If so specified in the applicable Prospectus
Supplement, Debt Securities may be issued in whole or in part in the form of one
or more temporary or permanent global securities.
The Securities may be publicly offered through underwriting syndicates
represented by one or more managing underwriters, or through one or more such
firms acting alone, or through dealers. The Company may enter into an agreement
with respect to the Securities then being offered providing for the sale of such
Securities to, and for the purchase and public offering thereof by, the several
members of such syndicate or such firm or firms (the "UNDERWRITERS"). The
Securities may also be sold directly or through agents to investors. See "PLAN
OF DISTRIBUTION". The Prospectus Supplement will set forth the names of any
underwriters, dealers or agents involved in the sale of the Securities in
respect of which this Prospectus is being delivered, any applicable fee,
commission or discount arrangements with them and the resulting net proceeds to
the Company.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF OFFERED SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS OCTOBER , 1994.
NO DEALER, SALESMAN, OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR THE PROSPECTUS SUPPLEMENT
DELIVERED HEREWITH AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY
UNDERWRITER, DEALER, OR AGENT. THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT DO
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES BY ANYONE IN ANY JURISDICTION IN WHICH THE OFFER OR SOLICITATION IS
NOT AUTHORIZED OR IN WHICH THE PERSON MAKING THE OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "COMMISSION"). Such reports, proxy statements and other
information filed by the Company can be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549 and at its Regional Offices located at 7
World Trade Center, Thirteenth Floor, New York, New York 10048 and at
Northwestern Atrium Center, 500 W. Madison Street, Chicago, Illinois 60661.
Copies of such material can be obtained at prescribed rates from the Public
Reference Section of the Commission at its principal office at Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549.
The Company has filed with the Commission a registration statement on Form
S-3 (together with all amendments and exhibits thereto, the "REGISTRATION
STATEMENT") under the Securities Act of 1933, as amended (the "SECURITIES ACT"),
with respect to the Offered Securities. This Prospectus does not contain all of
the information set forth in the Registration Statement, certain parts of which
are omitted in accordance with the rules and regulations of the Commission.
Statements contained in this Prospectus as to the contents of any document
referred to are not necessarily complete, and in each instance, reference is
made to the copy of such document filed as an exhibit to the Registration
Statement or otherwise filed with the Commission. Each such statement is
qualified in all respects by such reference. For further information pertaining
to the Company and the Securities, reference is made to the Registration
Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company with the
Commission (File No. 0-9286) are incorporated herein by reference and made a
part hereof: (i) the Company's Annual Report on Form 10-K for the fiscal year
ended January 2, 1994; (ii) the Company's Quarterly Reports on Form 10-Q for the
quarters ended April 3, 1994 and July 3, 1994; and (iii) the Company's Current
Report on Form 8-K dated May 18, 1994.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and prior to the termination of the offering of the Securities shall be deemed
to be incorporated by reference into this Prospectus and to be a part hereof
from the date of filing of such documents. Any statement contained herein or in
a document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein, in a Prospectus Supplement or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
THE COMPANY WILL FURNISH, WITHOUT CHARGE, UPON WRITTEN OR ORAL REQUEST, TO
EACH PERSON TO WHOM THIS PROSPECTUS IS DELIVERED, INCLUDING ANY BENEFICIAL
OWNER, A COPY OF ANY OR ALL OF THE DOCUMENTS THAT HAVE BEEN OR MAY BE
INCORPORATED HEREIN BY REFERENCE OTHER THAN EXHIBITS TO SUCH DOCUMENTS (UNLESS
SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE THEREIN). REQUESTS FOR
SUCH COPIES SHOULD BE DIRECTED TO DAVID V. SINGER, VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER, COCA-COLA BOTTLING CO. CONSOLIDATED, 1900 REXFORD ROAD,
CHARLOTTE, NORTH CAROLINA 28211 (TELEPHONE 704-551-4400).
2
THE COMPANY
The Company is engaged in the production, marketing and distribution of
carbonated soft drinks, primarily products of The Coca-Cola Company, Atlanta,
Georgia ("THE COCA-COLA COMPANY"). The Company (including its subsidiaries and
its 50% owned affiliate) holds franchises to produce and market carbonated soft
drinks, primarily products of The Coca-Cola Company within certain territories
in the states of Alabama, Florida, Georgia, Kentucky, Mississippi, North
Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia and West
Virginia. The Company also produces and distributes certain other brands of soft
drinks within such territories. The Company considers selective acquisitions for
additional territories on an ongoing basis. To achieve its goals, further
purchases of franchise rights and entities possessing such rights and other
related transactions designed to facilitate such purchases may occur.
The Company is a Delaware corporation incorporated in 1980 as the successor
to a business originally formed in 1902. The Company's principal executive
offices are located at 1900 Rexford Road, Charlotte, North Carolina 28211, and
its telephone number is (704)551-4400.
USE OF PROCEEDS
Except as otherwise set forth in a Prospectus Supplement, the Company
intends to use the net proceeds from the sale of Securities for general
corporate purposes, including repayment of debt, future acquisitions, capital
expenditures and working capital. The Company is engaged in an ongoing program
of selective acquisitions for additional territories and regularly evaluates the
desirability of making such acquisitions. Except as may be specifically set
forth in a Prospectus Supplement, the Company has no understandings or
agreements with respect to any specific significant acquisition or investment.
RATIOS
The table below sets forth the ratios of earnings to fixed charges and the
ratios of earnings to combined fixed charges and preferred stock dividends of
the Company and its consolidated subsidiaries for the periods indicated. The
ratios have been computed using the amounts for the Company, its consolidated
subsidiaries and its proportionate share of losses incurred by its fifty percent
(50%) owned affiliate. Earnings available for fixed charges represent earnings
before income taxes, extraordinary items and fixed charges. Fixed charges
represent interest incurred plus that portion of rental expense deemed to be the
equivalent of interest. Preferred Stock dividends represent all such dividends
paid by the Company in respect of its Preferred Stock, increased to an amount
representing the pre-tax earnings which would be required to cover such dividend
requirements.
SIX MONTHS
ENDED FISCAL YEAR ENDED1
JULY 3, 1994 JULY 4, 1993 1993 19923 1991
Ratio of Earnings to Fixed Charges........................... 1.66x 1.66x 1.59x 1.11x 1.11x
Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividends.................................. 1.66x 1.66x 1.59x 0.91x 1.08x
19904 19892
Ratio of Earnings to Fixed Charges........................... 1.07x 0.91x
Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividends.................................. 0.94x 0.91x
1 The Company's fiscal year ends on the Sunday nearest December 31.
2 For the year ended December 31, 1989, earnings, as defined, were inadequate to
cover (i) fixed charges and (ii) combined fixed charges and preferred stock
dividends. The coverage deficiency, in each case, was $2,474,000.
3 For the year ended January 3, 1993, earnings, as defined, were inadequate to
cover combined fixed charges and preferred stock dividends, as a result of the
Company's effective tax rate of 57% in 1992.
4 For the year ended December 30, 1990, earnings, as defined, were inadequate to
cover combined fixed charges and preferred stock dividends, as a result of the
Company's effective tax rate of 90% in 1990. Had the Company's effective rate
been 38%, consistent with the effective tax rate in 1993, the preferred stock
dividend factor for 1990 would have been $722,000 resulting in a ratio of
earnings to combined fixed charges and preferred stock dividends of 1.05 for
1990.
3
DESCRIPTION OF DEBT SECURITIES
The Debt Securities which the Company may offer under this Prospectus will
be issued under an Indenture dated as of July 20, 1994 (hereinafter referred to
as the "INDENTURE"), between the Company and NationsBank of Georgia, National
Association, as Trustee (the "TRUSTEE"). A copy of the Indenture has been filed
as an exhibit to the Registration Statement. The following summaries of certain
provisions of the Indenture do not purport to be complete and are subject to,
and are qualified in their entirety by reference to, all of the provisions of
the Indenture. Section references herein or in a Prospectus Supplement refer to
such Sections in the Indenture, which Sections are incorporated herein or
therein by reference. Terms used herein or in a Prospectus Supplement that are
not otherwise defined herein or therein shall have the meanings given in the
Indenture, which definitions are incorporated herein or therein by reference.
The Debt Securities may be issued from time to time in one or more series.
The particular terms of each series of Debt Securities offered pursuant to any
Prospectus Supplement or Prospectus Supplements will be described in such
Prospectus Supplement or Prospectus Supplements relating to such series.
GENERAL
The Indenture does not limit the aggregate amount of Debt Securities that
may be issued thereunder, and Debt Securities may be issued thereunder from time
to time in separate series, up to the aggregate amount from time to time
authorized by the Company for each series. The Debt Securities will be unsecured
obligations of the Company and will rank equally and ratably with other
unsecured and unsubordinated indebtedness of the Company.
