Exhibit 99.5
, 2004
EXCHANGE AGENT AGREEMENT
The Bank of New York
Xxx Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Attention: Corporate Trust Administration
Ladies and Gentlemen:
Coca-Cola HBC Finance B.V., a Dutch corporation with its corporate
seat in Amsterdam, (the "Company") proposes to make offers (each, an "Exchange
Offer") to exchange all of its outstanding 5.125% Notes due 2013 and 5.500%
Notes due 2015 each of which is fully, unconditionally and irrevocably
guaranteed by Coca-Cola Hellenic Bottling Company S.A., a Greek societe anonyme,
(the "Guarantor") (together, the "Old Securities") for its 5.125% Notes due 2013
and 5.500% Notes due 2015 each of which will be fully, unconditionally and
irrevocably guaranteed by the Guarantor, which have been registered under the
U.S. Securities Act of 1933 (together, the "New Securities"). The terms and
conditions of each Exchange Offer as currently contemplated are set forth in a
prospectus, dated , 2004 (the "Prospectus"), proposed to be
distributed to all record holders of the Old Securities. The Old Securities and
the New Securities are collectively referred to herein as the "Securities".
The Company hereby appoints The Bank of New York to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offers. References
hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offers are expected to be commenced by the Company on or
about , 2004. The Letter of Transmittal accompanying the Prospectus (or in
the case of book-entry securities, the Automated Tender Offer Program ("ATOP")
of the Book-Entry Transfer Facility (as defined below)) is to be used by the
holders of the Old Securities to accept the Exchange Offer and contains
instructions with respect to the delivery of certificates for Old Securities
tendered in connection therewith.
The Exchange Offers shall expire at 5:00 p.m., New York City time, on
, 2004 or on such subsequent date or time to which the Company may
extend any Exchange Offer (each, an "Expiration Time"). Subject to the terms and
conditions set forth in the Prospectus, the Company expressly reserves the right
to extend any Exchange Offer from time to time and may extend any Exchange Offer
by giving oral (promptly confirmed in writing) or written notice to you before
9:00 a.m., New York
City time, on the business day following the previously scheduled Expiration
Time relating to such Exchange Offer.
The Company expressly reserves the right to amend or terminate any
Exchange Offer, and not to accept for exchange any Old Securities not
theretofore accepted for exchange, upon the occurrence of any of the conditions
of the Exchange Offers specified in the Prospectus under the caption "The
Exchange Offers Conditions to the Exchange Offers." The Company will give oral
(promptly confirmed in writing) or written notice of any amendment, termination
or nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The Exchange
Offers" or as specifically set forth herein; provided, however, that in no way
will your general duty to act in good faith be discharged by the foregoing.
2. You will establish a book-entry account with respect to each
series of the Old Securities at The Depository Trust Company (the "Book-Entry
Transfer Facility") for purposes of the Exchange Offers within two business days
after the date of the Prospectus, and any financial institution that is a
participant in the Book-Entry Transfer Facility's systems may make book-entry
delivery of the Old Securities by causing the Book-Entry Transfer Facility to
transfer such Old Securities into your respective account in accordance with the
Book-Entry Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Old Securities (or confirmation of book-entry transfer into
your respective account at the Book-Entry Transfer Facility) and any other
documents delivered or mailed to you by or for holders of the Old Securities to
ascertain whether: (i) the Letters of Transmittal and any such other documents
are duly executed and properly completed in accordance with instructions set
forth therein; and (ii) the Old Securities have otherwise been properly
tendered. In each case where the Letter of Transmittal or any other document has
been improperly completed or executed or any of the certificates for Old
Securities are not in proper form for transfer or some other irregularity in
connection with the acceptance of the Exchange Offers exists, you will endeavor
to inform the presenters of the need for fulfillment of all requirements and to
take any other action as may be reasonably necessary or advisable to cause such
irregularity to be corrected.
4. With the approval of the Company Secretary or any of the
Directors (each, together with any other party designated in writing by such an
officer, an "Authorized Officer") of the Company (such approval, if given
orally, to be promptly
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confirmed in writing), you are authorized to waive any irregularities in
connection with any tender of Old Securities pursuant to the Exchange Offers.
5. Tenders of Old Securities may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offers - Procedures for Tendering", and Old Securities shall be
considered properly tendered to you only when tendered in accordance with the
procedures set forth therein.
Notwithstanding the provisions of this Section 5, Old Securities which
an Authorized Officer of the Company shall approve as having been properly
tendered shall be considered to be properly tendered (such approval, if given
orally, shall be promptly confirmed in writing).
6. You shall advise the Company with respect to any Old Securities
received subsequent to the applicable Expiration Time and accept its
instructions with respect to disposition of such Old Securities.
