VOTING AGREEMENT
THIS VOTING AGREEMENT effective this 27th day of January, 1989 (the
"Agreement"), by and among The Coca-Cola Company, a Delaware corporation (the
"Company"), J. Xxxxx Xxxxxxxx, III and J. Xxxxx Xxxxxxxx (the latter two persons
being hereinafter referred to as the "Harrisons") and Xxxx X. Xxxxxx in his
capacity as co-trustee of three trusts for the benefit of certain relatives of
the Harrisons (the "Co-Trustee").
WHEREAS, the Harrisons, the Co-Trustee and the Company have the power to
vote in the aggregate 3,404,018 issued and outstanding shares of the Common
Stock, $1.00 par value ("Common Stock"), and 1,553,728 issued and outstanding
shares of the Class B Common Stock, $1.00 par value ("Class B Common Stock") of
Coca-Cola Bottling Co. Consolidated, a Delaware corporation ("Consolidated"), as
set forth in Exhibit A; and
WHEREAS, the Harrisons, the Co-Trustee and the Company desire to enter into
this Voting Agreement in the manner set forth hereinbelow and desire that this
Agreement be specifically enforceable against each of them and that their
respective shares of Common Stock and Class B Common Stock (together
"Consolidated Stock") be voted in the manner and for the purposes specified
herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the Harrisons, the Co-Trustee and the Company hereby agree as follows:
1. Voting Agreement.
(a) The Harrisons and the Co-Trustee hereby agree to vote all of the
Consolidated Stock as to which they now or hereafter have voting power (subject
to any applicable fiduciary duties) in favor of and in order to:
(i) Nominate and elect as a director of Consolidated one person designated
in writing by the Company and reasonably acceptable to the Harrisons. The
person initially so designated shall be seated on the Board of Directors of
Consolidated as soon as practicable after the date of this Agreement and
shall thereafter be retained as a director subject to the provisions of
Paragraph 7(e) hereof.
(ii) Continue to vote for the person so designated and elected as a
director in accordance with this Agreement and Paragraph 9 of the Stock
Rights and Restrictions Agreement dated as of January 27, 1989, between the
Company and Consolidated (the "Stock Rights and Restrictions Agreement")
or any successor director designated in accordance with subparagraph
(a)(iii) of this Paragraph 1 during the term of this Agreement.
(iii) In the event any director so designated and elected cannot or will
not serve as a director or ceases serving as a director of Consolidated for
any reason whatsoever, the Harrisons agree to vote for the person
designated in writing by the Company and reasonably acceptable to them to
serve as a successor director, and this provision shall be effective as to
any replacement designee for any such successor.
(b) The Company agrees that while this Agreement is in effect and
thereafter it will support the control of Consolidated by the Xxxxxxxx family
and cooperate in good faith with the Harrisons with respect thereto, provided in
each case that J. Xxxxx Xxxxxxxx, III and/or J. Xxxxx Xxxxxxxx are/is actively
involved in the management of Consolidated.
2. Irrevocable Proxy. In order to ensure the voting of the shares of
Consolidated Stock beneficially owned by the Company in accordance with this
Agreement, the Company agrees to execute an irrevocable proxy simultaneously
with the execution hereof in the form of Exhibit B attached hereto, granting to
J. Xxxxx Xxxxxxxx, III, during his lifetime and, thereafter, to J. Xxxxx
Xxxxxxxx, the right to vote, or to execute and deliver shareholder written
consents, in respect of all Common Stock and Class B Common Stock now or
hereafter owned and any other shares of Consolidated Stock which the Company has
the right to vote. It is understood and agreed that such irrevocable proxy
relates not only to voting for the election of directors of Consolidated in
accordance with this Agreement but also to voting on any matter as to which
holders of Common Stock or Class B Common Stock are entitled to vote; provided,
however, that the Harrisons will not be entitled to vote such shares with
respect to any merger, consolidation, sale of substantially all of its assets,
any other corporate reorganization or other similar corporate transaction
involving Consolidated, as a result of which the Harrisons would not exercise
voting control of the resulting entity or the Company would not have an equity
interest in the resulting entity.
3. Changes in Common Stock or Class B Common Stock. In the event that
subsequent to the date of this Agreement any shares or other securities (other
than any shares or securities of another corporation issued to Consolidated
shareholders pursuant to a plan of merger) are issued on, or in exchange for,
any of the shares of the Common Stock or Class B Common Stock held by the
Company by reason of any stock dividend, stock split, consolidation of shares,
reclassification, merger or consolidation involving Consolidated, such shares or
securities
shall be deemed to be Consolidated Stock for purposes of this Agreement, and the
irrevocable proxy will be effective as to any such shares.