The applicable Prospectus Supplement or Prospectus Supplements will
describe the following terms of the series of Debt Securities ("OFFERED DEBT
SECURITIES") in respect of which this Prospectus is being delivered: (1) the
title of the Offered Debt Securities; (2) any limit on the aggregate principal
amount of the Offered Debt Securities; (3) whether the Offered Debt Securities
will be issued in whole or in part in global form and, if so, the name of the
Depositary; (4) the price or prices (expressed as a percentage of the aggregate
principal amount thereof) at which the Offered Debt Securities will be issued;
(5) the date or dates on which the principal of the Offered Debt Securities is
payable; (6) the rate or rates at which the Offered Debt Securities will bear
interest, if any, and the date or dates from which any such interest will
accrue; (7) the Interest Payment Dates on which any such interest on the Offered
Debt Securities will be payable and the Regular Record Date with respect
thereto; (8) the obligation, if any, of the Company to redeem or repay the
Offered Debt Securities pursuant to any sinking fund or analogous provisions or
at the option of a holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which the Offered
Debt Securities shall be redeemed or repurchased, in whole or in part, pursuant
to such obligations; (9) each office or agency where, subject to the terms of
the Indenture as described below under "Payment and Paying Agents", the
principal of and any premium and interest on the Offered Debt Securities will be
payable and each office or agency where, subject to the terms of the Indenture
as described under "Denominations; Registration of Transfers and Exchange", the
Offered Debt Securities may be presented for registration of transfer or
exchange; (10) the period or periods within which, the price or prices at which
and the terms and conditions upon which the Offered Debt Securities may be
redeemed, in whole or in part, at the option of the Company, or repaid at the
option of the Holder, prior to Stated Maturity (in which case the Company
intends to comply with the requirements of Section 14(e) and Rule 14e-1 under
the Exchange Act in connection therewith, if applicable) and, if so, the
provisions related to such redemption or repayment including, in the case of an
Original Issue Discount Security, the information necessary to determine the
amount due upon redemption or repayment; (11) the denominations in which any
Offered Debt Securities will be issuable, if other than denominations of $1,000
and any integral multiple thereof; (12) if other than the principal amount
thereof, the portion of the principal amount of Offered Debt Securities that
shall be payable upon declaration of acceleration of the maturity thereof; (13)
the application, if any, of either or both of the sections of the Indenture
relating to defeasance to the Offered Debt Securities; (14) any other terms of
the Offered Debt Securities not inconsistent with the provisions of the
Indenture.
Debt Securities may be issued as Original Issue Discount Securities to be
sold at a substantial discount from their principal amount. Special federal
income tax considerations applicable to Debt Securities issued at an original
issue discount, including Original Issue Discount Securities, will be described
in the Prospectus Supplement relating thereto.
DENOMINATIONS; REGISTRATION OF TRANSFERS AND EXCHANGE
Debt Securities of a given series will be issued only in fully registered
form without coupons in denominations of $1,000 and integral multiples thereof,
unless otherwise specified in the related Prospectus Supplement. (SECTION 302)
4
Debt Securities may be presented for registration of transfer or for
exchange (duly endorsed or accompanied by a written instrument of transfer duly
executed), at the office of the Security Registrar or at the office of any
transfer agent designated by the Company for such purpose with respect to any
series of Debt Securities and referred to in an applicable Prospectus
Supplement, without service charge and upon payment of any taxes and other
governmental charges as described in the Indenture. The Company has initially
appointed the Trustee as Security Registrar. (SECTION 305) If a Prospectus
Supplement refers to any transfer agents (in addition to the Security Registrar)
initially designated by the Company with respect to any series of Debt
Securities, the Company may at any time rescind the designation of any such
transfer agent or approve a change in the location through which any such
transfer agent acts, except that the Company will be required to maintain a
transfer agent in each place where principal and any premium and interest in
respect of any such series are payable. The Company may at any time designate
additional transfer agents with respect to any series of Debt Securities.
(SECTION 1002)
In the event of any redemption of Debt Securities of any series, the
Company will not be required to (i) issue, register the transfer of or exchange
Debt Securities of such series during a period beginning at the opening of
business 15 days before the mailing of a notice of redemption with respect to
Debt Securities of the series to be redeemed and ending at the close of business
on the day of such mailing, or (ii) register the transfer of or exchange any
Debt Security, or portion thereof, called for redemption, except the unredeemed
portion of any Debt Security being redeemed in part. (SECTION 305)
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and any premium and interest on Debt Securities will be made at
the office of such Paying Agent or Paying Agents as the Company may designate
from time to time, except that at the option of the Company payment of any
interest may be made by check mailed to the address of the Person entitled
thereto as such address appears in the Security Register. Unless otherwise
indicated in an applicable Prospectus Supplement, payment of any interest due on
Debt Securities on any interest payment date will be made to the Person in whose
name such Debt Security is registered at the close of business on the Regular
Record Date for such interest. (SECTION 307)
Unless otherwise indicated in an applicable Prospectus Supplement, the
principal office of the Paying Agent will be designated as the Company's Paying
Agent for payments with respect to Debt Securities. Any other Paying Agents
initially designated by the Company for the Debt Securities will be named in an
applicable Prospectus Supplement. The Company may at any time designate
additional Paying Agents or rescind the designation of any Paying Agent or
approve a change in the office through which any Paying Agent acts, except that
the Company will be required to maintain a Paying Agent in each place where
principal and any premium or interest in respect of such series of Debt
Securities are payable. (SECTION 1002)
All moneys paid by the Company to the Trustee or a Paying Agent for the
payment of principal of and any premium or interest on any Debt Security which
remain unclaimed for two years after such principal, premium or interest has
become due and payable may be paid to the Company and thereafter the holder of
such Debt Security, as a general unsecured creditor, may look only to the
Company for payment thereof. (SECTION 1003)
GLOBAL SECURITIES
The Debt Securities of a series may be issued in the form of one or more
fully registered securities in global form (a "GLOBAL SECURITY") that will be
deposited with, or on behalf of, a depositary (the "DEPOSITARY") identified in
the Prospectus Supplement relating to such series. In such case, one or more
Global Securities will be issued in a denomination or aggregate denominations in
an amount equal to the aggregate principal amount of all outstanding Debt
Securities of the series represented by such Global Security or Securities.
Unless and until it is exchanged in whole or in part for Debt Securities in
definitive registered form, a Global Security may not be transferred except as a
whole by the Depositary for such Global Security to the nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor of such Depositary or a nominee of such successor Depository. (SECTION
305)
The specific terms of the depositary arrangement with respect to a series
of Debt Securities will be described in the Prospectus Supplement relating to
such series. The Company anticipates that the following provisions will apply to
all depositary arrangements.
Upon the issuance of a Global Security, and the deposit of such Global
Security with or on behalf of the Depositary for such Global Security, the
Depositary will credit, on its book-entry registration and transfer system, the
respective principal
5
amounts of the individual Debt Securities represented by such Global Security to
the accounts of institutions that have accounts with such Depositary or its
nominee ("PARTICIPANTS"). Such accounts will be designated by the underwriters
or agents for such Debt Securities or by the Company, if such Debt Securities
are offered and sold directly by the Company. Ownership of beneficial interests
in such Global Security will be limited to participants or Persons that may hold
interests through participants. Ownership of beneficial interests by
participants in such Global Security will be shown on, and the transfer of the
ownership interest will be effected only through, records maintained by the
Depositary or its nominee for such Global Security. Ownership of beneficial
interests in such Global Security by Persons that hold through participants will
be shown on, and the transfer of that ownership interest will be effected only
through, records maintained by such participant. The laws of some states require
that certain purchasers of securities take physical delivery of such securities
in definitive form. Such limits and such laws may impair the ability to transfer
beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner or Holder of such Global Security, such Depositary or such
nominee, as the case may be, will be considered the sole owner or Holder of the
individual Debt Securities represented by such Global Security for all purposes
under the Indenture. Except as set forth below, owners of beneficial interests
in a Global Security will not be entitled to have any of the individual Debt
Securities of the series represented by such Global Security registered in their
names, will not receive or be entitled to receive physical delivery of Debt
Securities of such series in definitive form and will not be considered the
Holders thereof for any purposes under the Indenture. Accordingly, each Person
owning a beneficial interest in such Global Security must rely on the procedures
of the Depositary and, if such Person is not a participant, on the procedures of
the participant through which such Person owns its interest, to exercise any
rights of a Holder under the Indenture. The Indenture provides that the
Depositary may grant proxies and otherwise authorize participants to give or
take any request, demand, authorization, direction, notice, consent, waiver or
other action which a Holder is entitled to give or take under the Indenture.
(SECTION 104) The Company understands that under existing industry practices, if
the Company requests any action of Holders or if an owner of a beneficial
interest in such Global Security desires to give any notice or take any action
that a Holder is entitled to give or take under the Indenture, the Depositary
would authorize the participants to give such notice or take such action, and
participants would authorize beneficial owners owning through such participants
to give such notice or take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
Principal, premium, if any, and interest payments on individual Debt
Securities represented by a Global Security of a Depositary or its nominee will
be made to the Depositary or its nominee, as the case may be, as the registered
owner of a Global Security representing such Global Security. None of the
Company, the Trustee or any Paying Agent for such Debt Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in the Global
Security or Securities for such Debt Securities or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
(SECTION 308)
The Company expects that the Depositary for a series of Debt Securities or
its nominee, upon receipt of any payment of principal, premium or interest with
respect to a definitive Global Security representing any of such Debt
Securities, will credit immediately participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of such Global Security as shown on the records of the Depositary or its
nominee. The Company also expects that payments by participants to owners of
beneficial interests in such Global Security held through such participants will
be governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or registered
in "street name", and will be the responsibility of such participants.
