EXHIBIT B (99.2)
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "Agreement") dated as of January 2,
2002, by and between Piedmont Partnership Holding Company, a Delaware
corporation ("KO Subsidiary"), and, Coca-Cola Ventures, Inc., a Delaware
corporation ("Consolidated Subsidiary").
W I T N E S S E T H:
WHEREAS, each of KO Subsidiary and Consolidated Subsidiary owns a 50%
general partnership interest in Piedmont Coca-Cola Bottling Partnership, a
Delaware general partnership (the "Partnership"); and
WHEREAS, the Partnership was formerly known as Carolina Coca-Cola Bottling
Partnership; and
WHEREAS, the Partnership was formed pursuant to the Partnership Agreement
of Carolina Coca-Cola Bottling Partnership, dated as of July 2, 1993, as amended
by the First Amendment, dated as of August 5, 1993, and the Second Amendment,
dated as of August 12, 1993 (as amended, the "Partnership Agreement"); and
WHEREAS, KO Subsidiary desires to sell to Consolidated Subsidiary and
Consolidated Subsidiary desires to purchase from KO Subsidiary, on the terms and
subject to the conditions set forth herein, a 4.651% interest in the capital,
profits and losses of the Partnership, including, without limitation, 9.302% of
KO Subsidiarys Capital Account, KO Subsidiarys rights to allocations of net
profit and net loss and distributions of cash flow and capital items of the
Partnership (the "Interest") .
NOW, THEREFORE, in consideration of the representations, warranties and
agreements set forth herein and for other good and valuable consideration the
receipt and adequacy of which is hereby acknowledged, the parties hereto agree
as follows.
1 Purchase and Sale. Upon the terms and subject to the conditions set forth
in this Agreement, KO Subsidiary agrees to sell to Consolidated Subsidiary, and
Consolidated Subsidiary agrees to purchase from KO Subsidiary, the Interest (the
"Sale") for an aggregate purchase price of $10 million (the Purchase Price).
2. Representations and Warranties of KO Subsidiary. KO Subsidiary hereby
represents and warrants to Consolidated Subsidiary as of the date hereof as
follows:
(a) KO Subsidiary (i) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and
(ii) has all requisite corporate power and authority to execute, deliver
and perform its obligations under this Agreement.
(b) The execution, delivery and performance of this Agreement by KO
Subsidiary has been duly authorized by all requisite corporate action and
no further consent or authorization of KO Subsidiary, its Board of
Directors or its stockholders is required. This Agreement has been duly
executed and delivered by KO Subsidiary and, when duly authorized, executed
and delivered by Consolidated Subsidiary, will constitute the valid and
binding obligations of KO Subsidiary enforceable against KO Subsidiary in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance or transfer,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity relating to enforceability
(regardless of whether considered in a proceeding at law or in equity).
(c) No consent, approval, authorization or order ("Consent") of any
court, governmental agency or other body or of any other third party is
required for execution and delivery by KO Subsidiary of this Agreement or
the performance of its obligations hereunder, other than those that (i) may
arise under the Partnership Agreement or (ii) as may already have been
received.
(d) Neither the execution and delivery by KO Subsidiary of this
Agreement nor the performance by KO Subsidiary of any of its obligations
hereunder violates, conflicts with, results in a breach of, or constitutes
a default (or an event which with the giving of notice or the lapse of time
or both would be reasonably likely to constitute a default) under (i) the
certificate of incorporation or other organizational documents of KO
Subsidiary; (ii) any decree, judgment, order, law, rule, regulation or
other restriction of any court, governmental agency or body, or arbitrator
having jurisdiction over KO Subsidiary or any of its subsidiaries, other
than the Partnership, or any of their respective properties or, (iii)
except as set forth in paragraph (c) above, the terms of any material
agreement to which KO Subsidiary or any of its subsidiaries, other than the
Partnership, is a party, by which KO Subsidiary or any of its subsidiaries,
other than the Partnership, is bound, or to which any of the properties or
assets of KO Subsidiary or any of its subsidiaries, other than the
Partnership, are subject, other than violations, conflicts, breaches or
defaults which, individually or in the aggregate, would not have a material
adverse effect on the ability of KO Subsidiary to perform its obligations
hereunder.
