EXHIBIT 1.1
THE COCA-COLA COMPANY
UNDERWRITING AGREEMENT
Atlanta, Georgia
To the Representatives named in Schedule I hereto of
the Underwriters named in Schedule II hereto
Dear Ladies and Gentlemen:
The Coca-Cola Company, a Delaware corporation (the "Company"), proposes
to sell to the underwriters named in Schedule II hereto (the "Underwriters"),
for whom you are acting as representatives (the "Representatives"), certain of
its debt securities ("Purchased Debt Securities") and/or warrants to purchase
certain of its debt securities ("Debt Warrants"), as identified and in an
aggregate principal amount indicated in Schedule I hereto. The Purchased Debt
Securities, the Debt Warrants and the debt securities subject to such Debt
Warrants ("Warrant Debt Securities") are sometimes collectively referred to
herein as the "Securities." The Purchased Debt Securities and the Warrant Debt
Securities are sometimes collectively referred to herein as the "Debt
Securities." The Purchased Debt Securities and the Debt Warrants are sometimes
collectively referred to herein as the "Purchased Securities." The Debt
Securities will be issued under an amended and restated indenture dated as of
April 26, 1988, between the Company and Bankers Trust Company, as trustee (the
"Trustee"), as amended by a first supplemental indenture dated as of February
24, 1992 (as such indenture may be further amended from time to time, the
"Indenture"). The Debt Warrants will be issued under a debt warrant agreement
(the "Debt Warrant Agreement") to be entered into between the Company and a bank
or trust company, as debt warrant agent, specified in Schedule I hereto if Debt
Warrants are being issued. If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives," as used herein, shall each be deemed to
refer to such firm or firms.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in paragraph (c)
hereof.
(a) If the offering of the Securities is a Delayed
Offering (as specified in Schedule I hereto), paragraph (i) below is
applicable and, if the offering of the Securities is a Non-Delayed
Offering (as so specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for the
use of Form S-3 under the Securities Act of 1933, as amended
(the "Act") and has filed with the Securities and Exchange
Commission (the "Commission") one or more registration
statements (the file number(s) of which is set forth in
Schedule I hereto, one or both such registration statements
being hereinafter referred to as the "Registration Statement")
on such Form, including a basic prospectus, for registration
under the Act of the offering and sale of the Securities. The
Company may have filed one or more amendments thereto, and may
have used a Preliminary Final Prospectus, each of which has
previously been furnished to you. Such Registration Statement,
as so amended, has become effective. The offering of the
Securities is a Delayed Offering and, accordingly, it is not
necessary that any further information with respect to the
Securities and the offering thereof required by the Act and
the rules thereunder to be included in the Final Prospectus
have been included in an amendment to such Registration
Statement prior to the Effective Date. The Company will next
file with the Commission pursuant to Rules 415 and 424(b)(2)
or (5) a final supplement to the form of prospectus included
in such Registration Statement relating to the Securities and
the offering thereof. As filed, such final prospectus
supplement shall include all required information with respect
to the Securities and the offering thereof 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 Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
(ii) The Company meets the requirements for the
use of Form S-3 under the Act and has filed with the
Commission the Registration Statement (the file number(s) of
which is set forth in Schedule I hereto) on such Form,
including a basic prospectus, for registration under the Act
of the offering and sale of the Securities. The Company may
have filed one or more amendments thereto, including a
Preliminary Final Prospectus, each of which has previously
been furnished to you. The Company will next file with the
Commission either (x) a final prospectus supplement relating
to the Securities in accordance with Rules 430A and 424(b)(1)
or (4), or (y) prior to the effectiveness of such registration
statement, an amendment to such Registration Statement,
including the form of final prospectus supplement. In the case
of clause (x), the Company has included in such Registration
Statement, as amended at the Effective Date, all information
(other than Rule 430A Information) required by the Act and the
rules thereunder to be included in the Final Prospectus with
respect to the Securities and the offering thereof. As filed,
such final prospectus supplement or such amendment and form of
final prospectus supplement shall contain all Rule 430A
Information, together with all other such required
information, with respect to the Securities and the offering
thereof and, except to the extent the Representatives shall