If the Depositary for a series of Debt Securities is at any time unwilling
or unable to continue as Depositary and a successor Depositary is not appointed
by the Company within 90 days, the Company will issue individual Debt Securities
of such series in definitive form in exchange for the Global Security or
Securities representing such series of Debt Securities. In addition, the Company
may at any time and in its sole discretion, subject to any limitations described
in the Prospectus Supplement relating to such Debt Securities, determine not to
have the Debt Securities of a series represented by one or more Global
Securities and, in such event, will issue individual Debt Securities of such
series in definitive form in exchange for the Global Security or Securities
representing such series of Debt Securities. (SECTION 305)
Further, if the Company so specifies with respect to the Debt Securities of
a series, an owner of a beneficial interest in a Global Security representing
Debt Securities of such series may, on terms acceptable to the Company and the
Depositary for such Global Security, receive Debt Securities of such series in
definitive form. In any such instance, an owner of a beneficial interest in a
Global Security will be entitled to have Debt Securities of the series
represented by such Global Security equal in principal amount to such beneficial
interest registered in its name and will be entitled to physical delivery of
such Debt Securities in definitive form. Debt Securities of such series so
issued in definitive form will, except as set forth in the
6
applicable Prospectus Supplement, be issued in denominations of $1,000 and
integral multiples thereof and will be issued in registered form only without
coupons. (SECTION 305)
CERTAIN COVENANTS OF THE COMPANY
CERTAIN DEFINITIONS APPLICABLE TO COVENANTS (SECTION 101):
The term "Subsidiary" of the Company is defined as a corporation more than
50% of the voting stock of which is owned, directly or indirectly, by the
Company and/or one or more Subsidiaries of the Company.
The term "Restricted Subsidiary" is defined as a Subsidiary of the Company
which (1) owned a Principal Property as of the date of the Indenture, or (2)
acquired or acquires a Principal Property after such date from the Company or a
Restricted Subsidiary other than for cash equal to such property's fair market
value as determined by the Board of Directors of the Company, or (3) acquired or
acquires a Principal Property after such date by purchase with funds
substantially all of which are provided by the Company or a Restricted
Subsidiary or with the proceeds of indebtedness for money borrowed, which
indebtedness is guaranteed in whole or in part by the Company or a Restricted
Subsidiary, or (4) is a party to any contract with respect to the bottling,
canning, packaging or distribution of soft drinks or soft drink products, other
than any such contract which in the opinion of the Board of Directors of the
Company is not of material importance to the total business conducted by the
Company and its Subsidiaries as an entirety.
"Principal Property" is defined to mean any bottling, distribution or other
facility, together with the land upon which it is erected and fixtures
comprising a part thereof, owned or leased by the Company or any Subsidiary, the
gross book value of which (without deduction of any depreciation reserves) on
the date as of which the determination is being made exceeds 3% of Consolidated
Net Tangible Assets, other than any such facility which in the opinion of the
Board of Directors of the Company is not of material importance to the total
business conducted by the Company and its Subsidiaries as an entirety.
"Attributable Debt" is defined to mean the total net amount of rent
required to be paid during the remaining term of certain leases, discounted at
the rate per annum equal to the weighted average interest rate borne by the Debt
Securities.
"Consolidated Net Tangible Assets" is defined to mean the aggregate amount
of assets (less applicable reserves and other properly deductible items) after
deducting (1) all current liabilities, and (2) goodwill and like intangibles of
the Company and its consolidated subsidiaries.
RESTRICTIONS ON DEBT
The Company (1) will not itself, and will not permit any Restricted
Subsidiary, to incur or guarantee any evidence of any indebtedness for money
borrowed ("DEBT") secured by a mortgage, pledge or lien ("MORTGAGE") on any
Principal Property of the Company or any Restricted Subsidiary, or on any share
of capital stock or Debt of any Restricted Subsidiary, without securing or
causing such Restricted Subsidiary to secure the Debt Securities equally and
ratably with (or, at the Company's option, prior to) such secured Debt, and (2)
will not permit any Restricted Subsidiary to incur or guaranty any unsecured
Debt or to issue any preferred stock, in each instance unless the aggregate
amount of (A) all such Debt, (B) the aggregate preferential amount to which such
preferred stock would be entitled on any involuntary distribution of assets and
(C) all Attributable Debt of the Company and its Restricted Subsidiaries with
respect to sale and leaseback transactions involving Principal Properties (with
the exception of such transactions which are excluded as described in
"Restrictions on Sales and Leasebacks" below), would not exceed 10% of
Consolidated Net Tangible Assets.
The above restriction does not apply to, and there will be excluded from
Debt in any computation under such restriction, (1) Debt secured by Mortgages on
property of, or on any shares of capital stock or Debt of, any corporation, and
unsecured Debt of any corporation, existing at the time such corporation becomes
a Restricted Subsidiary, (2) Debt secured by Mortgages in favor of the Company
or a Restricted Subsidiary and unsecured Debt payable to the Company or a
Restricted Subsidiary, (3) Debt secured by Mortgages in favor of governmental
bodies to secure progress or advance payments, (4) Debt secured by Mortgages on
property, shares of capital stock or Debt existing at the time of acquisition
thereof (including acquisition through merger or consolidation) or incurred
within certain time limits to finance the acquisition thereof or construction
thereon, (5) unsecured Debt incurred within certain time limits to finance the
acquisition of property, shares of capital stock or Debt (other than shares of
capital stock or Debt of the Company) or to finance construction on such
property, (6) Debt secured by Mortgages securing industrial revenue bonds or (7)
any extension, renewal or replacement of any Debt referred to in the foregoing
clauses (1) through (6) inclusive. In addition, the above restriction does not
apply to any issuance of preferred stock by a Restricted Subsidiary to the
Company or another Restricted Subsidiary, provided that such preferred stock
shall not thereafter be transferrable to any person other than the Company or a
Restricted Subsidiary. (SECTION 1006)
7
RESTRICTIONS ON SALES AND LEASEBACKS
Neither the Company nor any Restricted Subsidiary may enter into any sale
and leaseback transaction involving any Principal Property, unless, after giving
effect thereto, the aggregate amount of all Attributable Debt of the Company and
its Restricted Subsidiaries with respect to all such transactions plus all Debt
to which SECTION 1006 is applicable (as described in "Restrictions on Debt"
above) would not exceed 10% of Consolidated Net Tangible Assets.
