Coca-Cola Bottling Co. Consolidated Underwriting Agreement
Exhibit 1.1
Coca-Cola Bottling Co. Consolidated
7.00% Notes due 0000
Xxxxxxxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxx Xxxx
April 2, 2009
April 2, 2009
Citigroup Global Markets Inc.
Wachovia Capital Markets, LLC
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
As Representatives of the several Underwriters named in Schedule I
Wachovia Capital Markets, LLC
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
As Representatives of the several Underwriters named in Schedule I
c/o | Citigroup Global Markets Inc. 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
Ladies and Gentlemen:
Coca-Cola Bottling Co. Consolidated, a Delaware corporation (the “Company”), proposes to sell
to the several underwriters named in Schedule I hereto (the “Underwriters”), for whom you (the
“Representatives”) are acting as representatives, $110,000,000 principal amount of its 7.00% Senior
Notes due 2019 (the “Securities”). The Securities are to be issued pursuant to an indenture (the
“Indenture”) dated as of July 20, 1994, as supplemented and restated by a supplemental indenture
dated March 3, 1995, between the Company and The Bank of New York Mellon Trust Company, N.A., as
successor trustee (the “Trustee”). To the extent there are no additional Underwriters listed on
Schedule I other than you, the term Representatives as used herein shall mean you, as Underwriters,
and the terms Representatives and Underwriters shall mean either the singular or plural as the
context requires. Any reference herein to the Registration Statement, the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under
the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of
the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the
Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated
therein by reference. Certain terms used herein are defined in Section 20 hereof.
1. Representations and Warranties. The Company represents and warrants to, and agrees
with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission a registration statement on Form S-3 (No.
333-155635), including a related Base Prospectus, for registration under the Act of the
offering and sale of the Securities. Such Registration Statement, including any amendments
thereto filed prior to the Execution Time, has become effective. The Company may have filed
with the Commission, as part of an amendment to the Registration Statement or pursuant to
Rule 424(b), one or more preliminary prospectus supplements relating to the Securities, each
of which has previously been furnished to you. The Company will file with the Commission a
final prospectus supplement relating to the Securities in accordance with Rule 424(b). As
filed, such final prospectus supplement shall contain all information required by the Act
and the rules thereunder, and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the form furnished to you
prior to the Execution Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes (beyond that contained
in the Base Prospectus and any Preliminary Prospectus) as the Company has advised you, prior
to the Execution Time, will be included or made therein. The Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x). The initial
Effective Date of the Registration Statement was not earlier than the date three years
before the Execution Time.
(b) On each Effective Date, the Registration Statement did, and when the Final
Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as defined
herein), the Final Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; on each Effective Date and at the
Execution Time, the Registration Statement did not and will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; on the Effective Date and
on the Closing Date the Indenture did or will comply in all material respects with the
applicable requirements of the Trust Indenture Act and the rules thereunder; and on the date
of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to (i) that part
of the Registration Statement which shall constitute the Statement of Eligibility (Form T-1)
under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted
from the Registration Statement or the Final Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to the Company by or
on behalf of any Underwriter through the Representatives specifically for inclusion in the
Registration Statement or the Final Prospectus (or any supplement thereto), it being
understood and agreed that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 8 hereof.
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(c) The Disclosure Package does not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Disclosure Package based upon
and in conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof.
(d) (i) At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2)) of the Securities and (ii) as of the Execution Time (with such date being used as
the determination date for purposes of this clause (ii)), the Company was not and is not an
Ineligible Issuer (as defined in Rule 405), without taking account of any determination by
the Commission pursuant to Rule 405 that it is not necessary that the Company be considered
an Ineligible Issuer.
(e) Each Issuer Free Writing Prospectus and the final term sheet prepared and filed
pursuant to Section 5(b) hereto does not include any information that conflicts with the
information contained in the Registration Statement, including any document incorporated
therein by reference and any prospectus supplement deemed to be a part thereof that has not
been superseded or modified. The foregoing sentence does not apply to statements in or
omissions from any Issuer Free Writing Prospectus based upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such information
furnished by or on behalf of any Underwriter consists of the information described as such
in Section 8 hereof.
(f) Since December 28, 2008, except as otherwise set forth in the Disclosure Package
and the Final Prospectus: (i) there has been no material adverse change in the condition,
financial or otherwise, prospects, earnings, business or properties of the Company and its
subsidiaries, including Piedmont Coca-Cola Bottling Partnership (“Piedmont”), considered as
one enterprise, whether or not arising in the ordinary course of business (a “Material
Adverse Change”), (ii) there have been no transactions entered into by the Company or any of
its subsidiaries, other than those in the ordinary course of business, which are material
with respect to the Company and its subsidiaries considered as one enterprise and (C) there
has been no dividend or distribution of any kind declared, paid or made by the Company on
any class of its capital stock, other than regular quarterly dividends declared, paid or
made in the ordinary course and consistent with past practices.
(g) Each of the Company and its consolidated subsidiaries has been duly organized or
incorporated and is validly existing as a partnership, corporation or limited liability
company in good standing under the laws of its respective jurisdiction of organization, with
full power and authority to own, lease and operate its properties and conduct its business
as described in the Disclosure Package and the Final Prospectus, and is duly qualified or
registered to do business as a foreign partnership, corporation or
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limited liability company and is in good standing under the laws of each jurisdiction
which requires such qualification or registration, except where the failure to so qualify or
register would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect (as hereinafter defined).
(h) All of the issued and outstanding shares of capital stock, partnership interests,
limited liability company interests or other ownership interests, as the case may be
(collectively, the “Ownership Interests”), of each consolidated subsidiary have been duly
and validly authorized and issued, and, with respect to each corporate subsidiary, are fully
paid and non-assessable, and, except as otherwise set forth in the Disclosure Package and
the Final Prospectus, all of the Ownership Interests of each of the consolidated
subsidiaries are owned by the Company either directly or through wholly owned subsidiaries
free and clear of any perfected security interest or any other security interests, claims,
liens or encumbrances.
(i) The Company’s authorized equity capitalization is as set forth in the Disclosure
Package and the Final Prospectus.
(j) There is no franchise, contract or other document of a character required to be
described in the Registration Statement or Final Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required.
(k) This Agreement has been duly authorized, executed and delivered by the Company.
(l) The Indenture has been duly authorized, executed and delivered by the Company and
(assuming due authorization and execution thereof by the Trustee) constitutes a valid and
binding agreement of the Company enforceable against the Company in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting creditors’ rights
generally; and the Securities have been duly authorized, and, when duly executed,
authenticated, issued and delivered against payment therefor, will be duly and validly
issued and outstanding, and will constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or affecting
creditors’ rights generally; and the Securities, when issued and delivered, will conform to
the description thereof contained in the Disclosure Package and the Final Prospectus.
(m) The Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the Disclosure
Package and the Final Prospectus, will not be an “investment company” as defined in the
Investment Company Act of 1940, as amended.