agree in writing to a modification, shall be in all
substantive respects in the form
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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 Basic Prospectus and any Preliminary
Final Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did
or will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act and the Securities
Exchange Act of 1934 (the "Exchange Act") and the respective rules
thereunder; on the Effective Date, the Registration Statement did not
or 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 requirements of the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act") and the rules thereunder;
and, on the Effective Date, the Final Prospectus, if not filed pursuant
to Rule 424(b), did not or will not, 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, warranties or
agreements 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 use in
connection with the preparation of the Registration Statement or the
Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective Date" shall
mean each date that the Registration Statement, any post-effective
amendment or amendments thereto and any 462(b) Registration Statement
became or becomes effective. "Execution Time" shall mean the date and
time that this Agreement is executed and delivered by the parties
hereto. "Basic Prospectus" shall mean the prospectus referred to in
paragraph (a) above contained in the Registration Statement at the
Effective Date including any Preliminary Final Prospectus. "Preliminary
Final Prospectus" shall mean any preliminary prospectus supplement to
the Basic Prospectus which describes the Securities and the offering
thereof and is used prior to filing of the Final Prospectus. "Final
Prospectus" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b) after the
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Execution Time, together with the Basic Prospectus or, if, in the case
of a Non-Delayed Offering, no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to the
Securities, including the Basic Prospectus, included in the
Registration Statement at the Effective Date. "Registration Statement"
shall mean the registration statement referred to in paragraph (a)
above, including exhibits and financial statements, as amended at the
Execution Time and, in the event any post-effective amendment thereto
or any Rule 462(b) Registration Statement becomes effective prior to
the Closing Date (as hereinafter defined), shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as
provided by Rule 430A. "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 paragraph (a) above. "Rule 415", "Rule 424",
"Rule 430A", "Rule 462(b)" and "Regulation S-K" refers to such rules or
regulation under the Act. "Rule 430A Information" means information
with respect to the Securities and the offering thereof permitted to be
omitted from the Registration Statement when it becomes effective
pursuant to Rule 430A. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final 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 Basic
Prospectus, any Preliminary Final 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 Basic Prospectus, any Preliminary Final 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 Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference. A "Non-Delayed
Offering" shall mean an offering of securities which is intended to
commence promptly after the effective date of a registration statement,
with the result that, pursuant to Rules 415 and 430A, all information
(other than Rule 430A Information) with respect to the securities so
offered must be included in such registration statement at the
effective date thereof. A "Delayed Offering" shall mean an offering of
securities pursuant to Rule 415 which does not commence promptly after
the effective date of a registration statement, with the result that
only information required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof with respect to
the securities so offered. Whether the offering of the Securities is a
Non-Delayed Offering or a Delayed Offering shall be set forth in
Schedule I hereto.
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
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from the Company, at the purchase price set forth in Schedule I hereto, the
principal amount of the Purchased Securities set forth opposite such
Underwriter's name in Schedule II hereto, except that, if Schedule I hereto
provides for the sale of Purchased Securities pursuant to delayed delivery
arrangements, the respective principal amounts of Purchased Securities to be
purchased by the Underwriters shall be as set forth in Schedule II hereto less
the respective amounts of Contract Securities determined as provided below.
Purchased Securities to be purchased by the Underwriters are herein sometimes
called the "Underwriters' Securities" and Purchased Securities to be purchased
pursuant to Delayed Delivery Contracts as hereinafter provided are herein called
"Contract Securities."