This restriction does not apply to, and there shall be excluded in any
computation of Attributable Debt under such restriction, Attributable Debt with
respect to any sale and leaseback transaction if (1) the lease is for a period
of not in excess of three years, including renewal rights, (2) the sale or
transfer of the Principal Property is made within a specified period after the
later of its acquisition or construction, (3) the lease secures or relates to
industrial revenue or pollution control bonds, (4) the transaction is between
the Company and a Restricted Subsidiary or between Restricted Subsidiaries or
(5) the Company or a Restricted Subsidiary, within 180 days after the sale or
transfer is completed, applies to the retirement of Funded Debt of the Company
or a Restricted Subsidiary ranking on a parity with or senior to the Debt
Securities, or to the purchase of other property which will constitute Principal
Property of a value at least equal to the value of the Principal Property leased
in such sale and leaseback transaction, an amount not less than the greater of
(i) the net proceeds of the sale of the Principal Property so leased, or (ii)
the fair market value of the Principal Property leased. In lieu of applying the
proceeds of such sale to the retirement of Funded Debt, the Company may receive
credit for (1) the principal amount of any Debt Securities (or other notes or
debentures constituting Funded Debt of the Company or a Restricted Subsidiary)
delivered within such 180-day period to the applicable trustee for retirement
and cancellation, and (b) the principal amount of any other Funded Debt
voluntarily retired within such 180-day period. (SECTION 1007)
EVENTS OF DEFAULT AND REMEDIES
The Indenture defines an "Event of Default" whenever used therein with
respect to Debt Securities of any series as one or more of the following events:
(1) default in the payment of interest, if any, on Debt Securities of such
series for 30 days after becoming due; (2) default in the payment of principal
of (or premium, if any, on) Debt Securities of such series when due; (3) default
in the deposit of any sinking fund when and as due by the terms of Offered Debt
Securities; (4) default in the performance of any other covenant for 90 days
after notice; (5) certain events of bankruptcy, insolvency or reorganization;
(6) a default under or the acceleration of the maturity date of any bond,
debenture, note or other evidence of indebtedness of the Company or any
Restricted Subsidiary (other than the Debt Securities of such series) or a
default under any indenture or other instrument under which any such evidence of
indebtedness has been issued or by which it is governed and the expiration of
any applicable grace period specified in such evidence of indebtedness,
indenture or other instrument, if the aggregate amount of indebtedness with
respect to which such default or acceleration has occurred exceeds $1.0 million;
and (7) any other Event of Default provided with respect to Debt Securities of
such series. If any Event of Default described above shall occur and be
continuing, then either the Trustee or the Holders of at least 25% in principal
amount of the outstanding Debt Securities of that series may declare the
principal amount (or, if any of the Offered Debt Securities are Original Issue
Discount Securities, such portion of the principal amount of such Debt
Securities as may be specified by the terms thereof) of all of the Offered Debt
Securities to be due and payable immediately. (SECTIONS 501 AND 502)
The Indenture provides that the Trustee, within 90 days after the
occurrence of a default with respect to any series of Debt Securities, shall
give to the Holders of Debt Securities of that series notice of all uncured
defaults known to it (the term default to mean any events specified above which
is, or after notice or lapse of time or both would become, an Event of Default
with respect to the Offered Debt Securities); provided that, except in the case
of default in the payment of the principal of (or premium, if any) or interest
on any Debt Securities or in the payment of any sinking fund installment with
respect to the Offered Debt Securities, the Trustee shall be protected in
withholding such notice if it in good faith determines that the withholding of
such notice is in the interest of the Holders of Debt Securities. (SECTION 602)
The Company is required to furnish to the Trustee annually a certificate by
certain officers of the Company stating whether or not to the best of their
knowledge the Company is in default in the fulfillment of its covenants under
the Indenture and, if there has been a default in the fulfillment of any such
covenant, specifying the nature and status of each such default. (SECTION 1005)
The Holders of a majority in principal amount of the outstanding Offered
Debt Securities (voting as one class) will have the right, subject to certain
limitations, to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee with respect to the Offered Debt Securities, and to
waive certain defaults. (SECTIONS 512 AND 513)
8
The Indenture provides that in case an Event of Default shall occur and be
continuing, the Trustee shall exercise such of its rights and powers under the
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs. (SECTION 601)
Subject to such provisions, the Trustee will be under no obligation to
exercise any of its rights or powers under the Indenture at the request or
direction of any of the Holders of Debt Securities unless they shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction. (SECTION 603)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company shall not consolidate with or merge into, or transfer all or
substantially all of its assets to, any person unless (i) that person (including
the successor corporation) is a corporation organized under the laws of the
United States of America or any State or the District of Columbia; (ii) that
person (including the successor corporation) assumes by supplemental Indenture
all of the Company's obligations on Debt Securities outstanding at that time;
and (iii) after giving effect thereto, no Event of Default, and no event which,
after notice or lapse of time, would become an Event of Default shall have
occurred and be continuing. The Indenture further provides that no such
consolidation or merger of the Company with or into any other corporation and no
conveyance or transfer of all or substantially all of its property to any person
may be made if, as a result thereof, any Principal Property of the Company or
any Restricted Subsidiary would become subject to a Mortgage which is not
expressly excluded from the restrictions or permitted by the provisions of
SECTION 1006 (see "Restrictions on Debt") unless the Debt Securities are secured
equally and ratably with (or, at the Company's option, prior to) the Debt
secured by such Mortgage by a lien upon such Principal Property. (SECTION 801)
DEFEASANCE
The Prospectus Supplement will state whether any defeasance provision will
apply to any Offered Debt Securities which are the subject thereof.
The Indenture provides, if such provision is made applicable to the Debt
Securities of any series pursuant to SECTION 301 of the Indenture, that the
Company may elect either (A) to defease and be discharged from any and all
obligations with respect to such Debt Securities (except for the obligation to
register the transfer or exchange of such Debt Securities, to replace temporary
or mutilated, destroyed, lost or stolen Debt Securities, to maintain an office
or agency in respect of the Debt Securities and to hold moneys for payment in
trust) ("DEFEASANCE") or (B) to be released from its obligations with respect to
such Debt Securities under SECTIONS 501(5), 1006 and 1007 of the Indenture
(being the cross-default provisions described in clause (6) under "EVENTS OF
DEFAULT AND REMEDIES" and the restrictions described under "Restrictions on
Debt" and "Restrictions on Sales and Leasebacks", respectively) ("COVENANT
DEFEASANCE"), upon the deposit with the Trustee (or other qualifying trustee),
in trust for such purpose, of money and/or U.S. Government Obligations which
through the payment of principal and interest in accordance with their terms
will provide money in an amount sufficient to pay the principal of (and premium,
if any) and interest, if any, on such Debt Securities, and any mandatory sinking
fund or analogous payments thereon, on the scheduled due dates therefor. In the
case of defeasance, the Holders of such Debt Securities are entitled to receive
payments in respect of such Debt Securities solely from such trust. Such a trust
may only be established if, among other things, the Company has delivered to the
Trustee an opinion of counsel (as specified in the Indenture) to the effect that
the Holders of such Debt Securities will not recognize income, gain or loss for
federal income tax purposes as a result of such defeasance or covenant
defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such defeasance
or covenant defeasance had not occurred. Such opinion, in the case of defeasance
under clause (A) above, must refer to and be based upon a ruling of the Internal
Revenue Service or a change in applicable federal income tax law occurring after
the date of the Indenture. The Prospectus Supplement may further describe the
provisions, if any, permitting such defeasance or covenant defeasance with
respect to the Debt Securities of a particular series. (ARTICLE THIRTEEN)
MODIFICATION
Modifications and amendments of the Indenture may be made by the Company
and the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the outstanding Debt Securities issued under the
Indenture which are affected by the modification or amendment (which Holders, in
the case of a Global Security, shall be the Depositary appointed therefor),
provided that no such modification or amendment may, without the consent of each
Holder of such Debt Security affected thereby: (1) change the Stated Maturity of
the principal of, or any installment of principal of or interest, if any, on,
any such Debt Security; (2) reduce the principal amount of (or premium, if any)
or the interest, if any, on
9
any such Debt Security or the principal amount due upon acceleration of an
Original Issue Discount Security; (3) change the place or currency of payment of
principal (or premium, if any) or interest, if any, on any such Debt Security;
(4) impair the right to institute suit for the enforcement of any such payment
on or with respect to any such Debt Security; (5) reduce the above-stated
percentage of Holders of Debt Securities necessary to modify or amend the
Indenture; or (6) modify the foregoing requirements or reduce the percentage of
outstanding Debt Securities necessary to waive compliance with certain
provisions of the Indenture or for waiver of certain defaults. (SECTION 902)
THE TRUSTEE
NationsBank of Georgia, National Association, is the Trustee under the
Indenture. The Company may maintain deposit accounts and conduct other banking
transactions with the Trustee in the normal course of the Company's business.
DESCRIPTION OF PREFERRED STOCK
Under the Company's Restated Certificate of Incorporation (the "CERTIFICATE
OF INCORPORATION"), the Company's Board of Directors (without any further vote
or action by the Company's stockholders) is authorized to provide for the
issuance, in one or more series, of up to (i) 50,000 shares of Convertible
Preferred Stock having a par value of $100.00 per share; (ii) 50,000 shares of
Non-Convertible Preferred Stock having a par value of $100.00 per share; and
(iii) 20,000,000 shares of Preferred Stock having a par value of $0.01 per share
(collectively, the "PREFERRED STOCK"). The Board of Directors is authorized to
fix the number of shares, the relative powers, preferences and rights, and the
qualifications, limitations or restrictions applicable to each series thereof by
resolution authorizing the issuance of such series. As of the date of this
Prospectus, there were no shares of Preferred Stock issued and outstanding.
The description below sets forth certain general terms and provisions of
each of the three classes of the Company's Preferred Stock to which a Prospectus
Supplement may relate. The specific terms of any series of Preferred Stock in
respect of which this Prospectus is being delivered (the "OFFERED PREFERRED
STOCK") will be described in the Prospectus Supplement relating to such Offered
Preferred Stock. The following summaries of certain provisions governing the
Company's preferred stock do not purport to be complete and are subject to, and
are qualified in their entirety by reference to, the Certificate of
Incorporation and the certificate of designations relating to each particular
series of Offered Preferred Stock which will be filed with the Commission (and
incorporated by reference in the Registration Statement) in connection with such
Offered Preferred Stock.
If so indicated in the applicable Prospectus Supplement, the terms of any
series of Offered Preferred Stock may differ from the terms set forth below,
except those terms required by the Certificate of Incorporation.
GENERAL
The Offered Preferred Stock, when issued in accordance with the terms of
the Certificate of Incorporation and of the applicable certificate of
designations and as described in the applicable Prospectus Supplement, will be
fully paid and non-assessable.