(n) No consent, approval, authorization, prior filing with or order of any court or
governmental agency or body is required in connection with the transactions
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contemplated herein, except such as have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner contemplated herein and in
the Disclosure Package and the Final Prospectus.
(o) Neither the issue and sale of the Securities nor the consummation of any other of
the transactions herein contemplated will in any material respects conflict with, or result
in a breach or violation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its subsidiaries pursuant to, (i) the charter or by-laws
of the Company or any of its subsidiaries, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or any of its subsidiaries is a party
or bound or to which its or their property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any of its subsidiaries
of any court, regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of its subsidiaries or any of its or
their properties.
(p) The consolidated financial statements and schedules of the Company and its
consolidated subsidiaries included or incorporated by reference in the Final Prospectus and
the Registration Statement present fairly in all material respects the financial condition,
results of operations and cash flows of the Company as of the dates and for the periods
indicated, comply as to form with the applicable accounting requirements of the Act and have
been prepared in conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as otherwise noted therein).
(q) PricewaterhouseCoopers LLP, who have certified certain financial statements of the
Company and its consolidated subsidiaries and delivered their report with respect to the
audited consolidated financial statements and schedules included in the Disclosure Package
and the Final Prospectus, are independent public accountants with respect to the Company
within the meaning of the Act and the applicable published rules and regulations thereunder.
(r) No action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its subsidiaries or its
or their property is pending or, to the best knowledge of the Company, threatened that
(i) could reasonably be expected to have a material adverse effect on the performance of
this Agreement or the consummation of any of the transactions contemplated hereby or
(ii) could reasonably be expected to have, individually or in the aggregate, a material
adverse effect on the condition, financial or otherwise, prospects, earnings, business or
properties of the Company and its subsidiaries, including Piedmont, considered as one
enterprise, whether or not arising in the ordinary course of business (a “Material Adverse
Effect”), except as set forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto).
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(s) Each of the Company and its subsidiaries owns or leases all material properties as
are reasonably necessary to the conduct of its operations as presently conducted.
(t) Neither the Company nor any subsidiary is in violation or default of (i) any
provision of its charter or bylaws, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound or to which its property
is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree of any
court, regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or such subsidiary or any of its properties,
as applicable, which violation or default described in clauses (i), (ii) or (iii) would
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(u) Except in any case in which the failure so to do would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect or except as set forth
in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any
supplement thereto), the Company has filed all foreign, federal, state and local tax returns
that are required to be filed or has requested extensions thereof and has paid all taxes
required to be paid by it and any other assessment, fine or penalty levied against it, to
the extent that any of the foregoing is due and payable, except for any such assessment,
fine or penalty that is currently being contested in good faith.
(v) No labor problem or dispute with the employees of the Company or any of its
subsidiaries exists or is threatened or imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its or its subsidiaries’
principal suppliers, contractors or customers, that in any such case referred to in this
paragraph (v) would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any supplement thereto).
(w) Each of the Company and its subsidiaries is insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as are reasonably
customary in the business in which it is engaged; all material policies of insurance and
fidelity or surety bonds insuring the Company or any of its subsidiaries or its business,
assets, employees, officers and directors are in full force and effect; the Company and its
subsidiaries are in compliance with the terms of such policies and instruments in all
material respects; and neither the Company nor any such subsidiary has any reason to believe
that it will not be able to renew its existing insurance coverage (considered in the
aggregate) as and when such coverage expires or to obtain similar coverage (considered in
the aggregate) from similar insurers as may be necessary to continue its business, except
for all matters described in this paragraph as set forth in or contemplated in the
Disclosure Package and the Final Prospectus and for other facts, events, circumstances and
costs that would not reasonably be expected to have a Material Adverse Effect (exclusive of
any amendment or supplement thereto).
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(x) No subsidiary of the Company is prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such subsidiary’s capital
stock, from repaying to the Company any loans or advances to such subsidiary from the
Company or from transferring any of such subsidiary’s property or assets to the Company or
any other subsidiary of the Company, except (i) for restrictions imposed by applicable law,
(ii) for restrictions that would not impair in any material respects the Company’s ability
to perform its obligations under the Securities and (iii) as described in or contemplated in
the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement
thereto).
(y) The Company and its subsidiaries possess all licenses, certificates, permits and
other authorizations issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, and neither the Company nor
any such subsidiary has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, if the subject of an
unfavorable decision, ruling or finding, would reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect, except as set forth in or contemplated in
the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(z) The Company and its subsidiaries are (i) in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances or wastes, pollutants or
contaminants (“Environmental Laws”), (ii) have received and are in compliance with all
permits, licenses or other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any disposal or release of
hazardous or toxic substances or wastes, pollutants or contaminants, except where such
non-compliance with Environmental Laws, such failure to receive required permits, licenses
or other approvals, or such liability would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect, except as set forth in or contemplated in
the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(aa) In the ordinary course of its business, the Company periodically reviews the
effect of Environmental Laws on the business, operations and properties of the Company and
its subsidiaries, in the course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with Environmental Laws, or any permit,
license or approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect, except as set forth in or
contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement
thereto).
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(bb) The Company and its subsidiaries own, possess, license or have other rights to use
all patents, patent applications, trade and service marks, trade and service xxxx
registrations, trade names, copyrights, licenses, inventions, trade secrets, technology,
know-how and other intellectual property (collectively, the “Intellectual Property”)
necessary in all material respects for the conduct of the Company’s business as now
conducted or as proposed in the Disclosure Package and the Final Prospectus to be conducted.
(cc) There is and has been no material failure on the part of the Company and, to the
knowledge of the Company, any of the Company’s directors or officers, in their capacities as
such, to comply with any provision of the Sarbanes Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith (the “Sarbanes Oxley Act”), including
Section 402 related to loans and Sections 302 and 906 related to certifications.
(dd) The Company maintains a system of “internal control over financial reporting,” as
defined in Rule 13a-15(f) of the Exchange Act. As of December 28, 2008, management of the
Company assessed the effectiveness of the Company’s internal control over financial
reporting based on the framework established in Internal Control—Integrated Framework issued
by the Committee of Sponsoring Organizations of the Xxxxxxxx Commission. Based on such
assessment, management of the Company determined that the Company’s internal control over
financial reporting was effective as of December 28, 2008. There have been no changes in
the Company’s internal control over financial reporting since such date that have materially
affected, or are reasonably likely to materially affect, the Company’s internal control over
financial reporting.
(ee) The Company maintains “disclosure controls and procedures,” as defined in Rule
13a-15(e) under the Exchange Act. Management of the Company most recently performed an
evaluation of the effectiveness of such disclosure controls and procedures as of the end of
the fiscal year ended December 28, 2008. Based upon that evaluation, management of the
Company concluded that the Company’s disclosure controls and procedures were effective for
the purpose of providing reasonable assurance that the information required to be disclosed
in the reports the Company files or submits under the Exchange Act (i) is recorded,
processed, summarized and reported within the time periods specified in the Commission’s
rules and forms and (ii) is accumulated and communicated to the Company’s management as
appropriate to allow timely decisions regarding required disclosures. The Company is not
aware of any reason why its disclosure controls and procedures are not effective as of the
date hereof.