7. You shall accept tenders:
(a) in cases where the Old Securities are registered in two or
more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter
of Transmittal) is acting in a fiduciary or a representative capacity only when
proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Old
Securities, provided that customary transfer requirements, including payment of
any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Securities where so indicated
and as permitted in the Letter of Transmittal and deliver certificates for Old
Securities to the registrar for split-up and return any untendered Old
Securities to the holder (or such other person as may be designated in the
Letter of Transmittal) as promptly as practicable after expiration or
termination of the applicable Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Company will notify you (such notice, if given orally, to be
promptly confirmed in writing) of its acceptance, promptly after the applicable
Expiration Time, of all Old Securities properly tendered and you, on behalf of
the Company, will exchange such Old Securities for New Securities and cause such
Old Securities to be cancelled. Delivery of New Securities will be made on
behalf of the Company by you at the rate of $1,000 principal amount of New
Securities for each $1,000 principal amount of the corresponding series of Old
Securities tendered promptly after notice (such notice if given orally, to be
promptly confirmed in writing) of acceptance of said Old Securities
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by the Company; provided, however, that in all cases, Old Securities tendered
pursuant to the Exchange Offers will be exchanged only after timely receipt by
you of certificates for such Old Securities (or confirmation of book-entry
transfer into your respective account at the Book-Entry Transfer Facility), a
properly completed and duly executed Letter of Transmittal (or manually signed
facsimile thereof) with any required signature guarantees and any other required
documents. You shall issue New Securities only in denominations of $1,000 or any
integral multiple thereof.
9. Tenders pursuant to the Exchange Offers are irrevocable, except
that, subject to the terms and upon the conditions set forth in the Prospectus
and the Letter of Transmittal, Old Securities tendered pursuant to the Exchange
Offers may be withdrawn at any time prior to the applicable Expiration Time.
10. The Company shall not be required to exchange any Old Securities
tendered if any of the conditions relating to the particular Exchange Offer are
not met. Notice of any decision by the Company not to exchange any Old
Securities tendered shall be given (if given orally, to be promptly confirmed in
writing) by the Company to you.
11. If, pursuant to the Exchange Offers, the Company does not accept
for exchange all or part of the Old Securities tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "The Exchange Offers - Conditions to the Exchange Offer" or
otherwise, you shall as soon as practicable after the expiration or termination
of the applicable Exchange Offer return those certificates for unaccepted Old
Securities (or effect appropriate book-entry transfer), together with any
related required documents and the Letters of Transmittal relating thereto that
are in your possession, to the persons who deposited them.
12. All certificates for reissued Old Securities, unaccepted Old
Securities or for New Securities shall be forwarded by first-class mail.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall not be liable for any action or omission to act unless
the same constitutes your own negligence, willful misconduct or bad faith, and
in no event shall you be liable to a securityholder, the Company or any third
party for special, indirect or consequential damages, or lost profits, arising
in connection with this Agreement.
(b) shall have no duties or obligations other than those
specifically set forth herein or as may be subsequently agreed to in writing
between you and the Company;
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(c) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any of
the certificates or the Old Securities represented thereby deposited with you
pursuant to the Exchange Offers, and will not be required to and will make no
representation as to the validity, value or genuineness of the Exchange Offers;
(d) shall not be obligated to take any legal action hereunder
which might in your judgment involve any expense or liability, unless you shall
have been furnished with indemnity satisfactory to you;
(e) may conclusively rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter, telegram or
other document or security delivered to you and believed by you to be genuine
and to have been signed or presented by the proper person or persons;
(f) may act upon any tender, statement, request, document,
agreement, certificate or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also as to the
truth and accuracy of any information contained therein, which you shall in good
faith believe to be genuine or to have been signed or presented by the proper
person or persons;
(g) may conclusively rely on and shall be protected in acting
upon written or oral instructions from any Authorized Officer of the Company;
(h) may consult with counsel of your selection with respect to
any questions relating to your duties and responsibilities and the advice or
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by you hereunder
in good faith and in accordance with the advice or opinion of such counsel; and
(i) shall not advise any person tendering Old Securities pursuant
to the Exchange Offers as to the wisdom of making such tender or as to the
market value or decline or appreciation in market value of any Old Securities.
15. You shall take such action as may from time to time be requested
by the Company (and such other action as you may deem appropriate) to furnish
copies of the Prospectus, Letter of Transmittal and the Notice of Guaranteed
Delivery (as defined in the Prospectus) or such other forms as may be approved
from time to time by the Company, to all persons requesting such documents and
to accept and comply with telephone requests for information relating to the
Exchange Offers, provided that such information shall relate only to the
procedures for accepting (or withdrawing from) the Exchange Offers. The Company
will furnish you with copies of such documents on your request. All other
requests for information relating to the Exchange Offers shall be directed to
the Company, Attention: Company Secretary.