To the extent not fixed in the Certificate of Incorporation, the relative
rights, preferences, powers, qualifications, limitations or restrictions of the
Offered Preferred Stock of any series will be as fixed by the Board of Directors
pursuant to a certificate of designations relating to such series. The
Prospectus Supplement relating to the Offered Preferred Stock of each such
series shall specify the terms thereof, including:
(1) The class, series title or designation and stated value (if any)
for such Offered Preferred Stock;
(2) The maximum number of shares of Offered Preferred Stock in such
series, the liquidation preference per share and the offering price per
share for such Offered Preferred Stock;
(3) The dividend preferences and the dividend rate(s), period(s)
and/or payment date(s) or method(s) of calculation thereof applicable to
such Offered Preferred Stock;
(4) The date from which dividends on such Offered Preferred Stock will
accumulate, if applicable, and whether dividends will be cumulative;
(5) The provisions for a retirement or sinking fund, if any, with
respect to such Offered Preferred Stock;
(6) The provisions for redemption, if applicable, of such Offered
Preferred Stock;
10
(7) The voting rights, if any, of shares of such Offered Preferred
Stock;
(8) Any listing of such Offered Preferred Stock for trading on any
securities exchange or any authorization of such Offered Preferred Stock
for quotation in an interdealer quotation system of a registered national
securities association;
(9) The terms and conditions, if applicable, upon which such Offered
Preferred Stock will be convertible into, or exchangeable for, any other
securities of the Company, including the title of any such securities and
the conversion or exchange price therefor;
(10) A discussion of federal income tax considerations applicable to
such Offered Preferred Stock; and
(11) Any other specific terms, preferences, rights, limitations or
restrictions of such Offered Preferred Stock.
Subject to the terms of the Certificate of Incorporation and to any
limitations contained in the certificate of designations pertaining to any
then-outstanding series of Preferred Stock, the Company may issue additional
series of Preferred Stock at any time or from time to time, with such powers,
preferences and relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof, as the Board of Directors
shall determine, all without further action of the stockholders, including the
holders of any then-outstanding series of any class of Preferred Stock of the
Company.
DIVIDENDS
Holders of any series of Offered Preferred Stock will be entitled to
receive cash dividends when, as and if declared by the Board of Directors of the
Company out of funds of the Company legally available therefor, at such rate and
on such dates as will be set forth in the applicable Prospectus Supplement. Each
dividend will be payable to holders of record as they appear on the stock books
of the Company on the record date fixed by the Board of Directors. Dividends, if
cumulative, will be cumulative from and after the date set forth in the
applicable Prospectus Supplement.
LIQUIDATION RIGHTS
The Company's Certificate of Incorporation provides that, in the event of a
liquidation or dissolution of the Company, or a winding up of its affairs,
whether voluntary or involuntary, or in the event of a merger or consolidation
of the Company, no distributions will be made to holders of any class of the
Company's common stock until after payment or provision for payment of the debts
or liabilities of the Company and any amounts to which holders of shares of any
class of the Company's preferred stock shall be entitled. The applicable
Prospectus Supplement will specify the amount and type of distributions to which
the holders of any series of Offered Preferred Stock would be entitled upon the
occurrence of any such event.
REDEMPTION
If so provided in the applicable Prospectus Supplement, the Offered
Preferred Stock will be redeemable in whole or in part at the option of the
Company, at the times, at the redemption prices and in accordance with any
additional terms and conditions set forth therein.
VOTING RIGHTS
Except as indicated in the applicable Prospectus Supplement, or except as
expressly required by applicable law, the holders of any series of Offered
Preferred Stock will not be entitled to vote.
CONVERSION
The terms and conditions, if any, on which shares of the Offered Preferred
Stock are convertible into any other class of the Company's securities will be
set forth in the Prospectus Supplement relating thereto. Such terms will include
the designation of the security into which such shares are convertible, the
conversion price, the conversion period, provisions as to whether conversion
will be at the option of the holder or the Company, the events requiring an
adjustment of the conversion price and provisions affecting conversion in the
event of the redemption of the Offered Preferred Stock. In the case of
conversion of the Offered Preferred Stock into Common Stock or into any other
security of the Company for which there exists an established public trading
market at the time of such conversion, such terms may include provisions under
which the amount of such security to be received by the holders of the Offered
Preferred Stock would be calculated according to the market price of such
security as of a time stated in the Prospectus Supplement.
11
DESCRIPTION OF COMMON STOCK
AND CLASS C COMMON STOCK
GENERAL
The Company may issue, separately or together with or upon the conversion
of or in exchange for other Securities, Common Stock and/or Class C Common
Stock, all as set forth in the accompanying Prospectus Supplement relating to
any Common Stock or Preferred Stock in respect of which this Prospectus is being
delivered. The following summaries do not purport to be complete and are subject
to, and are qualified in their entirety by reference to, the following
documents: (i) the Certificate of Incorporation; (ii) the Company's By-Laws, as
amended to date (the "BY-LAWS"); and (iii) the certificate of designations filed
by the Company with respect to shares of any series of Preferred Stock which may
be issued subsequent to the date of this Prospectus (and as described in any
applicable Prospectus Supplement). Copies of each of the Restated Certificate of
Incorporation of the Company and the Bylaws of the Company, as amended, are
filed as exhibits to the Registration Statement.
In addition to the three classes of Preferred Stock described above, the
authorized capital stock of the Company consists of (i) 30,000,000 shares of
Common Stock having a par value of $1.00 per share; (ii) 10,000,000 shares of
Class B Common Stock having a par value of $1.00 per share; and (iii) 20,000,000
shares of Class C Common Stock having a par value of $1.00 per share. As of July
18, 1994, the Company had issued and outstanding: (i) 7,958,059 shares of Common
Stock; (ii) options to purchase an aggregate of 250,000 shares of Common Stock,
of which options to purchase an aggregate of 212,500 shares were currently
exercisable; and (iii) 1,336,362 shares of Class B Common Stock. There are no
outstanding shares of Class C Common Stock.
The outstanding shares of Common Stock and Class B Common Stock are, and
any shares of Common Stock or Class C Common Stock offered hereby will be, upon
issuance and payment therefor in accordance with the Certificate of
Incorporation and as described in the applicable Prospectus Supplement, fully
paid and non-assessable.
VOTING RIGHTS
The Certificate of Incorporation provides that holders of Common Stock,
Class B Common Stock and Class C Common Stock shall, except to the extent
provided by law, vote together as a single voting group on any matters brought
before the Company's shareholders. Holders of Common Stock are entitled to one
(1) vote per share on all such matters, while holders of Class B Common Stock
are entitled to twenty (20) votes per share on all such matters and holders of
Class C Common Stock are entitled to one-twentieth ( 1/20) vote per share on all
such matters. Neither Common Stock, Class B Common Stock nor Class C Common
Stock possess any cumulative voting rights under the Certificate of
Incorporation.
Under the Certificate of Incorporation, the Company may not change the
relative rights, preferences, privileges, restrictions, dividend rights, voting
powers or other powers of the Common Stock, Class B Common Stock or Class C
Common Stock without the affirmative vote of not less than two-thirds of all the
votes entitled to be voted by the holders of each class of stock adversely
affected thereby voting as a separate class; provided, however, that any
proposed amendment to the Certificate of Incorporation which would increase the
authorized number of shares of Common Stock, Class B Common Stock or Class C
Common Stock would be subject to approval by a majority of all the votes
entitled to be voted by holders of Common Stock, Class B Common Stock and Class
C Common Stock, voting together as a single class.
DIVIDENDS
GENERAL.
Subject to any prior rights of holders of any then-outstanding shares of
Preferred Stock, and to the provisions regarding relative dividend rights
discussed below, holders of all three classes of the Company's common stock are
entitled to receive dividends when, as and if declared by the Company's Board of
Directors out of funds legally available therefor. See also "DESCRIPTION OF
PREFERRED STOCK -- Dividends".
RELATIVE DIVIDEND RIGHTS.
Holders of Class B Common Stock are entitled to receive such dividends,
including stock dividends, if any, in such amounts and at such rates per share
as may be declared by the Company's Board of Directors out of funds legally
available therefor; provided, however, that any such dividends may not exceed
any such dividends declared and paid to holders of Common Stock. Holders of
Common Stock are entitled to receive such dividends, including stock dividends,
if any, in such amounts and at such rates as may be declared by the Board of
Directors out of funds legally available therefor, which may
12
exceed any such dividends declared and paid to holders of Class B Common Stock.
A dividend of shares may be declared and paid in Common Stock to holders of
Common Stock and in Class B Common Stock to holders of Class B Common Stock, if
the number of shares paid per share to holders of Common Stock and Class B
Common Stock are the same.
Any dividends declared and paid on Common Stock and Class C Common Stock
must be equal in amount or value and may exceed, but not be less than, any such
dividends declared and paid to holders of Class B Common Stock. Dividends of
shares of Common Stock may be paid to holders of Common Stock and Class C Common
Stock only or to holders of all classes of the Company's common stock if the
number of shares paid per share to such holders is the same. Similarly,
dividends of shares of Class B Common Stock may be paid to holders of Common
Stock and Class C Common Stock only or to holders of all classes of the
Company's common stock if the number of shares paid per share to such holders is
the same. Dividends of shares of Class C Common Stock may be paid to holders of
Common Stock and Class C Common Stock only or to holders of all classes of the
Company's common stock if the number of shares paid per share to such holders is
the same. Additionally, a dividend of Common Stock may be paid to holders of
Common Stock simultaneously with a dividend of Class B Common Stock to holders
of Class B Common Stock and a dividend of Class C Common Stock to holders of
Class C Common Stock, provided that the number of shares paid per share to
holders of each such class is the same.
