Exhibit 10.1
MASTER AMENDMENT
TO PARTNERSHIP AGREEMENT, MANAGEMENT AGREEMENT
AND DEFINITION AND ADJUSTMENT AGREEMENT
THIS MASTER AMENDMENT (the "Amendment") with respect to the Partnership
Agreement, Management Agreement and Definition and Adjustment Agreement referred
to below is made and entered into as of the 2nd day of January, 2002 by and
among PIEDMONT COCA-COLA BOTTLING PARTNERSHIP (formerly known as Carolina
Coca-Cola Bottling Partnership), a Delaware general partnership (the
"Partnership"), CCBC OF WILMINGTON, INC., a Delaware corporation and
wholly-owned subsidiary of the Partnership ("CCBC Wilmington"), THE COCA-COLA
COMPANY, a Delaware corporation ("KO"), PIEDMONT PARTNERSHIP HOLDING COMPANY, a
Delaware corporation, indirect wholly-owned subsidiary of KO and successor in
interest to Carolina Coca-Cola Holding Company, The Coastal Coca-Cola Bottling
Company and Eastern Carolina Coca-Cola Bottling Company, Inc. ("KO Sub"),
COCA-COLA BOTTLING CO. CONSOLIDATED, a Delaware corporation and successor in
interest to Coca-Cola Bottling Co. Affiliated, Inc. ("CCBCC") and COCA-COLA
VENTURES, INC., a Delaware corporation, wholly-owned subsidiary of CCBCC and
successor in interest to Palmetto Bottling Company and Fayetteville Coca-Cola
Bottling Company ("CCBCC Sub").
Statement of Purpose
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KO Sub and CCBCC Sub are equal partners in the Partnership and are parties
to that certain Partnership Agreement, dated as of July 2, 1993 (as amended by
that certain First Amendment, dated August 5, 1993, and by that certain Second
Amendment, dated August 12, 1993, the "Partnership Agreement"). CCBCC serves as
the manager of the day-to-day operation of the business of the Partnership
pursuant to the terms and conditions of that certain Management Agreement, dated
as of July 2, 1993, by and among CCBCC, the Partnership, CCBC Wilmington, KO Sub
and CCBCC Sub (as amended by that certain First Amendment, dated as of January
1, 2001, the "Management Agreement").
Simultaneously with the execution and delivery of the Partnership Agreement
and the Management Agreement, the Partnership, CCBC Wilmington, CCBCC, CCBCC
Sub, KO and KO Sub entered into that certain Definition and Adjustment
Agreement, dated as of July 2, 1993 (the "DAA Agreement"), which contains
certain defined terms used in the Partnership Agreement and the Management
Agreement and provided for certain adjustments that were made in connection with
the initial capitalization of the Partnership.
Pursuant to that certain Securities Purchase Agreement, dated as of even
date herewith, between CCBCC Sub and KO Sub, CCBCC Sub will purchase from KO
Sub, and KO Sub will sell to CCBCC Sub, a 4.651% interest in the capital,
profits and losses of the Partnership, including, without limitation, 9.302% of
KO Sub's Capital Account, KO Sub's rights to allocations of net profit and net
loss and distributions of cash flow and capital items of the Partnership (the
"Purchase Transaction"), such that immediately after the consummation of the
Purchase Transaction, CCBCC Sub and KO Sub will have a 54.651% and 45.349%
respective interest in the capital, profits and losses of the Partnership. In
connection with the Purchase Transaction, the parties hereto desire to consent
to the Purchase Transaction and to amend the
Partnership Agreement, the Management Agreement and the DAA Agreement to,
among other things, (a) update certain addresses contained therein, (b) adjust
the relative ownership percentages of the Partners to give effect to the
Purchase Transaction as more fully described herein, (c) revise the liquidation
mechanics upon dissolution of the Partnership to reflect the current intention
of the parties and (d) amend the definition of "▇▇▇▇▇▇▇▇ Change of Control" to
address certain estate planning changes in the ▇▇▇▇▇▇▇▇ family's holdings.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Capitalized Terms. All capitalized terms used and not defined herein
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shall have the meanings given thereto in the Partnership Agreement.
2. Consent to Purchase Transaction. Each of the parties hereto hereby
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consents to the Purchase Transaction and each of the Partnership, KO Sub and
CCBCC Sub hereby waives any right to object to the Purchase Transaction under
Section 16.1(a) of the Partnership Agreement as a transfer of less than KO Sub's
entire Interest.
3. Amendments to Partnership Agreement.
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(a) Section 3.2 of the Partnership Agreement is hereby amended by
deleting the existing Section 3.2 in its entirety and inserting the following in
lieu thereof:
3.2. Principal Office. The principal office of the Partnership
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shall be located at ▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or at such other place as may be designated
from time to time by the Executive Committee.