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Purchased Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery Contracts"), substantially in the
form of Schedule III hereto but with such changes therein as the Company may
authorize or approve. The Underwriters will endeavor to make such arrangements
and, as compensation therefor, the Company will pay to the Representatives, for
the account of the Underwriters, on the Closing Date, as a fee, the percentage
set forth in Schedule I hereto of the principal amount of the Purchased
Securities for which Delayed Delivery Contracts are made. Delayed Delivery
Contracts are to be with institutional investors, including commercial and
savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. The Company will enter into Delayed
Delivery Contracts in all cases where sales of Contract Securities arranged by
the Underwriters have been approved by the Company but, except as the Company
may otherwise agree, each such Delayed Delivery Contract must be for not less
than the minimum principal amount set forth in Schedule I hereto and the
aggregate principal amount of Contract Securities may not exceed the maximum
aggregate principal amount set forth in Schedule I hereto. The Underwriters will
not have any responsibility in respect of the validity or performance of Delayed
Delivery Contracts. The principal amount of Purchased Securities to be purchased
by each Underwriter as set forth in Schedule II hereto shall be reduced by an
amount which shall bear the same proportion to the total principal amount of
Contract Securities as the principal amount of Purchased Securities set forth
opposite the name of such Underwriter bears to the aggregate principal amount
set forth in Schedule II hereto, except to the extent that you determine that
such reduction shall be otherwise than in such proportion and so advise the
Company in writing; provided, however, that the total principal amount of
Purchased Securities to be purchased by all Underwriters shall be the aggregate
principal amount set forth in Schedule II hereto less the aggregate principal
amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made at the office, on the date and at the
time specified in Schedule I hereto (or such later date not later than three
business days after such specified date as the Representatives shall designate),
which date and time may be postponed by agreement between the Representatives
and the Company or as provided in Section 8 hereof (such date and time of
delivery and payment for the Underwriters' Securities being herein called the
"Closing Date"). Delivery of the Underwriters' Securities shall be made to the
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Representatives for the respective accounts of the several underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to the Company by wire transfer payable in immediately available
federal funds. Delivery of the Underwriters' Securities shall be made through
the facilities of The Depository Trust Company unless the Representatives shall
otherwise instruct.
4. Agreements.
(a) The Company agrees with the several Underwriters that:
(i) 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 Final Prospectus) to the Basic Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished the
Representatives a copy for their review prior to filing and will not
file any such proposed amendment, supplement or Rule 462(b)
Registration Statement to which they reasonably object. Subject to the
foregoing sentence, the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed 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 (1) when the Final Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant
to Rule 424(b) or when any Rule 462(b) Registration Statement shall
have been filed with the Commission, (2) when, prior to termination of
the offering of the Securities, any amendment to the Registration
Statement shall have been filed or become effective, (3) of any request
by the Commission for any amendment of the Registration Statement, or
any Rule 462(b) Registration Statement, or supplement to the Final
Prospectus or for any additional information, (4) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (5) 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 and, if
issued, to obtain as soon as possible the withdrawal thereof.
(ii) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, 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 not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will prepare and file
with the Commission, subject to the second sentence of paragraph (a)(i)
of this Section
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4, an amendment or supplement which will correct such statement or
omission or effect such compliance.
(iii) As soon as practicable, the Company will make
generally available to its security holders and to the Representatives
an earning statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(iv) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many copies of any Preliminary Final Prospectus and the
Final 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.
(v) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and
will arrange for the determination of the legality of the Securities
for purchase by institutional investors.
(vi) Until the business day following the Closing Date,
the Company will not, without the consent of the Representatives,
offer, sell or contract to sell, or announce the offering of, any debt
securities covered by the Registration Statement or any other
registration statement filed under the Act.
(b) If the Securities will be offered and sold in jurisdictions
outside the United States, each Underwriter further agrees and
hereby represents that:
(i) it has not offered or sold, and, prior to the
expiration of the period of six months from the Closing Date, will not
offer or sell any Securities to persons in the United Kingdom, except
to those persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments, as principal or agent,
for the purposes of their businesses or otherwise in circumstances
which have not resulted and will not result in an offer to the public
in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995, as amended;
(ii) it has complied and will comply with all applicable
provisions of the Financial Services ▇▇▇ ▇▇▇▇, with respect to anything
done by it in relation to the Securities in, from or otherwise
involving the United Kingdom;
(iii) it has only issued or passed on and will only issue
or pass on in the United Kingdom any document received by it in
connection with the issue of the Securities to a person who is of a
kind described in Article 11(3) of the Financial
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Services ▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions) Order 1996,
as amended, or is a person to whom the document may otherwise lawfully
be issued or passed on;
(iv) it will not offer or sell any Securities directly or
indirectly in Japan or to, or for the benefit of any Japanese person or
to others, for re-offering or re-sale directly or indirectly in Japan