If only shares of Class B Common Stock and Class C Common Stock are
outstanding, then a dividend of shares of Class C Common Stock, Class B Common
Stock or Common Stock may be declared and paid to holders of Class C Common
Stock only or to holders of Class B Common Stock and Class C Common Stock if the
number of shares paid per share to such holders is the same; provided that a
dividend of shares of Class B Common Stock may be paid to holders of Class B
Common Stock while holders of Class C Common Stock receive Common Stock or Class
C Common Stock if the number of shares paid to such holders is the same.
Additionally, if only shares of Class B Common Stock and Class C Common Stock
are outstanding, a dividend of shares of Common Stock or Class B Common Stock
may be declared and paid to holders of Class B Common Stock, provided that a
dividend of shares of Common Stock or Class C Common Stock is declared and paid
to holders of Class C Common Stock and the number of shares paid per share to
such holders is the same.
If only shares of Common Stock and Class C Common Stock are outstanding,
then a dividend of shares of Common Stock, Class B Common Stock, or Class C
Common Stock may be declared and paid to the holders of both Common Stock and
Class C Common Stock; provided that the number of shares paid per share to such
holders is the same. Additionally, if only shares of Common Stock and Class C
Common Stock are outstanding, a dividend of Common Stock may be paid to holders
of Common Stock and a dividend of Class C Common Stock paid to holders of Class
C Common Stock if the number of shares paid per share to such holders is the
same.
PREEMPTIVE RIGHTS
Except as may be otherwise stated in any applicable Prospectus Supplement,
holders of the Common Stock, Class B Common Stock and Class C Common Stock do
not have any preemptive or other rights to subscribe for additional shares of
any class of the Company's capital stock.
LIQUIDATION RIGHTS
The Certificate of Incorporation provides that, in the event of any
liquidation or dissolution of the Company, or a winding up of its affairs,
whether voluntary or involuntary, or in the event of a merger or consolidation
of the Company, no distributions will be made to holders of any class of the
Company's common stock until after payment or provision for payment of the debts
or liabilities of the Company and any amounts to which holders of shares of any
then-outstanding class of Preferred Stock shall be entitled. After making such
payments (or provisions therefor), holders of the Common Stock, Class B Common
Stock and Class C Common Stock would be entitled to share ratably (I.E., an
equal amount of assets for each share of such stock) in the distribution of the
remaining assets of the Company.
CONVERSION RIGHTS
Except as stated otherwise in any applicable Prospectus Supplement, shares
of Common Stock and Class C Common Stock do not possess any conversion rights.
Shares of Class B Common Stock are convertible, at the option of the holder
thereof and without the payment of any additional consideration to the Company,
into shares of Common Stock on a one share for one share basis. Shares of Class
B Common Stock are not convertible into shares of Class C Common Stock.
13
TRANSFERABILITY AND PUBLIC TRADING MARKET
Except as stated otherwise in any applicable Prospectus Supplement, there
are no restrictions on the transferability of shares of Common Stock, Class B
Common Stock or Class C Common Stock. The Common Stock currently trades on The
Nasdaq Stock Market (National Market) with the symbol "COKE". Neither the Class
B Common Stock nor the Class C Common Stock is currently listed for trading on
any securities exchange or authorized for quotation in an interdealer quotation
system of a registered national securities association.
OTHER FACTORS
PROVISION REGARDING REDEMPTION OR CALL OF CLASS C COMMON STOCK.
The Certificate of Incorporation specifically provides that shares of the
Class C Common Stock shall not be made subject to any redemption or call by the
Company.
STOCK SPLITS AND REVERSE STOCK SPLITS.
The Certificate of Incorporation provides that, except for dividends of the
Company's stock, which are governed by the provisions described above, shares of
Class B Common Stock outstanding at any time shall not be split up or
subdivided, whether by stock distribution, reclassification, recapitalization,
or otherwise, so as to increase the number of shares thereof issued and
outstanding, unless at the same time the shares of Common Stock are split up or
subdivided, whether by stock distribution, reclassification, recapitalization,
or otherwise, so that the number of shares thereof outstanding shall be
proportionately increased in order to maintain the same proportionate equity
ownership (I.E., the same proportion of shares held by each class) between the
holders of Common Stock and Class B Common Stock as existed on the record date
of any such transaction.
Except in the case of dividends of the Company's stock, the Certificate of
Incorporation also provides that, if shares of Common Stock and Class B Common
Stock outstanding at any time are split or subdivided, whether by stock
distribution, reclassification, recapitalization, or otherwise, so as to
increase the number of shares thereof issued and outstanding, then the shares of
Class C Common Stock shall be split or subdivided, whether by stock
distribution, reclassification, recapitalization, or otherwise, so that the
number of shares thereof outstanding shall be proportionately increased in order
to maintain the same proportionate equity ownership (I.E., the same proportion
of shares held by each class) among the holders of Common Stock, Class B Common
Stock, and Class C Common Stock as existed on the date prior to such split or
subdivision. Similarly, if shares of Class C Common Stock shall be split or
subdivided in any manner, then all other outstanding classes of the Company's
common stock shall be proportionately split or subdivided.
In the case of reverse splits, the Certificate of Incorporation provides
that shares of Common Stock outstanding at any time shall not be reverse split
or combined, whether by reclassification, recapitalization or otherwise, so as
to decrease the number of shares thereof issued and outstanding, unless at the
same time the shares of Class B Common Stock are reverse split or combined so
that the number of shares thereof outstanding shall be proportionately decreased
in order to maintain the same proportionate ownership between the holders of
Common Stock and Class B Common Stock as existed on the record date of any such
transaction.
The Certificate of Incorporation also provides that if shares of Common
Stock and Class B Common Stock outstanding at any time are reverse split or
combined, whether by reclassification, recapitalization, or otherwise, so as to
decrease the number of shares thereof issued and outstanding, then the shares of
all other classes of the Company's common stock shall be reverse split or
combined so that the number of shares thereof outstanding shall be
proportionately decreased in order to maintain the same proportionate ownership
(I.E., the same proportion of shares held by each class) between the holders of
Common Stock, Class B Common Stock and Class C Common Stock as existed on the
date prior to the reverse split or combination. Similarly, if shares of Class C
Common Stock are reverse split or combined in any manner, all other outstanding
classes of the Company's common stock shall be proportionately reverse split or
combined.
CLASSIFICATION OF BOARD OF DIRECTORS.
The Company's Board of Directors is divided into three approximately equal
classes, having staggered terms of office of three years each. The affirmative
vote of the holders of not less than two thirds of all of the outstanding shares
of Common Stock, Class B Common Stock and Class C Common Stock, voting together
as a single class, is required for the approval of any amendment, alteration,
change or repeal of such classification of the Company's Board.
14
PLAN OF DISTRIBUTION
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices (which may be changed from time
to time), at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices. The Company may also
offer and sell the Securities in exchange for one or more of its outstanding
issues of debt or convertible debt securities, or in exchange for one or more
classes of securities of other issuers in connection with business combination
transactions. Each Prospectus Supplement will describe the method of
distribution of the Securities offered therein.
The Company may sell Securities in any of three ways: (i) through
underwriters or dealers; (ii) through agents; or (iii) directly to one or more
purchasers. The Prospectus Supplement with respect to a particular offering of
Securities will set forth the terms of the offering of such Securities,
including the name or names of any underwriters, dealers, or agents, the
purchase price of such Securities, the proceeds to the Company from such sale,
any delayed delivery arrangements, any underwriting discounts and other items
constituting underwriters' compensation, any initial public offering price, any
discounts or concessions allowed or reallowed or paid to dealers and any
securities exchanges on which such Securities may be listed.
If underwriters are used in the sale, the Securities will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The
Securities may be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more
firms acting as underwriters. The underwriter or underwriters with respect to a
particular underwritten offering of the Securities will be named in the
Prospectus Supplement relating to such offering, and if an underwriting
syndicate is used, the managing underwriter or underwriters will be set forth on
the cover of such Prospectus Supplement. Unless otherwise set forth in the
Prospectus Supplement relating thereto, the obligations of the underwriters or
agents to purchase a particular offering of Securities will be subject to
conditions precedent, and the underwriters will be obligated to purchase all the
particular Securities offered if any are purchased.
If dealers are utilized in the sale of a particular offering of Securities
with respect to which this Prospectus is delivered, the Company will sell such
Securities to the dealers as principals. The dealers may then resell such
Securities to the public at varying prices to be determined by such dealers at
the time of resale. The names of the dealers and the terms of the transaction
will be set forth in the Prospectus Supplement relating thereto. Any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
Only underwriters named in a Prospectus Supplement will be deemed to be
underwriters in connection with the Securities described therein. Firms not so
named will have no direct or indirect participation in the underwriting of such
Securities, although such a firm may participate in the distribution of such
Securities under circumstances entitling it to a dealer's commission. It is
anticipated that any underwriting agreement pertaining to any such Securities
will (i) entitle the underwriters to indemnification by the Company against
certain civil liabilities under the Securities Act or to contribution with
respect to payments which the underwriters may be required to make in respect
thereof, (ii) provide that the obligations of the underwriters will be subject
to certain conditions precedent and (iii) provide that the underwriters
generally will be obligated to purchase all such Securities if any are
purchased.
