EXHIBIT 2.1
AMENDMENT NO. 1 TO
AMENDED AND RESTATED PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 (this "Amendment") dated April 19, 1999 to the
AMENDED AND RESTATED PURCHASE AGREEMENT (the "Purchase Agreement") dated as
of December 11, 1998 by and among THE COCA-COLA COMPANY ("KO"), ATLANTIC
INDUSTRIES ("AI"), and CADBURY SCHWEPPES PLC ("CS");
W I T N E S S E T H:
WHEREAS, KO, AI and CS are parties to the Purchase Agreement;
WHEREAS, KO, AI and CS desire to enter into this Amendment in order
to amend certain terms and conditions of the Purchase Agreement and to
provide for certain other agreements;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements contained herein and in the Purchase
Agreement, the parties do hereby agree to amend the Purchase Agreement as
follows:
1. Section 1.01(a) of the Purchase Agreement is hereby amended
by (i) adding the phrase "and Belgium" to the end of the definition of
"Know-how" on page three (3) of the Purchase Agreement, and (ii) adding the
following sentence to the end of the second full paragraph on page three (3)
of the Purchase Agreement which begins with the words "Notwithstanding the
foregoing,":
"In addition, the term 'Excluded Assets' shall
include (1) all trademarks, trademark registrations and
trademark applications in Belgium and all other assets and
properties related to the beverages business of CS and its
Affiliates in Belgium (the 'Belgium Assets'), and (2) all
trademarks, trademark registrations and trademark
applications referred to on Schedule 2.13(a)(i) as being
registered in 'Benelux' (such trademarks, trademark
registrations and trademark applications referred in this
clause (2) being referred to as the 'Benelux Trademarks')."
2. Section 1.02(a) of the Purchase Agreement is hereby amended
by replacing the phrase "U.S. $1,720,000,000" with the phrase
"U.S. $1,658,120,000".
3. Section 4.04 of the Purchase Agreement is hereby amended by
adding the following language at the end of Section 4.04:
"Subject to paragraph 5 of the Amendment among the
parties dated April 19, 1999 (the "Amendment"), nothing in
this Section 4.04 shall prevent CS from transferring or
assigning any interest in any of the Belgium Assets or the
Benelux Trademarks."
4. The parties hereby agree as follows:
"BELGIUM. The parties intend to negotiate and
cooperate in good faith in a timely manner to seek to
develop a transaction structure that would enable KO to
acquire for fair value tangible and intangible assets
relating to the trademarks used in CS's beverages business
in Belgium and the entire associated value stream. If such
a transaction is developed, the obligations of the parties
under Section 5.01 of the Purchase Agreement shall apply to
such transaction, including, without limitation, by
appealing to the Brussels Court of Appeals in Belgium."
5. The parties hereby agree as follows:
"BENELUX TRADEMARKS. At the Threshold Closing, CS
or the relevant Affiliate of CS and KO or the relevant
Affiliate of KO shall enter into an exclusive royalty-free,
freely transferable license agreement (the 'Benelux License
Agreement'), with a right to sublicense in form and
substance reasonably satisfactory to the parties and in
substantially the same form as the Excluded Country License
Agreement, pursuant to which CS will grant to KO the right
to use in perpetuity the Benelux Trademarks with respect to
The Netherlands and Luxembourg and any brand, trademark,
trade name or similar right connected or associated
therewith with respect to The Netherlands and Luxembourg.
The Benelux License Agreement shall include, without
limitation, terms providing KO or the relevant KO Affiliate
with brand extensions and rights to new packaging. If the
entering into of the Benelux License Agreement would not be
permitted at the Threshold Closing, the Purchase Price will
be adjusted by the amount attributable to The Netherlands
and Luxembourg as determined in the manner provided by the
last two sentences of Section 1.02(c) of the Purchase
Agreement. If CS or any of its Affiliates transfers any of
the Benelux Trademarks, CS shall cause any such transferee
to honor and be bound by the provisions of this paragraph."
6. The parties hereby agree as follows:
"BELGIUM CONCENTRATE AGREEMENT. At the Threshold
Closing, with respect to Belgium, the parties will enter
into an agreement for the provision by KO to CS of specific
support services in such form as the parties may mutually
agree. Such services will include, without limitation,
the supply of concentrates, as well as services related to
new products and packaging, to the extent necessary to
permit CS to continue its operations in Belgium in a manner
comparable to currently conducted operations. The supply of
concentrates shall be at KO's cost as determined below. CS
and KO will negotiate in good faith on an arms-length basis
the amounts of payments to be made by CS to KO in return for
such services to be provided by KO. For purposes of this
paragraph, 'KO's cost' means all
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direct costs and reasonable overhead and other indirect
costs associated with the provision of such supplies and
services."
7. Exhibit 5.01 of the Purchase Agreement is hereby amended by
deleting the words "Brussels Court of Appeals in Belgium" from such Exhibit.
8. Schedule 1.01(b) to the Purchase Agreement is hereby
restated in the form attached to this Amendment as Exhibit A.
9. Schedule 1.02(b)-1 to the Purchase Agreement is hereby
amended by (i) deleting the word "Belgium" from such Schedule, (ii) deleting
all corresponding values in the row of such Schedule in which the word
"Belgium" appears, and (iii) reducing the respective amounts in the row
entitled "Total Value" by the amounts in each column corresponding to
Belgium.
10. Schedules 1.02(b)-2, 1.02(b)-3 and 1.02(c)-1 to the
Purchase Agreement are hereby amended by deleting the word "Belgium" from
each such Schedule.
11. Except as set forth in this Amendment, the Purchase
Agreement shall remain in full force and effect.
12. This Amendment may be executed in one or more counterparts,
each of which shall constitute an original and all of which shall
constitute one and the same Amendment.
13. Except as otherwise provided in this Amendment, capitalized
terms used in this Amendment have the meaning given to such terms in the
Purchase Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf on the date first above written.
THE COCA-COLA COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
ATLANTIC INDUSTRIES
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and
Chief Financial Officer
CADBURY SCHWEPPES PLC
By: /s/ Xxxxxx Xxxxxx
-----------------
Name: Xxxxxx Xxxxxx
Title: Legal Director XXXXX
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LIST OF EXHIBITS
Exhibit A Revised Schedule 1.01(b) -- Certain Countries
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The Coca-Cola Company agrees to furnish supplementally to the Securities
and Exchange Commission a copy of any omitted schedule or similar attachment
upon request.
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