4. Class B Common Stock. In the event that (i) there would no longer be a
viable market for the Common Stock due to the existence of disproportionate
voting rights in the Class B Common Stock, as a result of which the Harrisons
have surrendered all such shares of Class B Common Stock to Consolidated or no
longer are able to vote their shares of Class B Common Stock disproportionately
or (ii) any rule, regulation or condition requires elimination of Class B Common
Stock, J. Xxxxx Xxxxxxxx, III and in the event of his death, J. Xxxxx Xxxxxxxx,
shall have the option to purchase the Company's shares of Class B Common Stock
on the next anniversary of the date of this Agreement, for $38.50 per share plus
an amount sufficient to give the Company a 25% compounded annual rate of return
from May 7, 1987 after taking into account dividends and other distributions
previously received thereon. Such option must be exercised within three months
of the occurrence of the event that creates the circumstances referred to in the
first sentence hereof and would be assignable to Consolidated by either of the
Harrisons and to J. Xxxxx Xxxxxxxx by J. Xxxxx Xxxxxxxx, III.
5. Representations of the Harrisons and the Company. The Company and each
of the Harrisons hereby represent and warrant to each other that (a) it or he
owns and/or has the right to vote the number of shares of the Common Stock and
Class B Common Stock as set forth opposite such shareholder's name on Exhibit A
attached hereto, (b) such shareholder has full power to enter into this
Agreement and has not, prior to the date of this Agreement, executed or
delivered any proxy or entered into any other voting agreement or similar
arrangement other than one which has expired or terminated prior to the date
hereof, and (c) such shareholder will not take any action inconsistent with the
purposes and provisions of this Agreement.
6. Good Faith Consideration of Transfer of Consolidated Stock. Subject to
Paragraph 4 of the Stock Rights and Restrictions Agreement, the Company agrees
that at any time or from time to time during the term of this Agreement it will
consider in good faith any proposal that the Harrisons, or either of them, make
for the purchase of shares of Consolidated Stock held by the Company, but it is
understood that this provision is not intended to create any legally binding
option or right to purchase such shares but as an acknowledgement of good faith
consideration in the future.
7. General Provisions. (a) All of the covenants and agreements contained in
this Agreement shall be binding upon, and enure to the benefit of, the
respective parties and their successors, assigns, heirs, executors,
administrators and other legal representatives, as the case may be, provided
that this Agreement shall not apply to any Affected Shares, as defined in
Paragraph 4 of the Stock Rights and Restrictions Agreement, as to which shares
the offer to sell was not accepted by Consolidated and which were thereafter
sold without being again subject to said Paragraph 4.
(b) This Agreement, and the rights of the parties hereto, shall be governed
by and construed in accordance with the laws of the State of Delaware.
(c) This Agreement may be executed in one or more counterparts, each of
which will be deemed an original but all of which together shall constitute one
and the same instrument.
(d) This Agreement and the irrevocable proxy shall terminate (i) upon the
written agreement of the parties, or (ii) at such time as the Company is not the
beneficial owner of any shares of Consolidated Stock.
(e) The Company's right to have a designee on the Board of Directors of
Consolidated shall terminate (but all other provisions of this Agreement shall
remain in effect) at such time as the Company is not the owner of shares by
which the Company possesses at least 15% of the total voting power of all
classes of common stock of Consolidated.
(f) The irrevocable proxy shall terminate (but all other provisions of this
Agreement shall remain in effect) at such time as (i) J. Xxxxx Xxxxxxxx or
executors or trustees under his will and/or J. Xxxxx Xxxxxxxx, III do not
collectively own all of the 712,796 shared Of Class B Common Stock currently
owned by J. Xxxxx Xxxxxxxx, or (ii) the trusts which are parties to that certain
Shareholder's Agreement, dated as of December 13, 1988 among the Company, the
Harrisons and such trusts, hold less than fifty percent (50%) of the shares of
Class B Common Stock held by them, in the aggregate, as of the date hereof.
(g) An appropriate legend will be imprinted on the certificates of Common
Stock and Class B Common Stock subject to this Agreement and the irrevocable
proxy with respect to the existence of this Agreement and the irrevocable proxy.
(h) If any provision of this Agreement shall be declared void or
unenforceable by any court or administrative board of
competent jurisdiction, such provision shall be deemed to have been severed from
the remainder of this Agreement and this Agreement shall continue in all
respects to be valid and enforceable.