Securities also may be offered directly by the Company or through agents
designated by the Company from time to time at fixed prices, which may be
changed, or at varying prices determined at the time of sale. Any such agent
will be named, and the terms of any such agency (including any commissions
payable by the Company to such agent) will be set forth, in the Prospectus
Supplement relating thereto. Unless otherwise indicated in such Prospectus
Supplement, any such agent will act on a reasonable best efforts basis for the
period of its appointment. Agents named in a Prospectus Supplement may be deemed
to be underwriters (within the meaning of the Securities Act) of the Securities
described therein and, under agreements which may be entered into with the
Company, may be entitled to indemnification by the Company against certain civil
liabilities under the Securities Act or to contribution with respect to payments
which the agents may be required to make in respect thereof.
If so indicated in a Prospectus Supplement, the Company will authorize
underwriters or other agents of the Company to solicit offers by certain
specified entities to purchase Securities from the Company pursuant to delayed
delivery contracts providing for payment and delivery at a specified future
date. The obligations of any purchaser under any such contract will not be
subject to any conditions except those described in such Prospectus Supplement.
Such Prospectus Supplement will set forth the commissions payable for
solicitations of such contracts.
15
Underwriters and agents may from time to time purchase and sell Securities
in the secondary market, but are not obligated to do so, and there can be no
assurance that there will be a secondary market for the Securities or liquidity
in the secondary market if one develops. From time to time, underwriters and
agents may make a market in the Securities. A particular offering of Securities
may or may not be listed on a national securities exchange.
Underwriters and agents may engage in transactions with, or perform
services for, the Company and its subsidiaries in the ordinary course of
business.
EXPERTS
The consolidated financial statements and financial statement schedules
incorporated in this Prospectus by reference to the Annual Report on Form 10-K
of Coca-Cola Bottling Co. Consolidated for the fiscal year ended January 2, 1994
have been so incorporated in reliance on the reports of Price Waterhouse,
independent accountants, given on the authority of said firm as experts in
accounting and auditing.
Any financial statements and schedules hereafter incorporated by reference
in the Registration Statement of which this prospectus is a part that have been
audited and are the subject of a report by independent accountants will be so
incorporated by reference in reliance upon such reports and upon the authority
of such firms as experts in accounting and auditing to the extent covered by
consents filed with the Commission.
LEGAL OPINIONS
Certain legal matters relating to the Securities offered hereby will be
passed upon for the Company by Witt, Gaither & Whitaker, P.C., 1100 American
National Bank Building, Chattanooga, Tennessee 37402, and for any underwriters
or agents by Cravath, Swaine & Moore. John W. Murrey, III, a director of the
Company, is a member of Witt, Gaither & Whitaker, P.C.. As of October 1, 1994,
he beneficially owned, directly or indirectly, 500 shares of the Common Stock of
the Company. John F. Henry, Jr., Secretary of the Company, is also a member of
Witt, Gaither & Whitaker, P.C..
16
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth those expenses to be incurred by the
registrant, Coca-Cola Bottling Co. Consolidated (the "COMPANY"), in connection
with the issuance and distribution of the securities being registered, other
than underwriting discounts and commissions. All of the amounts shown are
estimates, except the applicable Securities and Exchange Commission registration
fee.
SEC registration fee...................................................................... $137,931
Rating agency fees........................................................................ 150,000
Printing, engraving and postage expenses.................................................. 30,000
Legal fees................................................................................ 150,000
Accounting fees........................................................................... 50,000
Trustee's fees and expenses............................................................... 30,000
Blue Sky fees and expenses, including counsel fees........................................ 15,000
Miscellaneous expenses.................................................................... 15,000
Total................................................................................... $577,931
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Restated Certificate of Incorporation provides for
indemnification of all persons that it may indemnify pursuant to Section 145 of
the Delaware General Corporation Law ("SECTION 145").
Section 145 permits the Company to indemnify any person liable by reason of
the fact that he is or is threatened to be or was a party to a threatened,
pending or completed administrative, investigative, civil or criminal action,
suit or proceeding (including an action by or in the right of the Company) by
reason of the fact that he is or was a director, officer, employee or agent of
the Company or is or was serving at the request of the Company as a director,
officer, employee or agent of another company or "other enterprise" against
expenses, judgments, fines and amounts paid in settlement he actually and
reasonably incurred in connection with such an action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed, to the best interests of the Company (and, in the case of a criminal
action or proceeding, had no reason to believe his conduct was unlawful). In the
case of an action by or in the right of the Company, indemnification is
generally limited to attorneys' fees and other expenses and is not available
with respect to any claim, issue or matter as to which the person was adjudged
liable to the Company unless the court determines that he is fairly and
reasonably entitled to indemnity for such expenses as the court shall deem
proper.
Expenses incurred by an officer or director in defending an action, suit or
proceeding may be paid by the Company in advance of the final disposition of
such an action, suit or proceeding if the officer or director agrees to repay
such amount in the event it is determined that he was not entitled to it. Such
expenses incurred by other employees or agents may be so paid upon such terms
and conditions, if any, as the Board of Directors of the Company deems
appropriate.
In addition, Section 145 permits the Company to purchase and maintain
insurance on behalf of any person who is or was an officer, director, employee
or agent serving as described above whether or not the Company would have the
power to indemnify such person under Section 145. The Company currently
maintains such policies for its directors and officers. Constituent corporations
and corporations resulting from consolidations and mergers may indemnify such
persons to the extent they would have had the power to indemnify as separate
entities.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions or otherwise, the Company has been advised
that, in the opinion of the Commission, such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
In addition, the Company's Restated Certificate of Incorporation contains a
provision which eliminates, to the fullest extent permitted under Section
102(b)(7) of the Delaware General Corporation Law, the personal liability of the
Company's directors. Section 102(b)(7) provides that a director's personal
liability may not be eliminated: (i) for any matter in respect of which such
director shall be liable under Section 174 of the Delaware General Corporation
Law (relating to, among other things, willful or negligent payment of prohibited
dividends); (ii) for any breach of his duty of loyalty to the Company or its
stockholders; (iii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; or (iv) for any
transactions from which the director derived an improper personal benefit.
II-1
Reference is made to Section 7 of the form of Underwriting Agreement (filed
herewith as Exhibit 1) for certain provisions with respect to indemnification of
certain officers and directors of the Company.
ITEM 16. EXHIBITS.
EXHIBIT NO. DESCRIPTION
1 Form of Underwriting Agreement*
3.1 Restated Certificate of Incorporation of the Company*
3.2 Bylaws of the Company, as amended*
4.1 Form of Indenture, dated as of July 20, 1994, between the Company and NationsBank of Georgia, National
Association, as Trustee*
4.2 Form of fixed rate redeemable or non-redeemable Debt Security (to be filed by amendment or incorporated
herein by reference)
4.3 Form of Certificate of Designations, Preferences, Rights and Limitations relating to Preferred Stock (to
be filed by amendment or incorporated herein by reference)
4.4 Form of Preferred Stock Certificate (to be filed by amendment or incorporated herein by reference)
4.5 Form of Common Stock Certificate*
4.6 Form of Class C Common Stock Certificate (to be filed by amendment or incorporated herein by reference)
5 Opinion of Witt, Gaither & Whitaker, P.C.*
12 Computation of Ratio of Earnings to Fixed Charges and of Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividends (filed herewith)
23.1 Consent of Witt, Gaither & Whitaker, P.C. (included in Exhibit 5)
23.2 Consent of Price Waterhouse (filed herewith)
24 Power of Attorney (included in Signature page of this Registration Statement)
25 Form T-1 Statement of Eligibility and Qualification of the Trustee under the Trust Indenture Act of 1939*
* Previously filed.
ITEM 17. UNDERTAKINGS.
I. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
PROVIDED, HOWEVER, that the Registrant need not file a post-effective amendment
to include the information required to be included by subsection (i) or (ii)
above if such information is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, which are incorporated by reference in the Registration Statement;
and
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
II. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
II-2
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
III. The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act ("ACT") in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
IV. Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment to this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Charlotte, State of North Carolina on October
12, 1994.
COCA-COLA BOTTLING CO. CONSOLIDATED
By: /s/ JAMES L. MOORE, JR.
JAMES L. MOORE, JR.
PRESIDENT AND CHIEF OPERATING OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
TO THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATE INDICATED. EACH PERSON WHOSE SIGNATURE APPEARS BELOW
PURSUANT TO POWER OF ATTORNEY AUTHORIZED AND APPOINTED JAMES L. MOORE, JR. AND
J. FRANK HARRISON, III, AND EACH OF THEM, AS ATTORNEYS-IN-FACT, TO SIGN ON HIS
BEHALF INDIVIDUALLY AND IN THE CAPACITY DESIGNATED BELOW, AND TO FILE, ANY
AMENDMENTS, INCLUDING POST EFFECTIVE AMENDMENTS, TO THIS REGISTRATION STATEMENT
PURSUANT TO AN INSTRUMENT CONTAINED IN THE ORIGINAL SIGNATURE PAGE TO THIS
REGISTRATION STATEMENT.