(b) Section 6 of the Partnership Agreement is hereby amended by
deleting the existing Section 6 in its entirety and inserting the following in
lieu thereof:
Section 6. Partnership Interests. Notwithstanding any adjustment
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in the Partners' Capital Account balances, each Partner's
Interest in the Partnership shall be as follows:
KO Sub 45.349%
Ventures 54.651%
(c) Paragraphs (b) and (c) of Section 16.2 of the Partnership
Agreement are hereby amended by deleting the existing paragraphs (b) and (c) in
their entirety and inserting the following in lieu thereof:
(b) The Partner receiving the Sale Notice shall have an option
for a period of one hundred twenty (120) days from receipt of the
Sale Notice to agree to purchase from the Selling Party the
Interest proposed to be transferred at the same price (whether in
cash or the same type of non-cash consideration as is offered by
the Third
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Party) and upon the same terms and subject to the conditions
contained in the Sale Notice; provided, however, that if the
specified consideration is not cash and the Partner receiving the
Sale Notice does not agree with the Selling Partner's good faith
determination of the fair market value of such non-cash
consideration, then the Partner receiving the Sale Notice shall
require that the fair market value of such non-cash consideration
(and the resultant purchase price for the offered Interest) be
determined by an appraisal firm appropriate for the type of
specified non-cash consideration by giving written notice to the
Selling Partner to such effect prior to the thirtieth (30th) day
after that date that it received such Sale Notice. Such appraisal
firm shall be selected in the same manner provided for the
selection of investment banking firms in Section 18.3. In the
event an appraisal firm is retained to determine the purchase
price for the offered Interest, the option period described in
this Section 16.2(b) shall expire on the later of (i) the date
that is thirty (30) days after the date the opinion of the
appraisal firm regarding the value of the Interests is delivered
to the Partner receiving the Sale Notice and (ii) the date that
is one hundred twenty (120) days from receipt of the Sale Notice.
The costs and expenses of such appraisal firm shall be borne by
the Partnership.
(c) The Partner receiving the Sale Notice may exercise the
purchase option described in Section 16.2(b) by giving written
notice to the Selling Partner to such effect, prior to the
expiration of the option period described in Section 16.2(b).
Such written notice shall specify the date for the closing of the
purchase of such Interests which shall be at least ten (10) days,
but no more than thirty (30) days, after the date such Partner
gives such written notice. The closing of such sale shall occur
as provided in Section 19.3.
(e) Paragraph (d) of Section 16.2 of the Partnership Agreement is
hereby amended by deleting the words "thirty (30) day" contained therein.
(f) Section 20.3 of the Partnership Agreement is hereby amended by
deleting the existing Section 20.3 in its entirety and inserting the following
in lieu thereof:
20.3. Intentionally Deleted.
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(g) Section 20.4 of the Partnership Agreement is hereby amended by
deleting the existing Section 20.4 in its entirety and inserting the following
in lieu thereof:
20.4. Intentionally Deleted.
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(h) Section 20.5 of the Partnership Agreement is hereby amended by
deleting the existing Section 20.5 in its entirety and inserting the following
in lieu thereof:
20.5. Procedures on Liquidation. Upon the occurrence of a
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Dissolving Event, the Partnership shall continue solely for the
purposes of winding up its affairs in an orderly manner,
liquidating its assets and satisfying the claims of its creditors
and Partners, and the Executive Committee shall not take any
action that is inconsistent with, or not necessary to or
appropriate for, the winding up of the Partnership's business and
affairs. The Executive Committee shall be responsible for
overseeing the winding up and dissolution of the Partnership,
shall take full account of the Partnership's liabilities and the
Partnership's assets, shall cause the Partnership's assets to be
liquidated as promptly as is consistent with obtaining the fair
value thereof, subject to any tax or legal considerations and
shall cause the proceeds therefrom, to the extent sufficient
therefor, to be applied or distributed in the following order and
priority:
(a) to the payment of the debts and liabilities of the
Partnership and to the expenses of liquidation in the order of
priority as provided by law, and to the establishment of any
reserves which the Executive Committee deems necessary for any
contingent or unforeseen liabilities or obligations of the
Partnership; then to
(b) the repayment of any liabilities or debts, other than
Capital Accounts, of the Partnership to any of the Partners; then
to
(c) each Partner in proportion to and to the extent of its
positive Capital Account balances after the Capital Accounts of
the Partners have been adjusted for the allocation of net profits
and net loss under Section 9 and other adjustments as may be
required under Code regulation 1.704-1(b)(2)(iv); then to
(d) the Partners in proportion to their Interests in the
Partnership.
(i) Section 20.6 of the Partnership Agreement is hereby amended by
deleting the reference to "Sections 20.3 and 20.4" in the existing Section 20.6
and inserting a reference to "Section 20.5" in lieu thereof.