(e) KO Subsidiary has good and valid title to the Interest, free and
clear of any security interests, liens, claims or other encumbrances (other
than encumbrances that may arise under the Partnership Agreement and
federal or state securities laws).
(f) There are no brokerage commissions, finder's fees or similar fees
or
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commissions payable by KO Subsidiary in connection with the transactions
contemplated hereby.
3. Representations and Warranties of Consolidated Subsidiary. Consolidated
Subsidiary hereby represents and warrants to KO Subsidiary as of the date hereof
as follows:
(a) Consolidated Subsidiary (i) is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware and (ii) has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement.
(b) The execution, delivery and performance of this Agreement by
Consolidated Subsidiary has been duly authorized by all requisite corporate
action and no further consent or authorization of Consolidated Subsidiary,
its Board of Directors or its stockholders is re- quired. This Agreement
has been duly executed and delivered by Consolidated Subsidiary and, when
duly authorized, executed and delivered by KO Subsidiary, will constitute
the valid and binding obligations of Consolidated Subsidiary enforceable
against Consolidated Subsidiary in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance or transfer, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general principles of
equity relating to enforceability (regardless of whether considered in a
proceeding at law or in equity).
(c) No Consent of any court, governmental agency or other body or any
other third party is required for execution and delivery by Consolidated
Subsidiary of this Agreement or the performance of its obligations
hereunder other than those that (i) may arise under the Partnership
Agreement or (ii) are set forth on Schedule I hereto, which Consents have
already been received.
(d) Neither the execution and delivery by Consolidated Subsidiary of
this Agreement nor the performance by Consolidated Subsidiary of any of its
obligations hereunder violates, conflicts with, results in a breach of, or
constitutes a default (or an event which with the giving of notice or the
lapse of time or both would be reasonably likely to constitute a default)
under (i) the certificate of incorporation or other organizational
documents of Consolidated Subsidiary, (ii) any decree, judgment, order,
law, rule, regulation or other restriction of any court, governmental
agency or body, or arbitrator having jurisdic- tion over Consolidated
Subsidiary or any of its subsidiaries or any of their respective properties
or assets, or (iii) the terms of any material agreement to which
Consolidated Subsidiary or any of its subsidiaries is a party, by which
Consolidated Subsidiary or any of its subsidiaries are bound, or to which
any of the properties or assets of Consolidated Subsidiary or any of its
subsidiaries are subject, other than violations, conflicts, breaches or
defaults which, individually or in the aggregate, would not have a material
adverse effect on the ability of Consolidated Subsidiary to perform its
obligations hereunder.
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(e) The Interest is being acquired by Consolidated Subsidiary for its
own account and with no intention of distributing or reselling the Interest
or any part thereof in any transaction that would be in violation of the
securities laws of the United States of America, or any state, without
prejudice, however, to the rights of Consolidated Subsidiary at all times
to sell or otherwise dispose of all or any part of the Interest under an
effective registration available under the Securities Act of 1933, as
amended (the Securities Act) or an applicable exemption from registration,
and subject, nevertheless, to the disposition of Consolidated Subsidiary's
property being at all times within its control. If Consolidated Subsidiary
should in the future decide to dispose of all or any portion of the
Interest, Consolidated Subsidiary understands and agrees that it may do so
only in compliance with the Securities Act and applicable state securities
laws, as then in effect.
(f) Consolidated Subsidiary understands that the Interests has not
been and will not be registered under the Securities Act for the reason
that the sale provided for in this Agreement is exempt pursuant to Section
4(2) of the Securities Act and that the reliance of KO Subsidiary on such
exemption is predicated in part on Consolidated Subsidiary's
representations set forth herein. Consolidated Subsidiary represents that
it is experienced in evaluating companies such as the Partnership, has such
knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of its investment and has the ability to
suffer the total loss of its investment.
(g) Consolidated Subsidiary is an "accredited investor" within the
meaning of Rule 501 of Regulation D under the Securities Act.
(h) There are no brokerage commissions, finder's fees or similar fees
or commissions payable by Consolidated Subsidiary in connection with the
transactions contemplated hereby.
4. Survival of the Representations, Warranties, etc. The respective
representations, warranties and agreements made in this Agreement shall survive
the date hereof.