SIGNATURE CAPACITY DATE
* Chairman of the Board and Director October 12, 1994
J. FRANK HARRISON, JR.
* Vice Chairman of the Board, Chief October 12, 1994
Executive Officer and Director
J. FRANK HARRISON, III
* Vice Chairman of the Board and Director October 12, 1994
REID M. HENSON
/s/ JAMES L. MOORE, JR. President, Chief Operating Officer and October 12, 1994
Director
JAMES L. MOORE, JR.
Director
JOHN M. BELK
* Director October 12, 1994
H. W. MCKAY BELK
Director
H. REID JONES
* Director October 12, 1994
DAVID L. KENNEDY, JR.
* Director October 12, 1994
JOHN W. MURREY, III
II-4
Director
HERBERT L. OAKES
* Vice President and Chief Financial Officer October 12, 1994
DAVID V. SINGER
* Vice President and Controller October 12, 1994
STEVEN D. WESTPHAL
/s/ JAMES L. MOORE, JR.
*Executed pursuant to power of attorney by James L.
Moore, Jr., as attorney-in-fact for each of the named
individuals, in the capacities indicated.
II-5
EXHIBIT INDEX
SEQUENTIAL
EXHIBIT NO. DESCRIPTION PAGE NO.
1 Form of Underwriting Agreement*
3.1 Restated Certificate of Incorporation of the Company*
3.2 Bylaws of the Company, as amended*
4.1 Form of Indenture, dated as of July 20, 1994, between the Company and
NationsBank of Georgia, National Association, as Trustee*
4.2 Form of fixed rate redeemable or non-redeemable Debt Security (to be
filed by amendment or incorporated herein by reference)
4.3 Form of Certificate of Designations, Preferences, Rights and Limitations
relating to Preferred Stock (to be filed by amendment or incorporated
herein by reference)
4.4 Form of Preferred Stock Certificate (to be filed by amendment or
incorporated herein by reference)
4.5 Form of Common Stock Certificate*
4.6 Form of Class C Common Stock Certificate (to be filed by amendment or
incorporated herein by reference)
5 Opinion of Witt, Gaither & Whitaker, P.C.*
12 Computation of Ratio of Earnings to Fixed Charges and of Ratio of
Earnings to Combined Fixed Charges and Preferred Stock Dividends (filed
herewith)
23.1 Consent of Witt, Gaither & Whitaker, P.C. (included in Exhibit 5)
23.2 Consent of Price Waterhouse (filed herewith)
24 Power of Attorney (included in Signature page of this Registration
Statement)
25 Form T-1 Statement of Eligibility and Qualification of the Trustee under
the Trust Indenture Act of 1939*
* Previously filed.
****************************************************************************
APPENDIX
On Prospectus cover there is a Coca-Cola logo in the upper right corner of
the page.
Also on the Prospectus cover there is a red herring running vertically on
the left hand side of the page. It reads as followed...
Information contained herein is subject to completion or amendment.
A registration statement relating to these securities has been filed
with the Securities and Exchange Commission. These securities may not
be sold nor may offers to buy be accepted prior to the time the
registration statement becomes effective. This prospectus shall not
constitute an offer to sell or the solicitation of an offer to buy
nor shall there be any sale of these securities in any State in
which such offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any such
State.
Exhibit 23.2 Price Waterhouse LLP signature appears on left side
of page.
EXHIBIT 12
COCA-COLA BOTTLING CO. CONSOLIDATED
RATIOS OF EARNINGS TO FIXED CHARGES
AND THE RATIOS OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
(IN THOUSANDS)
The tables below set forth the ratios of earnings to fixed charges and the
ratios of earnings to combined fixed charges and preferred stock dividends of
the Company and its consolidated subsidiaries for the periods indicated. The
ratios have been computed using the amounts for the Company, its consolidated
subsidiaries and its proportionate share of losses incurred by its fifty percent
(50%) owned affiliate. Earnings available for fixed charges represent earnings
before income taxes, extraordinary items and fixed charges. Fixed charges
represent interest incurred plus that portion of rental expense deemed to be the
equivalent of interest. Preferred Stock dividends represent all such dividends
paid by the Company in respect of its Preferred Stock, increased to an amount
representing the pre-tax earnings which would be required to cover such dividend
requirements.
RATIOS OF EARNINGS TO FIXED CHARGES
6 MONTHS ENDED
JULY 3 JULY 4 FISCAL YEAR ENDED (1)
1994 1993 1993 1992 1991 1990 1989
Income (loss) before income taxes........................ 14,404 13,215 24,015 4,851 2,956 2,205 (2,474)
Fixed charges:
Interest expense (2)................................... 15,951 17,241 32,394 38,462 23,356 26,387 25,403
Interest inherent in rental expense.................... 3,338 2,884 5,767 5,933 4,333 3,400 2,667
Piedmont fixed charges (3)............................. 2,574 -- 2,260 -- -- -- --
Fixed charges, as Defined.............................. 21,863 20,125 40,421 44,395 27,689 29,787 28,070
Earnings, as Defined..................................... 36,267 33,340 64,436 49,246 30,645 31,992 25,596
Fixed Charges, as Defined................................ 21,863 20,125 40,421 44,395 27,689 29,787 28,070
Ratio of Earnings to Fixed Charges....................... 1.66 1.66 1.59 1.11 1.11 1.07 0.91(4)
Excess (deficiency) of Earnings, as Defined,
to Fixed Charges....................................... 14,404 13,215 24,015 4,851 2,956 2,205 (2,474)
(1) The Company's fiscal year ends on the Sunday nearest December 31.
(2) Discounts on sales of trade accounts receivable of $.6 million during the
six months ended July 3, 1994, $.7 million during the six months ended July
4, 1993, $1.4 million in 1993, $1.6 million in 1992, $1.8 million in 1991,
$2.3 million in 1990 and $.7 million in 1989 are included in the interest
expense line item.
(3) Piedmont's fixed charges for 1993 and the 6 months ended July 3, 1994 are
calculated as follows:
1993 6 MONTHS ENDED JULY 3, 1994
Interest expense.................................................. 4,276 4,630
Interest inherent in rental expense............................... 243 517
4,519 5,147
Proportionate share............................................... 50% 50%
2,260 2,574
(4) As a result of the loss incurred in 1989, the Company was unable to fully
cover the indicated fixed charges.
EXHIBIT 12
COCA-COLA BOTTLING CO. CONSOLIDATED
RATIOS OF EARNINGS TO FIXED CHARGES
AND THE RATIOS OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
(IN THOUSANDS)
RATIOS OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
6 MONTHS ENDED
JULY 3 JULY 4 FISCAL YEAR ENDED (1)
1994 1993 1993 1992 1991 1990 1989
Earnings, as Defined..................................... 36,267 33,340 64,436 49,246 30,645 31,992 25,596
Preferred Stock Dividends................................ -- -- -- 4,195 728 448 --
Ratio of pre-tax income to net income.................... -- -- -- 2.33 1.01 9.63 --
Preferred Dividend factor................................ -- -- -- 9,774 735 4,314
Fixed charges, as Defined................................ 21,863 20,125 40,421 44,395 27,689 29,787 28,070
Combined Fixed Charges and Preferred Stock Dividends..... 21,863 20,125 40,421 54,169 28,424 34,101 28,070
Ratio of Earnings to Combined Fixed Charges and Preferred
Stock Dividends........................................ 1.66 1.66 1.59 0.91(2) 1.08 0.94(3) (.091)(4)
Excess (deficiency) of Earnings, as Defined, to Combined
Fixed Charges and Preferred Stock Dividends............ 14,404 13,215 24,015 (4,923) 2,221 (2,109) (2,474)
(1) The Company's fiscal year ends on the Sunday nearest December 31.
(2) As a result of the Company's effective tax rate in 1992 of 57%, the Company
was unable to fully cover the indicated combined fixed charges and preferred
stock dividends.
(3) As a result of the Company's effective tax rate in 1990 of 90%, the company
was unable to fully cover the indicated combined fixed charges and preferred
stock dividends. Had the Company's effective rate been 38%, consistent with
the effective tax rate in 1993, the preferred stock dividend factor for 1990
would have been $722,000 resulting in a ratio of earnings to combined fixed
charges and preferred stock dividends of 1.05 for 1990.
(4) As a result of the loss incurred in 1989, the Company was unable to fully
cover the indicated combined fixed charges and preferred stock dividends.
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement No. 33-54657 on Form S-3 of our
reports dated February 18, 1994 appearing on pages 38 and 51 in Coca-Cola
Bottling Co. Consolidated's Annual Report on Form 10-K for the year ended
January 2, 1994. We also consent to the references to us under the heading
"Experts" in such Prospectus.
PRICE WATERHOUSE LLP
Charlotte, North Carolina
October 12, 1994