or to any Japanese person except under circumstances which will result
in compliance with all applicable laws, regulations and guidelines
promulgated by the relevant governmental and regulatory authorities in
effect at the relevant time. For purposes of this paragraph, "Japanese
person" means any person resident in Japan, including any corporation
or other entity organized under the laws of Japan;
(v) it is aware of the fact that no German selling
prospectus (Verkaufsprospekt) has been or will be published in respect
of the sale of the Securities and that it will comply with the
Securities Selling Prospectus Act (the "SSPA") of the Federal Republic
of Germany (Wertpapier-Verkaufsprospektgesetz). In particular, each
underwriter has undertaken not to engage in public offering
(offentliche Anbieten) in the Federal Republic of Germany with respect
to any Securities otherwise than in accordance with the SSPA and any
other act replacing or supplementing the SSPA and all the other
applicable laws and regulations;
(vi) the Securities are being issued and sold outside the
Republic of France and that, in connection with their initial
distribution, it has not offered or sold and will not offer or sell,
directly or indirectly, any Securities to the public in the Republic of
France, and that it has not distributed and will not distribute or
cause to be distributed to the public in the Republic of France the
Final Prospectus, the Basic Prospectus or any other offering material
relating to the Securities; and
(vii) it and each of its affiliates has not offered or
sold, and it will not offer or sell, the Securities by means of any
document to persons in Hong Kong other than persons whose ordinary
business it is to buy or sell shares or debentures, whether as
principal or agent, or otherwise in circumstances which do not
constitute an offer to the public within the meaning of the Hong Kong
Companies Ordinance (Chapter 32 of the Laws of Hong Kong).
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' 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:
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(a) The Registration Statement, other than any 462(b)
Registration Statement, has become effective prior to the Execution
Time; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 PM,
Washington, D.C. time, on the date of the Execution Time; if filing of
the Final Prospectus, or any supplement thereto, is required pursuant
to Rule 424(b), the Final Prospectus, and any such supplement, shall
have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement 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 opinion of King & Spalding, counsel for the
Company, or such other counsel as shall be reasonably acceptable to the
Representatives, dated the Closing Date, to the effect that:
(i) The Company is a corporation validly
existing and in good standing under the laws of the State of
Delaware, with full corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and, to such counsel's knowledge, is duly
qualified to do business as a foreign corporation and is in
good standing under the laws of each jurisdiction which
requires such qualification and wherein a failure to so
qualify or be in good standing would have a material adverse
effect upon the operations or financial position of the
Company;
(ii) The Company's authorized equity
capitalization is as set forth in the Final Prospectus; and
the Securities being issued and sold conform in all material
respects to the description thereof contained in the Final
Prospectus;
(iii) This Agreement, the Indenture and any Debt
Warrant Agreement have been duly authorized, executed and
delivered by the Company, the Indenture has been duly
qualified under the Trust Indenture Act, and the Indenture and
any Debt Warrant Agreement each constitutes a legal, valid and
binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general
principles of equity); and the Securities have been duly
authorized and, when executed and authenticated in accordance
with the provisions of the Indenture, in the case of the Debt
Securities, and the Debt Warrant Agreement, in the case of the
Debt Warrants, and delivered to and paid for by the
Underwriters pursuant to this Agreement, in the case of the
Underwriters' Securities, or by the purchasers thereof
pursuant to Delayed Delivery Contracts, in the case of any
Contract Securities, will constitute
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legal, valid and binding obligations of the Company entitled
to the benefits of the Indenture, in the case of the Debt
Securities, and the Debt Warrant Agreement, in the case of the
Debt Warrants (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time
to time in effect and to general principles of equity);
(iv) (a) The Registration Statement has become
effective under the Act; any required filing of the Basic
Prospectus, any Preliminary Final Prospectus and the Final
Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time period
required by Rule 424(b); (b) to the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose
have been instituted or threatened, and the Registration
Statement and the Final Prospectus (other than the financial
statements and other financial and statistical information
contained therein and the Statement of Eligibility of the
Trustee as to which such counsel need express no opinion)
comply as to form in all material respects with the applicable
requirements of the Act and the Exchange Act and the
respective rules thereunder; and (c) such counsel has no
reason to believe that at the Effective Date the Registration
Statement contained any untrue statement of a material fact or
omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Final Prospectus as of its date and on
the Closing Date included or includes any untrue statement of
a material fact or omitted or omits to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(v) No consent, approval or authorization of any
governmental agency or body is required for the issuance and
sale of the Securities, 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 Purchased Securities by the Underwriters
in the manner contemplated by the Final Prospectus;
(vi) Neither the issue and sale of the
Securities, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the
terms hereof or of any Delayed Delivery Contracts will
conflict with, result in a breach of, or constitute a default
under the certificate of incorporation or by-laws of the
Company or, to such counsel's knowledge, the terms of any
indenture or other agreement or instrument filed or
incorporated by reference as an exhibit to the Registration
Statement or to any document filed under the Exchange Act and
incorporated into the Registration Statement, or any order or
regulation known to such counsel to be applicable to the
Company or any
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of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries; and
(vii) To such counsel's knowledge, no holders of
securities of the Company have rights to the registration of
such securities under the Registration Statement.