(ff) The operations of the Company and its subsidiaries are and have been conducted at
all times in compliance in all material respects with applicable financial record keeping
and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970,
as amended, the money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any relating or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or
8
any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the
best knowledge of the Company, threatened.
(gg) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries, has (i) made any direct or indirect
unlawful payment to any foreign or domestic government official or employee from corporate
funds; (ii) violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (iii) made any bribe, rebate, payoff, influence payment, kickback or other
unlawful payment, except in each case as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(hh) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not
directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other person or
entity, for the purpose of financing the activities of any person, to the knowledge of the
Company, currently subject to any U.S. sanctions administered by OFAC.
(ii) The Company has not taken, directly or indirectly, any action designed to or which
has constituted or which might reasonably be expected to cause or result, under the Exchange
Act or otherwise, in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
Any certificate signed by any officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from the Company, at a purchase
price of 97.588% of the principal amount of the Securities set forth opposite such Underwriter’s
name in Schedule I hereto, with the terms of such Securities being as described in the Final
Prospectus.
3. Delivery and Payment. Delivery of and payment for the Securities shall be made at
the office of Xxxxx Xxxxx LLP at 9:00 A.M., New York city time, on the third Business Day following
the date of this Agreement or at such other date or place as shall be determined by agreement
between the Representatives and the Company, which date and time may be postponed by agreement
between the Representatives and the Company or as provided in Section 9 hereof (such date and time
of delivery and payment for the Securities being herein called the “Closing Date”). Delivery of
the Securities shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters
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through the Representatives of the purchase price thereof to or upon the order of the Company
by wire transfer payable in same-day funds to an account specified by the Company. Delivery of the
Securities shall be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
4. Offering by Underwriters. It is understood that the several Underwriters propose
to offer the Securities for sale to the public as set forth in the Disclosure Package.
5. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not
file any amendment of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) to the Base Prospectus or any Rule 462(b)
Registration Statement unless the Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement to which you reasonably
object. The Company will cause the Final Prospectus, properly completed, and any supplement
thereto to be filed in a form approved by the Representatives with the Commission pursuant
to the applicable paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to the Representatives of such timely filing. The Company
will promptly advise the Representatives (i) when the Final Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b) or
when any Rule 462(b) Registration Statement shall have been filed with the Commission,
(ii) when, prior to termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (iii) of any request by
the Commission or its staff for any amendment of the Registration Statement, or any
Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any
additional information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of any notice objecting to its use or the
institution or threatening of any proceeding for that purpose and (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the institution or threatening of any proceeding
for such purpose. The Company will use its best efforts to prevent the issuance of any such
stop order or the occurrence of any such suspension or objection to the use of the
Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain
as soon as possible the withdrawal of such stop order or relief from such occurrence or
objection, including, if necessary, by filing an amendment to the Registration Statement or
a new registration statement and using its best efforts to have such amendment or new
registration statement declared effective as soon as practicable.
(b) To prepare a final term sheet, containing solely a description of final terms of
the Securities and the offering thereof, in the form approved by you and attached as
Schedule III hereto and to file such term sheet pursuant to Rule 433(d) within the time
required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule
424(b), any event occurs as a result of which the Disclosure Package would include any
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untrue statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which they were made or
the circumstances then prevailing not misleading, the Company will (i) notify promptly the
Representatives so that any use of the Disclosure Package may cease until it is amended or
supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or
omission; and (iii) supply any amendment or supplement to you in such quantities as you may
reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be
delivered under the Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the circumstances
under which they were made at such time not misleading, or if it shall be necessary to amend
the Registration Statement, file a new registration statement or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder,
including in connection with use or delivery of the Final Prospectus, the Company promptly
will (i) notify the Representatives of any such event, (ii) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment
or supplement or new registration statement which will correct such statement or omission or
effect such compliance, (iii) use its best efforts to have any amendment to the Registration
Statement or new registration statement declared effective as soon as practicable in order
to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented
Final Prospectus to you in such quantities as you may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security
holders and to the Representatives an earnings statement or statements of the Company and
its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) The Company will furnish to the Representatives and counsel for the Underwriters,
without charge, copies of the signed Registration Statement (including exhibits thereto) and
to each other Underwriter a copy of the Registration Statement (without exhibits thereto)
and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the
Act (including in circumstances where such requirement may be satisfied pursuant to Rule
172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer
Free Writing Prospectus and any supplement thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing or other production of all documents
relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for
sale under the laws of such jurisdictions as the Representatives may designate
(provided, however, that in connection therewith, the Company will not be
required to (i) qualify generally to do business in any jurisdiction where it is not then so
qualified, (ii) subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any such jurisdiction where it is not then so subject) and
will
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maintain such qualifications in effect so long as required for the distribution of the
Securities.
(h) The Company agrees that, unless it has or shall have obtained the prior written
consent of the Representatives, and each Underwriter, severally and not jointly, agrees with
the Company that, unless it has or shall have obtained, as the case may be, the prior
written consent of the Company, it has not made and will not make any offer relating to the
Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the
Company with the Commission or retained by the Company under Rule 433, other than a free
writing prospectus containing the information contained in the final term sheet prepared and
filed pursuant to Section 5(b) hereto; provided that the prior written consent of the
parties hereto shall be deemed to have been given in respect of the Free Writing
Prospectuses included in Schedule II hereto. Any such free writing prospectus consented to
by the Representatives or the Company is hereinafter referred to as a “Permitted Free
Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case
may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y)
it has complied and will comply, as the case may be, with the requirements of Rules 164 and
433 applicable to any Permitted Free Writing Prospectus, including in respect of timely
filing with the Commission, legending and record keeping.
(i) Until the date immediately following the Closing Date, the Company will not,
without the prior written consent of the Representatives, offer, sell, contract to sell or
otherwise dispose of, directly or indirectly, or announce the offering of any debt
securities issued or guaranteed by the Company (other than the Securities).
(j) The Company will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(k) The Company agrees to pay the costs and expenses relating to the following matters:
(i) the preparation, printing or reproduction and filing with the Commission of the
Registration Statement (including financial statements and exhibits thereto), each
Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and
each amendment or supplement to any of them; (ii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and packaging) of
such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus
and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them,
as may, in each case, be reasonably requested for use in connection with the offering and
sale of the Securities; (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Securities, including any stamp or transfer taxes in
connection with the original issuance and sale of the Securities; (iv) the printing (or
reproduction) and delivery of this Agreement, any required blue sky memorandum and all other
agreements or documents printed (or reproduced) and delivered in connection with the
offering of the Securities; (v) any required registration or qualification of the
Securities for offer and sale under the
12
securities or blue sky laws of the several states (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to such registration
and qualification); (vi) any filings required to be made with the Financial Industry
Regulatory Authority, Inc. (including filing fees and the reasonable fees and expenses of
counsel for the Underwriters relating to such filings); (vii) the transportation and other
expenses incurred by or on behalf of Company representatives in connection with
presentations to prospective purchasers of the Securities; (viii) the fees and expenses of
the Company’s accountants and the fees and expenses of counsel (including local and special
counsel) for the Company; and (ix) all other costs and expenses incident to the performance
by the Company of its obligations hereunder. It is understood, however, that, except as
provided in this Section and Section 7 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on the resale of any
Securities by them, and any advertising costs connected with any offers they make.