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16. You shall advise by facsimile transmission to the Company
Secretary (at the facsimile numbers x00-000-000-0000) and such other person or
persons as the Company may request, daily (and more frequently during the week
immediately preceding the applicable Expiration Time if requested) up to and
including the applicable Expiration Time, as to the number of Old Securities
which have been tendered pursuant to the Exchange Offers and the items received
by you pursuant to this Agreement, separately reporting and giving cumulative
totals as to items properly received and items improperly received. In addition,
you will also inform, and cooperate in making available to, the Company or any
such other person or persons upon oral request made from time to time prior to
the applicable Expiration Time of such other information as they may reasonably
request. Such cooperation shall include, without limitation, the granting by you
to the Company and such person as the Company may request of access to those
persons on your staff who are responsible for receiving tenders, in order to
ensure that immediately prior to the applicable Expiration Time the Company
shall have received information in sufficient detail to enable it to decide
whether to extend the applicable Exchange Offer. You shall prepare a final list
of all persons whose tenders were accepted, the aggregate principal amount of
Old Securities tendered, the aggregate principal amount of Old Securities
accepted and deliver said list to the Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall
be stamped by you as to the date and, after the expiration of the applicable
Exchange Offer, the time, of receipt thereof and shall be preserved by you for a
period of time at least equal to the period of time you preserve other records
pertaining to the transfer of securities. You shall dispose of unused Letters of
Transmittal and other surplus materials by returning them to the Company.
18. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth in the fee letter between the Company
and you, dated , 2004. The provisions of this section shall survive the
termination of this Agreement.
19. You hereby acknowledge receipt of the Prospectus and the Letter
of Transmittal. Any inconsistency between this Agreement, on the one hand, and
the Prospectus and the Letter of Transmittal (as they may be amended from time
to time), on the other hand, shall be resolved in favor of the latter two
documents, except with respect to your duties, liabilities and indemnification
as Exchange Agent.
20. The Company covenants and agrees to fully indemnify and hold you
harmless against any and all loss, liability, cost or expense, including
attorneys' fees and expenses, incurred without negligence or willful misconduct
on your part, arising out of or in connection with any act, omission, delay or
refusal made by you in reliance upon any signature, endorsement, assignment,
certificate, order, request, notice, instruction or other instrument or document
believed by you to be valid, genuine and sufficient and in accepting any tender
or effecting any transfer of Old Securities believed by you in good
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faith to be authorized, and in delaying or refusing in good faith to accept any
tenders or effect any transfer of Old Securities. In each case, the Company
shall be notified by you, by letter or facsimile transmission, of the written
assertion of a claim against you or of any other action commenced against you,
promptly after you shall have received any such written assertion or shall have
been served with a summons in connection therewith. The Company shall be
entitled to participate at its own expense in the defense of any such claim or
other action and, if the Company so elects, the Company shall assume the defense
of any suit brought to enforce any such claim. In the event that the Company
shall assume the defense of any such suit, the Company shall not be liable for
the fees and expenses of any additional counsel thereafter retained by you, so
long as the Company shall retain counsel satisfactory to you to defend such
suit, and so long as you have not determined, in your reasonable judgment, that
a conflict of interest exists between you and the Company. The provisions of
this section shall survive the termination of this Agreement.
21. You shall arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service.
22. You shall deliver or cause to be delivered, in a timely manner to
each governmental authority to which any transfer taxes are payable in respect
of the exchange of Old Securities, the Company's check in the amount of all
transfer taxes so payable; provided, however, that you shall reimburse the
Company for amounts refunded to you in respect of your payment of any such
transfer taxes, at such time as such refund is received by you.
23. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of New
York applicable to agreements made and to be performed entirely within such
state, and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
24. This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
25. In case any provision of this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
26. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
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27. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
If to the Company:
Xxxxxxxxxxx 000
0000XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Facsimile: x(00) 000 000 0000
Attention: Company Secretary
If to the Exchange Agent:
Xxx Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Facsimile:
Attention: Corporate Trust Administration
28. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the later Expiration Time. Notwithstanding the
foregoing, Sections 18 and 20 shall survive the termination of this Agreement.
Upon any termination of this Agreement, you shall promptly deliver to the
Company any certificates for Securities, funds or property then held by you as
Exchange Agent under this Agreement.
29. This Agreement shall be binding and effective as of the date
hereof.
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
COCA-COLA HBC FINANCE B.V.
By:
---------------------------------------
Name:
Title:
Accepted as of the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:
-----------------------------------------
Name:
Title:
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