5. Closing. The closing of the Sale (the "Closing") shall occur on the date
hereof. At the Closing, (a) KO Subsidiary shall deliver to Consolidated
Subsidiary: (i) a duly executed Assignment of Interest and (ii) a duly executed
Master Amendment to Partnership Agreement, Management Agreement and Definition
and Adjustment Agreement and (b) Consolidated Subsidiary shall deliver to KO
Subsidiary: (i) the Purchase Price by wire transfer of immediately available
funds, (ii) a duly executed Assignment of Interest and (iii) a duly executed
Master Amendment to Partnership Agreement, Management Agreement and Definition
and Adjustment Agreement.
6. Tax Covenants. KO Subsidiary and Consolidated Subsidiary each covenants
and agrees to cause the Partnership to timely file federal and, if applicable,
state income tax returns
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including Internal Revenue Form 1065) for the Partnerships taxable year
during which the Closing occurs and, unless such elections would already be in
effect, to include with the federal return an election under section 754 of the
Internal Revenue Code of 1986, as amended, or any successor statute thereto (the
Code) to adjust the basis of Partnership property under section 734(b) with
respect to distributions of Partnership property and section 743(b) of the Code
with respect to transfers of partnership interests of the Partnership (and to
include with such state income tax returns any comparable election that may be
applicable with respect to any state income tax return to be filed by the
Partnership) (the Section 754 Elections). The Section 754 Elections shall be
filed in such form and manner as determined by Consolidated Subsidiary in its
sole discretion. In addition, if requested by Consolidated Subsidiary, KO
Subsidiary shall join with Consolidated Subsidiary to cause the Partnership to
timely file protective Section 754 Elections with any other income tax returns
filed by the Partnership with respect to its 2002 fiscal year in such form and
manner as Consolidated Subsidiary in its sole discretion deems to be appropriate
to be assured that the adjustments described in section 743(b) of the Code with
respect to the adjusted tax basis of the Partnerships property are made with
respect to Consolidated Subsidiarys purchase of the Interest.
7. Notices. All notices and other communications under this Agreement shall
be in writing and shall be deemed given (a) when delivered by hand or certified
mail, return receipt requested, postage prepaid, (b) when transmitted by
telecopier, confirmation of which is mechanically received, or (c) when received
if sent by overnight courier, to the addressee at the following addresses or
telecopier numbers (or to such other address or telecopier number as a party may
specify from time to time by notice hereunder):
(i) if to KO Subsidiary:
Piedmont Partnership Holding Company
c/o The Coca-Cola Company
▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
The Coca-Cola Company
▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to Consolidated Subsidiary:
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Coca-Cola Ventures, Inc.
c/o Coca-Cola Bottling Co. Consolidated
Coca-Cola Corporate Center
▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ (28211-3481)
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
Bank of America Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
8. Miscellaneous
(a) This Agreement may be executed in one or more counterparts and it is
not necessary that signatures of all parties appear on the same counterpart, but
such counterparts together shall constitute but one and the same agreement.
(b) This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns, and no other person
shall have any right or obligation hereunder. Neither party may assign this
Agreement without the prior written consent of the other party.
(d) In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
(e) Any provision of this Agreement may be amended or waived if, and only
if, such amendment or waiver is in writing and is signed by the parties hereto.
(f) Each party hereto shall execute any and all further documents,
agreements and instruments, and take all further action, that may be required
under applicable law or which the other party hereto may reasonably request, in
order to effectuate the transactions contemplated hereby.
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(g) The headings of the sections and subsections of this document have been
inserted for convenience of reference only, shall not be deemed to be a part of
this Agreement for any purpose and shall not in any way define or affect the
meaning, construction or scope of any provision hereof.
(h) Each party to this Agreement shall bear its own costs and expenses
incurred in connection with the transactions contemplated hereby.
(i) This Agreement constitutes the entire agreement and supersedes all
prior agreements and understandings, both written and oral, between the parties
hereto with respect to the subject matter of this Agreement. This Agreement is
not intended to confer upon any person other than the parties hereto any rights
or remedies hereunder.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase
Agreement to be duly executed as of the date first above written.
PIEDMONT PARTNERSHIP HOLDING COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
COCA-COLA VENTURES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SCHEDULE I
None