6. Conditions to the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations hereunder and to the
following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and
within the time period required by Rule 424(b); the final term sheet contemplated by Section
5(b) hereto, and any other material required to be filed by the Company pursuant to Rule
433(d) under the Act, shall have been filed with the Commission within the applicable time
periods prescribed for such filings by Rule 433; and no stop order suspending the
effectiveness of the Registration Statement or any notice objecting to its use shall have
been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the written opinion of K&L
Gates LLP, counsel for the Company, dated the Closing Date and addressed to the
Underwriters, in the form attached hereto as Exhibit A.
(c) The Representatives shall have received from Xxxxx Xxxxx LLP , counsel for the
Underwriters, such opinion or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the Securities, the Indenture, the
Registration Statement, the Disclosure Package, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives may reasonably require,
and the Company shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the
Company, signed by the Chairman of the Board or the President and the principal financial or
accounting officer of the Company, dated the Closing Date, to the effect that the signers of
such certificate have carefully examined the Registration Statement, the
13
Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and
this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are
true and correct in all material respects on and as of the Closing Date with the
same effect as if made on the Closing Date and the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed or satisfied
at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement
or any notice objecting to its use has been issued and no proceedings for that
purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the
Disclosure Package and the Final Prospectus (exclusive of any supplement thereto),
there has been no Material Adverse Change, except as set forth in or contemplated in
the Disclosure Package and the Final Prospectus (exclusive of any supplement
thereto).
(e) The Representatives shall have received on the date hereof a letter, dated the date
hereof, in form and substance satisfactory to the Representatives, from
PricewaterhouseCoopers LLP, independent public accountants, containing statements and
information of the type ordinarily included in accountants’ “comfort letters” to
underwriters with respect to the financial statements and certain financial information
contained in or incorporated by reference into the Registration Statement and the Final
Prospectus. On the Closing Date, the Representatives shall have received from
PricewaterhouseCoopers LLP, independent public accountants, a letter dated the Closing Date
to the effect that they reaffirm the statements made in the letter specified in the first
and second sentences of this paragraph (e).
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information
is given in the Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any amendment or supplement thereto), there shall not have been
(i) any change or decrease specified in the letter or letters referred to in paragraph (e)
of this Section 6 or (ii) any change, or any development involving a prospective change, in
or affecting the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or contemplated in
the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement
thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in
the judgment of the Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as contemplated by
the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and
the Final Prospectus (exclusive of any amendment or supplement thereto).
14
(g) Subsequent to the Execution Time, there shall not have been any decrease in the
rating of any of the Company’s debt securities by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice
given of any intended or potential decrease in any such rating or of a possible change in
any such rating that does not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives
such further information, certificates and documents as the Representatives may reasonably
request in order to evidence or confirm the accuracy of the Company’s representations and
warranties set forth herein, the performance by the Company of its obligations hereunder to
be performed at or before the Closing Date, and the fulfillment of the conditions set forth
herein.
If any of the conditions specified in this Section 6 shall not have been fulfilled in all
material respects when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered at the office of
Xxxxx Xxxxx LLP, counsel for the Underwriters, at 00 Xxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
on the Closing Date.
7. Reimbursement of Underwriters’ Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10
hereof or because of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through Citigroup Global
Markets Inc. on demand for all out-of-pocket expenses (including reasonable fees and disbursements
of one Underwriters’ counsel and one local counsel in each jurisdiction) that shall have been
incurred by them in connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material fact contained
in the registration statement for the registration of the Securities as originally filed or
in any amendment thereof, or in the Base Prospectus, any Preliminary Prospectus or any other
preliminary prospectus supplement relating to the
15
Securities, the Final Prospectus, any Issuer Free Writing Prospectus or the information
contained in the final term sheet required to be prepared and filed pursuant to Section 5(b)
hereto, or in any amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable
in any such case to the extent that any such loss, claim, damage or liability arises out of
or is based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Underwriter may otherwise
have. The Company acknowledges that the statements set forth (i) in the last paragraph of
the cover page regarding delivery of the Securities and (ii) (A) the list of Underwriters
and their respective participation in the sale of the Securities, (B) the sentences related
to concessions and reallowances and (C) the paragraphs related to stabilization, syndicate
covering transactions and penalty bids under the heading “Underwriting” in any Preliminary
Prospectus and the Final Prospectus constitute the only information furnished in writing by
or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the
Final Prospectus or any Issuer Free Writing Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 8, notify the indemnifying
party in writing of the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to
the extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not,
in any event, relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice
at the indemnifying party’s expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying party shall not thereafter
be responsible for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below);
16
provided, however, that such counsel shall be reasonably satisfactory
to the indemnified party. Notwithstanding the indemnifying party’s election to appoint
counsel to represent the indemnified party in an action, the indemnified party shall have
the right to employ one separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, (iii) the indemnifying party shall
not have employed counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to employ separate counsel
at the expense of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8
is unavailable to or insufficient to hold harmless an indemnified party for any reason, the
Company and the Underwriters severally agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) that would otherwise be subject to indemnity pursuant
to paragraph (a) or (b) above (collectively “Losses”) to which the Company and one or more
of the Underwriters may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and by the Underwriters on the
other from the offering of the Securities; provided, however, that in no
such case shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities purchased by
such Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such Losses as well
as any other relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the offering (before deducting expenses)
received by it, and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the cover page of
the Final Prospectus. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact or the
17
omission or alleged omission to state a material fact relates to information provided
by the Company on the one hand or the Underwriters on the other, the intent of the parties
and their relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations referred to
above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such Underwriter, and each person
who controls the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the principal amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate principal amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate principal amount of the Securities, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Company. In the event of a default by
any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such
period, not exceeding five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Company prior to delivery of and payment
for the Securities, if at any time prior to such delivery and payment (i) there has been any
Material Adverse Change, (ii) trading in the Company’s Common Stock shall have been suspended by
the Commission or the Nasdaq Stock Market or trading in securities generally on the New York Stock
Exchange or the Nasdaq Stock Market shall have been suspended or limited or minimum prices shall
have been established on either of such exchanges, (iii) a banking moratorium shall have been
declared either by Federal or New York State authorities or
18
(iv) there shall have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war, or other calamity or crisis the effect of which on
financial markets is such as to make it, in judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities as contemplated by any
Preliminary Prospectus or the Final Prospectus (exclusive of any amendment or supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or its officers and of
the Underwriters set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or
any of the officers, directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 7
and 8 hereof shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to Citigroup
Global Markets Inc. General Counsel (fax no.: (000) 000-0000) and confirmed to the General
Counsel, Citigroup Global Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, and to
Wachovia Capital Markets, LLC, Attention: Transaction Management Department (fax no.: (000)
000-0000) and confirmed to the Transaction Management Department, Wachovia Capital Markets, LLC,
000 X. Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000-0000; or, if sent to the Company, will be mailed,
delivered or telecopied to the Company’s Treasurer (fax no.: 000.000.0000) and confirmed to it at
Coca-Cola Corporate Center, 0000 Xxxx-Xxxx Xxxxx, Xxxxxxxxx, XX 00000, attention of the Treasurer,
with a copy sent to the Company’s counsel, K&L Gates LLP, at Hearst Tower, 000 X. Xxxxx Xxxxxx,
00xx Xxxxx, Xxxxxxxxx, XX 00000.
13. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
14. No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale
of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the Underwriters and any affiliate through which it may be acting, on
the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the
Company and (c) the Company’s engagement of the Underwriters in connection with the offering and
the process leading up to the offering is as independent contractors and not in any other capacity.
Furthermore, the Company agrees that it is solely responsible for making its own judgments in
connection with the offering (irrespective of whether any of the Underwriters has advised or is
currently advising the Company on related or other matters). The Company agrees that it will not
claim that the Underwriters have rendered advisory services of any nature or respect, or owe an
agency, fiduciary or similar duty to the Company, in connection with such transaction or the
process leading thereto.
19
15. Integration. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriters, or any of them, with respect to
the subject matter hereof.
16. Applicable Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York.
17. Waiver of Jury Trial. The Company hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby.
18. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
19. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
20. Definitions. The terms that follow, when used in this Agreement, shall have the
meanings indicated.
“Act” shall mean the Securities Act of 1933, as amended and the rules and regulations
of the Commission promulgated thereunder.
“Base Prospectus” shall mean the base prospectus referred to in paragraph 1(a) above
contained in the Registration Statement at the Execution Time.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or
a day on which banking institutions or trust companies are authorized or obligated by law to
close in New York City or Charlotte, North Carolina.
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary
Prospectus used most recently prior to the Execution Time, (iii) the Issuer Free Writing
Prospectuses, if any, identified in Schedule II hereto, (iv) the final term sheet prepared
and filed pursuant to Section 5(b) hereto, if any, and (v) any other Free Writing Prospectus
that the parties hereto shall hereafter expressly agree in writing to treat as part of the
Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement, and any
post-effective amendment or amendments thereto and any Rule 462(b) Registration Statement
became or becomes effective.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
20
“Execution Time” shall mean the date and time that this Agreement is executed and
delivered by the parties hereto.
“Final Prospectus” shall mean the prospectus supplement relating to the Securities that
was first filed pursuant to Rule 424(b) after the Execution Time, together with the Base
Prospectus.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as
defined in Rule 433.
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Base
Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the
Final Prospectus, together with the Base Prospectus.
“Registration Statement” shall mean the registration statement referred to in
paragraph 1(a) above, including exhibits and financial statements and any prospectus
supplement relating to the Securities that is filed with the Commission pursuant to Rule
424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on
each Effective Date and, in the event any post-effective amendment thereto or any
Rule 462(b) Registration Statement becomes effective prior to the Closing Date, shall also
mean such registration statement as so amended or such Rule 462(b) Registration Statement,
as the case may be.
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”,
“Rule 430B,” “Rule 433” and “Rule 462” refer to such rules under the Act.
“Rule 462(b) Registration Statement” shall mean a registration statement and any
amendments thereto filed pursuant to Rule 462(b) relating to the offering covered by the
registration statement referred to in Section 1(a) hereof.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended and the
rules and regulations of the Commission promulgated thereunder.
21
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several Underwriters.
Very truly yours, COCA-COLA BOTTLING CO. CONSOLIDATED |
||||
By: | Xxxxxxxx X. Deal III | |||
Name: | Xxxxxxxx X. Deal III | |||
Title: | Vice President and Treasurer | |||
The foregoing Agreement is hereby
confirmed and accepted as of the date
first written above.
confirmed and accepted as of the date
first written above.
CITIGROUP GLOBAL MARKETS INC.
By:
|
Xxxxx Xxxxxxxxx
|
|||
Title: Managing Director | ||||
WACHOVIA CAPITAL MARKETS, LLC |
||||
By:
|
Xxxxxxx X. Xxxxxx
|
|||
Title: Vice President |
For themselves and the other several Underwriters, if any,
named in Schedule I to the foregoing Agreement
22
SCHEDULE I
Principal Amount | ||||
of Securities to | ||||
Underwriters | be Purchased | |||
Citigroup Global Markets Inc. |
$ | 44,000,000 | ||
Wachovia Capital Markets, LLC |
22,000,000 | |||
SunTrust Xxxxxxxx Xxxxxxxx, Inc. |
13,750,000 | |||
BB&T Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx, LLC |
13,750,000 | |||
Rabo Securities USA, Inc. |
11,000,000 | |||
X.X. Xxxxxx Securities Inc. |
5,500,000 | |||
Total |
$ | 110,000,000 | ||
S-I-1
SCHEDULE II
Schedule of Free Writing Prospectuses included in the Disclosure Package
None
S-II-1
SCHEDULE III
Coca-Cola Bottling Co. Consolidated
$110,000,000 7.00% Notes due 2019
$110,000,000 7.00% Notes due 2019
Pricing Term Sheet
Issuer:
|
Coca-Cola Bottling Co. Consolidated | |
Security:
|
7.00% Notes due 2019 | |
Size:
|
$110,000,000 | |
Maturity Date:
|
April 15, 2019 | |
Coupon:
|
7.00% | |
Interest Payment Dates:
|
April 15 and October 15, commencing October 15, 2009 | |
Price to Public:
|
98.238% | |
Benchmark Treasury:
|
UST 2.750% due February 15, 2019 | |
Benchmark Treasury Yield:
|
2.752% | |
Spread to Benchmark Treasury:
|
+ 449.8 bps | |
Yield:
|
7.25% | |
Make-Whole Call:
|
T + 50 bps | |
Expected Settlement Date:
|
April 7, 2009 | |
CUSIP:
|
191098 AJ 1 | |
Anticipated Ratings:
|
Baa2 (Stable) by Xxxxx’x Investors Service, Inc. BBB (Stable) by Standard & Poor’s Ratings Services |
|
Joint Book-Running Manager:
|
Citigroup Global Markets Inc. Wachovia Capital Markets, LLC SunTrust Xxxxxxxx Xxxxxxxx, Inc. |
|
Co-Managers:
|
BB&T Capital Markets X.X. Xxxxxx Securities Inc. Rabo Securities USA, Inc. |
|
Use of Proceeds:
|
Coca-Cola Bottling Co. Consolidated will use the net proceeds to repay at maturity a portion of the $119.3 million aggregate principal amount outstanding of its 6.375% Debentures due May 1, 2009. |
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering.