(i) No waiver of any right or remedy hereunder or any breach of any
covenant, condition, agreement, representation or warranty of this Agreement
extended by any party hereto shall be construed as a waiver of any rights or
remedies of any other party hereto or with respect to any subsequent breach.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
THE COCA-COLA COMPANY
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Its: Authorized Representative
/s/ J. Xxxxx Xxxxxxxx, III
---------------------------------
J. Xxxxx Xxxxxxxx, III
/s/ J. Xxxxx Xxxxxxxx
---------------------------------
J. Xxxxx Xxxxxxxx
/s/ Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx, Co-Trustee
EXHIBIT A
---------
Name Shares of Shares of Class B
---- Common Stock Common Stock
------------ ------------------
J. Xxxxx Xxxxxxxx 948,582(1)(3) 948,582(2)(3)(4)
J. Xxxxx Xxxxxxxx, III 403(3)(5) 335,988(6)
Xxxx X. Xxxxxx, Co-Trustee -0- 99,942(7)
The Coca-Cola Company 2,455,033 269,158
1. Of the 948,582 shares of Common Stock beneficially owned, 712,796 are owned
outright and 235,786 are held in a trust for the benefit of one of Xx.
Xxxxxxxx'x relatives as to which Xx. Xxxxxxxx has the sole right to vote
such shares.
2. Of the 948,582 shares of Class B Common Stock beneficially owned, 712,796
are owned outright and 235,786 are held in a trust for the benefit of Xx.
Xxxxxxxx, as to which Xx. Xxxxxxxx has the sole right to vote such shares.
3. No shares of Common Stock or Class B Common Stock owned by the Company are
included in the total beneficial ownership of Xx. Xxxxxxxx or Xx. Xxxxxxxx,
III.
4. All shares of Class B Common Stock are convertible on a share for share
basis into shares of Common Stock.
5. All 403 shares of Common Stock are held by Xx. Xxxxxxxx, III as custodian
for his minor children.
6. Of the 335,988 shares of Class B Common Stock beneficially owned by Xx.
Xxxxxxxx, III, 99,942 shares are held in 3 trusts for the benefit of
certain relatives of Xx. Xxxxxxxx, III as to which he is a co-trustee and
shares the power to vote and to dispose of.
7. Xx. Xxxxxx has beneficial ownership of 99,942 shares of Class B Common
Stock by virtue of his serving as Co-Trustee of 3 trusts for the benefit of
certain relatives of the Harrisons. Such trusts hold, in the aggregate,
99,942 shares of Class B Common as to which Xx. Xxxxxx, as Co-Trustee,
shares the power to vote and to dispose of.
EXHIBIT B
COCA-COLA BOTTLING CO. CONSOLIDATED
IRREVOCABLE PROXY
The undersigned agrees to grant, and hereby grants to J. Xxxxx Xxxxxxxx,
III, during his lifetime and, thereafter, to J. Xxxxx Xxxxxxxx, an irrevocable
proxy pursuant to the provisions of Section 212 of the Delaware General
Corporation Law to vote, or to execute and deliver written consents or otherwise
exercise voting rights in any respect or fashion with respect to, all shares of
Common Stock, $1.00 par value, and Class B Common Stock, $1.00 par value, of
Coca-Cola Bottling Co. Consolidated ("Consolidated"), now owned or hereafter
acquired by the undersigned as fully, to the same extent and with the same
effect as the undersigned might or could do under any applicable laws or
regulations governing the rights and powers of stockholders of a Delaware
corporation, in connection with the election of directors of Consolidated and
all other matters as to which such shares of Common Stock or Class B Common
Stock are entitled to vote, except with respect to any merger, consolidation,
sale of substantially all of its assets, any other corporate reorganization or
other similar corporate transaction involving Consolidated (as a result of which
the Harrisons would not exercise voting control of, or the Company would not
have an equity interest in, the resulting entity), at any stockholders' meeting
or otherwise as may be permitted under applicable law and the Certificate of
Incorporation and By-Laws of Consolidated, as provided in the Voting Agreement,
dated January 27, 1989, among the undersigned and J. Xxxxx Xxxxxxxx, III and J.
Xxxxx Xxxxxxxx. The undersigned hereby affirms that this proxy is given as a
condition of said Voting Agreement and as such is coupled with an interest and
is irrevocable. It is further understood by the undersigned that this proxy may
be exercised by J. Xxxxx Xxxxxxxx, III or J. Xxxxx Xxxxxxxx, for the period
beginning on the date hereof and ending at the time when the undersigned has no
right to vote or direct the vote any shares of Common Stock and Class B Common
Stock, unless sooner terminated in accordance with provisions of said Voting
Agreement.
THIS PROXY SHALL REMAIN IN FULL FORCE AND EFFECT AND BE ENFORCEABLE AGAINST
ANY DONEE, TRANSFEREE OR ASSIGNEE OF THE SHARES OF COMMON STOCK AND CLASS B
COMMON STOCK TO WHICH IT RELATES, EXCEPT FOR SHARES TRANSFERRED PURSUANT TO
PARAGRAPH 4 OF THE STOCK RIGHTS AND RESTRICTIONS AGREEMENT DATED AS OF JANUARY
27, 1989 BETWEEN CONSOLIDATED AND THE UNDERSIGNED.
Dated this 27 day of January, 1989.
THE COCA-COLA COMPANY
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Its: Authorized Representative