(j) Paragraph (b) of Section 25.2 of the Partnership Agreement is
hereby amended by deleting the existing paragraph (b) in its entirety and
inserting the following in lieu thereof:
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(b) If to Ventures:
Coca-Cola Bottling Co. Consolidated
Coca-Cola Corporate Center
▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ (28211-3481)
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
Bank of America Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
4. Amendments to Management Agreement.
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(a) Paragraph (a) of Section 15.01 of the Management Agreement
is hereby amended by deleting the existing paragraph (a) in its entirety and
inserting the following in lieu thereof:
(a) If to Partnership:
Coca-Cola Bottling Co. Consolidated
Coca-Cola Corporate Center
▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ (28211-3481)
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to the addresses listed in (b) below.
(b) Paragraph (c) of Section 15.01 of the Management Agreement
is hereby amended by deleting the existing paragraph (c) in its entirety and
inserting the following in lieu thereof:
(c) If to Manager or Ventures:
Coca-Cola Bottling Co. Consolidated
Coca-Cola Corporate Center
▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ (28211-3481)
▇.▇. ▇▇▇ ▇▇▇▇▇
▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
Bank of America Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
5. Amendments to DAA Agreement.
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(a) Section 1.1 of the DAA Agreement is hereby amended by
deleting the existing definition of "▇▇▇▇▇▇▇▇ Change of Control" in its entirety
and inserting the following in lieu thereof:
A "▇▇▇▇▇▇▇▇ Change of Control" shall be deemed to have
occurred if (i) J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇., the executors
and/or trustees under his will, J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, III,
and/or any family limited partnerships, limited liability
companies and/or corporations owned and controlled directly
or indirectly by such persons do not collectively own all
of the 712,796 shares of Class B Common Stock of CCBCC
owned by J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, , Jr. as of the date of the DAA
Agreement, or (ii) the trusts which are parties to that
certain Shareholder's Agreement dated as of December 13,
1988 among KO, J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇., J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
III and such trusts, together with any family limited
partnerships, limited liability companies and/or
corporations owned directly or indirectly by the trusts
and/or beneficiaries of such trusts, hold less than fifty
percent (50%) of the shares of Class B Common Stock of
CCBCC held by them, in the aggregate, as of January 27,
1989. For purposes of this definition, "own" means right to
control and not necessarily beneficial ownership.
(b) Section 7.8 of the DAA Agreement is hereby amended by
deleting the addresses for CCBCC, Ventures, Fayetteville and Palmetto set forth
in the existing Section 7.8 in their entirety and inserting the following in
lieu thereof:
If to CCBCC or Ventures to:
Coca-Cola Bottling Co. Consolidated
Coca-Cola Corporate Center
▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ (28211-3481)
▇.▇. ▇▇▇ ▇▇▇▇▇
▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
Bank of America Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
6. Effect of the Amendment. Except for the amendments contemplated
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hereby, the Partnership Agreement, the Management Agreement and the DAA
Agreement shall be and remain in full force and effect. The amendments granted
herein are specific and limited and shall not constitute a modification,
acceptance or waiver of any other provision of the Partnership Agreement, the
Management Agreement, the DAA Agreement or any other document or instrument
entered into in connection therewith or a further modification, acceptance or
waiver of the provisions set forth therein.
7. Captions. The captions and section numbers appearing in this
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Amendment are inserted only as a matter of convenience and in no way define,
limit, construe or otherwise describe the scope or intent of the sections of
this Amendment.
8. Binding Effect. This Amendment shall inure to the benefit of and
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be binding upon the parties hereto and their successors and permitted assigns.
9. Severability. If any one or more provisions of this Amendment
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shall be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired; provided, however, that in such case the
parties hereto agree to use their best efforts to achieve the purpose of the
invalid provision by a new legally valid provision.
10. Counterparts. This Amendment may be executed in separate
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counterparts, each of which when executed and delivered is an original but all
of which taken together constitute one and the same instrument.
11. Fax Transmission. A facsimile, telecopy or other reproduction of
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this Amendment may be executed by one or more parties hereto, and an executed
copy of this Amendment may be delivered by one or more parties hereto by
facsimile or similar instantaneously electronic transmission devise pursuant to
which the signature of or on behalf of such party can be seen, and such
execution and delivery shall be considered valid, binding and effective for all
purposes. At the request of any party hereto, all parties hereto agree to
execute an original of this Amendment as well as any facsimile, telecopy or
other reproduction hereof.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date and year first above written.
PIEDMONT COCA-COLA BOTTLING PARTNERSHIP
By: PIEDMONT PARTNERSHIP HOLDING COMPANY, its
General Partner
By:_______________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇
President
By: COCA-COLA VENTURES, INC., its General
Partner
By:_______________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
CCBC OF WILMINGTON, INC.
By:____________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
THE COCA-COLA COMPANY
By:____________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President and Chief
Financial Officer
PIEDMONT PARTNERSHIP HOLDING COMPANY
By:____________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇
President
[Signature Pages Continue]
COCA-COLA BOTTLING CO. CONSOLIDATED
By:____________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
COCA-COLA VENTURES, INC.
By:____________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President