You may get these documents for free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx.
Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling Citigroup Global Markets Inc. toll free at
1-877-858-5407, Wachovia Capital Markets, LLC toll free at 0-000-000-0000 or SunTrust Xxxxxxxx
Xxxxxxxx, Inc. toll free at 0-000-000-0000.
S-II-1
Exhibit A
Opinion of K&L Gates LLP
[LETTERHEAD OF K&L GATES LLP]
April 7, 2009
Citigroup Global Markets Inc.
Wachovia Capital Markets, LLC
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
As Representatives of the several Underwriters
named in the Underwriting Agreement referred to herein
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Wachovia Capital Markets, LLC
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
As Representatives of the several Underwriters
named in the Underwriting Agreement referred to herein
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
RE: Coca-Cola Bottling Co. Consolidated
Ladies and Gentlemen:
We have acted as counsel to Coca-Cola Bottling Co. Consolidated, a Delaware corporation (the
“Company”), in connection with the issuance and sale by the Company of certain debt
securities, designated as the Company’s 7.00% Senior Notes due 2019 (the “Securities”), in
the aggregate principal amount of up to $110,000,000, pursuant to an Underwriting Agreement dated
April 2, 2009 (the “Underwriting Agreement”) among the Company and Citigroup Global Markets
Inc., Wachovia Capital Markets, LLC, and SunTrust Xxxxxxxx Xxxxxxxx, Inc., as representatives of
the several Underwriters named therein (the “Underwriters”). The Securities are being
issued under the terms of an Indenture dated as of July 20, 1994 between the Company and
NationsBank of Georgia, National Association, as trustee, as supplemented and restated by a
supplemental indenture dated March 3, 1995 between the Company and The Bank of New York Mellon
Trust Company, N.A., as successor trustee (the “Trustee”) (as so supplemented and restated, the
“Indenture”). We are delivering this opinion letter to you at the Company’s request
pursuant to Section 6(b) of the Underwriting Agreement.
Capitalized terms used but not defined in this opinion letter have the meanings given to them
in the Underwriting Agreement. References in this opinion letter to our knowledge or our attention
mean the actual knowledge of facts by any of the lawyers currently with this firm who have given
substantive attention to legal representation of the Company in matters relating directly to the
Underwriting Agreement, the Final Prospectus and the Disclosure Package or who otherwise have
primary responsibility for this firm’s representation of the Company.
We are familiar with the Registration Statement on Form S-3 (No. 333-155635), which was filed
with the Securities and Exchange Commission (the “Commission”) on November 24, 2008 under
the Securities Act of 1933 and the rules and regulations thereunder (the “1933 Act”), and
which was declared effective by the Commission on December 18, 2008, with the Base
Citigroup Global Markets Inc.
Wachovia Capital Markets, LLC
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
As Representatives of the several Underwriters
April 7, 2009
Page 2
Wachovia Capital Markets, LLC
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
As Representatives of the several Underwriters
April 7, 2009
Page 2
Prospectus, and with the prospectus supplement relating to the Securities and the offering
thereof that was first filed pursuant to Rule 424(b) under the 1933 Act after the execution of the
Underwriting Agreement. We are also familiar with the Disclosure Package, consisting of the Base
Prospectus, the Preliminary Prospectus used most recently prior to the Execution Time, any Issuer
Free Writing Prospectuses identified in Schedule II to the Underwriting Agreement, [and] the final
term sheet prepared and filed in accordance with Section 5(d) of the Underwriting Agreement[, and
any other Free Writing Prospectus that the parties to the Underwriting Agreement have expressly
agreed to treat as part of the Disclosure Package and that, for purposes of this opinion letter, is
identified on Schedule B hereto].
In connection with rendering the opinions set forth below, we have examined the Registration
Statement, the Final Prospectus, the Disclosure Package, the Underwriting Agreement, the Indenture,
the Company’s Certificate of Incorporation and By-laws, resolutions adopted by the Executive
Committee of the Company’s Board of Directors relating to the issuance and sale of the Securities,
the certificate of incorporation and bylaws or other organizational documents of the Company, the
subsidiaries of the Company listed on Schedule A hereto (the “Principal Subsidiaries”),
including Piedmont Coca-Cola Bottling Partnership (“Piedmont”), and the corporate minute
books, stock records or similar partnership or limited liability company records of the Principal
Subsidiaries, and we have made such other investigation as we have deemed appropriate. We have
examined and relied on certificates of and conversations with public officials and, as to certain
matters of fact that are material to our opinions, we have also examined and relied on certificates
of officers of the Company, copies of which have been furnished to you or your counsel, (the
“Fact Certificates”) and certificates, opinions and other documents delivered by or on
behalf of the Company pursuant to the Underwriting Agreement. We have not independently
established any of the facts so relied on.
We have also made the following assumptions: that each document submitted to us is accurate
and complete; that each such document that is an original is authentic; that each such
document that is a copy conforms to an authentic original; that all signatures (other than
signatures on behalf of the Company) on each such document are genuine; that the corporate minute
books and stock records, and similar partnership and limited liability company records, of the
Company and its Principal Subsidiaries through the date hereof presented to us for our examination
are true and complete records; the due authorization, execution and delivery of the Partnership
Agreement (as defined below) by all parties other than the Company, Coca-Cola Bottling Co.
Affiliated, Inc. and Coca-Cola Ventures, Inc.; that the Partnership Agreement remains in effect as
of the date of this opinion without having been amended, supplemented, superseded, terminated or
otherwise modified; that Piedmont has not been dissolved under the terms of the Partnership
Agreement or otherwise, whether by agreement of the partners of Piedmont, the expressed will of any
partner of Piedmont, the bankruptcy of Piedmont or any partner thereof, decree of a court of
competent jurisdiction to such effect, or the removal or withdrawal of any partner of Piedmont or
for any other reason; that no changes in the facts certified in the Fact Certificates have occurred
or will occur after the dates of the Fact
Citigroup Global Markets Inc.
Wachovia Capital Markets, LLC
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
As Representatives of the several Underwriters
April 7, 2009
Page 3
Wachovia Capital Markets, LLC
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
As Representatives of the several Underwriters
April 7, 2009
Page 3
Certificates; and that the terms of the Underwriting
Agreement and the Indenture have not been modified, supplemented or qualified by any other
agreements or understandings (written or oral) of the parties thereto (other than an officer’s
certificate of the Company pursuant to Sections 102 and 301 of the Indenture establishing the terms
of the Securities), or by any course of dealing or trade custom or usage, in any manner affecting
the opinions expressed herein. We have further assumed the legal capacity of natural persons, and
we have assumed that each party to the documents examined by us (other than the Company, Coca-Cola
Bottling Co. Affiliated, Inc. and Coca-Cola Ventures, Inc.) has the legal capacity and has
satisfied all legal requirements that are applicable to that party to the extent necessary to make
such documents enforceable against that party. We have not verified any of the foregoing
assumptions.
For purposes hereof, the “Partnership Agreement” shall mean that certain Partnership Agreement
of Piedmont (formerly known as Carolina Coca-Cola Bottling Partnership) dated as of July 2, 1993,
as amended by that certain First Amendment dated as of August 5, 1993, by that certain Second
Amendment dated as of August 12, 1993, by that certain Master Amendment to Partnership Agreement,
Management Agreement and Definition and Adjustment Agreement dated as of January 2, 2002, and by
that certain Fourth Amendment to Partnership Agreement dated as of March 28, 2003.
During the course of the preparation of the Registration Statement and the Final Prospectus,
we participated in conferences with representatives of the Company, including certain of its
executive, financial, and accounting officers, representatives of its independent public
accountants, and representatives of the Underwriters, including your counsel, at which conferences
the contents of the Registration Statement and the Final Prospectus and related matters were
discussed. Between the time of effectiveness of the Registration Statement and the time of
delivery of this opinion letter, we participated in further discussions with representatives of the
Company and representatives of the Underwriters, including your counsel, regarding the contents of
certain portions of the Registration Statement and the Final Prospectus and related
matters, and reviewed certificates of certain officers of the Company, and a letter addressed
to you from the Company’s independent public accountants. Other than as provided in paragraph 7
below, we have not independently verified any information, including financial, accounting, or
statistical information, included or incorporated by reference in the Registration Statement or the
Final Prospectus.
The opinions expressed in this opinion letter are limited to the law of the State of New York
and applicable federal securities laws of the United States, and, solely with respect to the
opinions in numbered paragraphs 1 through 6 below, the General Corporation Law of the State of
Delaware. We are not opining on, and we assume no responsibility for, the applicability to or
effect on any of the matters covered herein of any other laws, the laws of any other jurisdiction,
or the law of any county, municipality or other political subdivision or local governmental agency
or authority. Furthermore, we express no opinion concerning any matter respecting or affected by
any laws other than laws that a lawyer exercising customary professional diligence
Citigroup Global Markets Inc.
Wachovia Capital Markets, LLC
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
As Representatives of the several Underwriters
April 7, 2009
Page 4
Wachovia Capital Markets, LLC
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
As Representatives of the several Underwriters
April 7, 2009
Page 4
would reasonably
recognize as being directly applicable to the Company, the transactions contemplated by the
Underwriting Agreement or the Indenture.
Based on the foregoing, and subject to the foregoing and the additional qualifications and
other matters set forth below, it is our opinion that:
1. The Company is duly incorporated and validly exists as a corporation in good standing
under the laws of the State of Delaware. The Company is authorized to transact business and is in
good standing under the laws of the State of North Carolina. The Company has the corporate power
to own, lease, and operate its properties, and conduct its business, as described in the Disclosure
Package and the Final Prospectus.
2. Each of the Principal Subsidiaries is duly incorporated or duly formed and validly exists
as a corporation, partnership or limited liability company (as applicable) and, with respect to
each Principal Subsidiary that is a corporation, is in good standing under the laws of the
jurisdiction in which it is incorporated as set forth on Schedule A, and has the corporate,
partnership or limited liability company (as applicable) power and authority to own, lease and
operate its properties, and conduct its business, as described in the Disclosure Package and the
Final Prospectus.
3. All of the outstanding shares of capital stock, partnership interests, limited liability
company interests or other ownership interests, as the case may be (collectively, the
“Ownership Interests”), of each Principal Subsidiary have been duly and validly authorized
and issued and, with respect to each Principal Subsidiary that is a corporation, are fully paid and
non-assessable, and all outstanding Ownership Interests in the Principal Subsidiaries (other than
Piedmont) and the 77.326% partnership interest in Piedmont are owned of record and, to our
knowledge, beneficially by the Company either directly or through wholly-owned subsidiaries.
4. The Underwriting Agreement has been duly authorized, executed and delivered by the
Company.
5. The Indenture has been duly authorized, executed and delivered by the Company and
constitutes a valid and binding instrument enforceable against the Company in accordance with its
terms (subject to the effect of bankruptcy, insolvency, fraudulent transfer, reorganization,
receivership, moratorium and other laws affecting the rights and remedies of creditors, general
standards of commercial reasonableness, and to the exercise of judicial discretion in accordance
with general principles of equity (whether applied by a court of law or equity)); and the Indenture
has been duly qualified under the Trust Indenture Act.
6. The Securities have been duly authorized by the Company and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered to and paid for by
the Underwriters in accordance with the Underwriting Agreement, will constitute the valid and
binding obligations of the Company, entitled to the benefits of the Indenture and enforceable
Citigroup Global Markets Inc.
Wachovia Capital Markets, LLC
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
As Representatives of the several Underwriters
April 7, 2009
Page 5
Wachovia Capital Markets, LLC
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
As Representatives of the several Underwriters
April 7, 2009
Page 5
against the Company in accordance with their terms (subject to the effect of bankruptcy,
insolvency, fraudulent transfer, reorganization, receivership, moratorium and other laws affecting
the rights and remedies of creditors, general standards of commercial reasonableness, and to the
exercise of judicial discretion in accordance with general principles of equity (whether applied by
a court of law or equity)).
7. The statements set forth under the heading “Description of the Notes” in the Disclosure
Package and the Final Prospectus, insofar as such statements purport to summarize certain
provisions of the Securities and the Indenture, provide a fair summary of such provisions.
8. To our knowledge, there is no pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any arbitrator involving the Company or any of
the Principal Subsidiaries, of a character required to be disclosed in the Registration Statement
or the Final Prospectus which is not adequately disclosed as required.
9. The execution and delivery by the Company of the Underwriting Agreement, and the
performance by the Company of its obligations under the Underwriting Agreement and the Indenture
(including the issuance and sale of the Securities to the Underwriters in accordance with the
Indenture and the Underwriting Agreement) will not, as of the date hereof, require the Company to
obtain any authorization, approval, consent or order of, or make any prior filing with, any court
or governmental authority, other than as may be required under the 1933 Act and the regulations
under the 1933 Act, which have been obtained or made as required, and such as may be required under
the blue sky laws of any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters, as to which we express no opinion.
10. The execution and delivery by the Company of the Underwriting Agreement, and the
performance by the Company of its obligations under the Underwriting Agreement and the Indenture
(including the issuance and sale of the Securities to the Underwriters in accordance
with the Indenture and the Underwriting Agreement) will not, as of the date hereof, (a)
violate the Company’s Certificate of Incorporation or By-laws, the General Corporation Law of the
State of Delaware or any applicable statute, rule, or regulation of the United States or the State
of New York, or any existing obligation of the Company or any of the Principal Subsidiaries under
the express terms of any court order which, to our knowledge without investigation, names the
Company or any of the Principal Subsidiaries and is specifically directed to it or its property, or
(b) breach or constitute a default under the express terms of any agreement or instrument listed as
an exhibit to the Registration Statement, to the Company’s most recent Annual Report on Form 10-K
or to any Quarterly Report on Form 10-Q or Current Report on Form 8-K filed by the Company since
the time of filing of its most recent Annual Report on Form 10-K.
11. The Company is not, and solely as a result of the issuance and sale of the Securities and
the application of the net proceeds therefrom as described in the Disclosure Package and the
Citigroup Global Markets Inc.
Wachovia Capital Markets, LLC
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
As Representatives of the several Underwriters
April 7, 2009
Page 6
Wachovia Capital Markets, LLC
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
As Representatives of the several Underwriters
April 7, 2009
Page 6
Final
Prospectus will not be, required to register as an “investment company” under the Investment
Company Act of 1940.
12. The Registration Statement has become effective under the 1933 Act. Any required filing
of the Final Prospectus pursuant to Rule 424(b) has been made in accordance with Rule 424(b). To
our knowledge, based solely on a telephone conversation with a member of the staff of the
Commission, no stop order suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been initiated or threatened by
the Commission.
13. The Registration Statement and the Final Prospectus, as of their respective effective or
issue dates (other than the financial statements and related notes and schedules and other
financial, accounting, and statistical information included therein or omitted therefrom, as to
which we express no opinion), complied as to form in all material respects with the requirements of
the 1933 Act and the rules regulations of the Commission thereunder and the requirements of the
Trust Indenture Act and the rules and regulations of the Commission thereunder.
14. The Company’s Annual Report on Form 10-K for its fiscal year 2008 (the “2008 Form 10-K”)
and the documents that the Company has filed with the Commission after the filing of the 2008 Form
10-K that are incorporated by reference in the Final Prospectus (other than the financial
statements and other financial information contained therein as to which we express no opinion), at
the respective times at which such documents were filed with the Commission, complied as to form in
all material respects with the requirements of the Securities Exchange Act of 1934, and the rules
and regulations of the Commission thereunder.
The opinions expressed above are subject to the following qualifications, exceptions and
limitations in addition to those set forth above:
(a) Provisions of the Indenture and the Securities purporting to require a party thereto to
pay or reimburse attorneys’ fees incurred by another party, or to indemnify another
party therefor, may be limited by applicable statutes and decisions relating to the collection
and award of attorneys’ fees.
(b) We express no opinion as to any provisions of the Indenture and the Securities (i)
purporting to release, exculpate or indemnify a party as to such party’s liability for its own acts
or omissions, to the extent such acts or omissions involve such party’s negligence, recklessness,
willful misconduct or unlawful conduct; (ii) relating to indemnity and contribution for liabilities
under federal or state securities laws; (iii) relating to choice of law ; (iv) purporting to allow
any party to unreasonably interfere in the conduct of the business of another party; (v) the effect
of which is governed by the law of a jurisdiction other than the State of New York, the General
Corporation Law of the State of Delaware, or the applicable federal securities laws of the United
States; (vi) purporting to require any party to pay any amounts due to another party without a
reasonable accounting of the sums purported to be due; (vii) purporting to prohibit the
Citigroup Global Markets Inc.
Wachovia Capital Markets, LLC
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
As Representatives of the several Underwriters
April 7, 2009
Page 7
Wachovia Capital Markets, LLC
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
As Representatives of the several Underwriters
April 7, 2009
Page 7
assignment
of rights that may be assigned pursuant to applicable law regardless of an agreement not to assign
such rights; (viii) purporting to require that amendments to any agreement be in writing; (ix)
relating to powers of attorney, severability or set-off; (x) purporting to restrict access
exclusively to any particular courts; or (xi) providing that decisions by a party are conclusive or
may be made in its sole discretion.
(c) In rendering our opinions that the Company and the Principal Subsidiaries (other than
Piedmont) are “duly incorporated,” “duly formed,” “exist” and are in “good standing,” we have
relied upon certificates regarding the Company and the Principal Subsidiaries from (i) in the case
of the Principal Subsidiaries other than Piedmont and BYB Brands, Inc., the Delaware Secretary of
State, and (ii) in the case of BYB Brands, Inc., the North Carolina Secretary of State, in each
case dated March 30, 2009. Further, in our rendering our opinion that the Company is “authorized
to transact business” and is in “good standing” under the laws of the State of North Carolina, we
have relied upon a certificate regarding the Company from the North Carolina Secretary of State
dated April ___, 2009.
We are not opining as to factual matters, and the character of determinations involved in the
registration process is such that we are not passing upon and do not assume any responsibility for
the accuracy, completeness or fairness of the information included in the Registration Statement,
the Disclosure Package and the Final Prospectus. Other than as provided in paragraph number 7
above, we are not opining on the correctness and completeness of the information included in the
Registration Statement, the Disclosure Package and the Final Prospectus, and we have made no
independent investigation or verification of that information. We can advise you, however, subject
to the following paragraph, that on the basis of our review of the Registration Statement, the
Disclosure Package and the Final Prospectus and our participation in their preparation, nothing has
come to our attention that causes us to believe (i) that the Registration Statement, at its
Effective Date, contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein not misleading, (ii)
that the Disclosure Package, at the Execution Time,
contained any untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading, or (iii) that the
Final Prospectus, as of its date or at the date hereof, included or includes any untrue statement
of a material fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
We express no opinion with respect to, and the preceding paragraph does not address, the
financial statements and related notes and schedules, and other financial, accounting, and
statistical information, included in, incorporated by reference in, or omitted from the
Registration Statement or the Final Prospectus, or assessments of or reports on the effectiveness
of internal control over financial reporting contained therein. We also express no opinion with
respect to any matter relating to compliance with financial covenants or financial requirements.
Citigroup Global Markets Inc.
Wachovia Capital Markets, LLC
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
As Representatives of the several Underwriters
April 7, 2009
Page 8
Wachovia Capital Markets, LLC
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
As Representatives of the several Underwriters
April 7, 2009
Page 8
We are furnishing this opinion letter to you solely in connection with the issuance and sale
of the Securities. You may not rely on this opinion letter in any other connection, and it may not
be furnished to or relied upon by any other person for any purpose, without our specific prior
written consent.
The foregoing opinions are rendered as of the date of this letter. We assume no obligation to
update or supplement any of such opinions to reflect any changes of law or fact that may occur.
Yours truly,
K&L GATES LLP
SCHEDULE A
Principal Subsidiaries
Jurisdiction of | ||||
Incorporation or | ||||
Name | Type of Entity | Organization | ||
Coca-Cola Ventures, Inc.
|
Corporation | Delaware | ||
Piedmont Coca-Cola
Bottling Partnership
|
General partnership | Delaware | ||
CCBCC Operations, LLC
|
Limited liability company | Delaware | ||
BYB Brands, Inc.
|
Corporation | North Carolina |
Ex. A-1