In rendering such opinion, such counsel may state that in
clause (iii) with respect to the validity and enforceability of the
Indenture, any Debt Warrant Agreement and the Securities, and in clause
(v) and in clause (vi) with respect to any statute, rule, regulation or
order of any governmental agency, body or court and the power and
authority of the Company to authorize, issue and sell the Securities,
such counsel has assumed that under the laws of any country in whose
currency any Securities are denominated, if other than in U.S. dollars,
that no consent, approval, authorization or order of, or filing with,
any governmental agency, body or court is required for the consummation
of the transactions contemplated hereunder in connection with the
issuance and sale of the Securities and compliance with the terms and
provisions thereof will not result in any breach or violation of any of
the terms and provisions in any statute, rule, regulation or order of
any governmental agency or body or any court. Such counsel may note
that (a) a New York statute provides that with respect to a foreign
currency obligation a court of the State of New York shall render a
judgment or decree in such foreign currency and such judgment or decree
shall be converted into currency of the United States at the rate of
exchange prevailing on the date of entry of such judgment and (b) with
respect to a foreign currency obligation a United States court in New
York may award judgment in United States dollars, provided that such
counsel expresses no opinion as to the rate of exchange such court
would apply. Further, in rendering such opinion, such counsel may rely
(A) as to matters involving the application of laws of any jurisdiction
other than the State of Georgia, the State of New York or the United
States, or the Delaware General Corporation Law, to the extent deemed
proper and specified in such opinion, upon the opinion of other counsel
of good standing believed to be reliable and who are satisfactory to
counsel for the Underwriters and (B) as to matters of fact, to the
extent deemed proper, on certificates of responsible officers of the
Company and public officials. References to the Final Prospectus in
this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇▇ &
Bird LLP, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the
Securities, the Indenture, any Debt Warrant Agreement, any Delayed
Delivery Contracts, the Registration Statement, 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 may reasonably request
for the purpose of enabling them to pass upon such matters.
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(d) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the Chairman of
the Board or the President or any Executive or Senior Vice 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 Final
Prospectus, any supplement to the Final Prospectus 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 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 Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(e) At the Closing Date, Ernst & Young shall have
furnished to the Representatives a letter or letters (which may refer
to letters previously delivered to one or more of the Representatives),
dated as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of the Act and the respective applicable published
rules and regulations thereunder and stating in effect that:
(i) In their opinion the audited financial
statements and financial statement schedules included or
incorporated in the Registration Statement and the Final
Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published
rules and regulations;
(ii) On the basis of a reading of the latest
unaudited condensed consolidated financial statements made
available by the Company and its subsidiaries; carrying out
certain procedures specified by the American
-12-
Institute of Certified Public Accountants for a review of
interim financial information as described in Statement on
Auditing Standards No. 71 (but not an audit in accordance with
generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of
the meetings of the share owners and the board of directors of
the Company; and inquiries of certain officials of the Company
who have responsibility for financial and accounting matters
of the Company and its subsidiaries as to transactions and
events subsequent to the date of the most recent audited
financial statements in or incorporated in the Final
Prospectus, nothing came to their attention which caused them
to believe that:
(1) the amounts included in the
unaudited "Income Statement Information", if any,
included in the Registration Statement and the Final
Prospectus do not agree with the amounts set forth in
the unaudited condensed consolidated financial
statements for the same periods or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus; and
the amounts in the "Selected Financial Data" included
or incorporated in the Registration Statement and the
Final Prospectus do not agree with the corresponding
amounts in the unaudited or audited financial
statements from which such amounts were derived;
(2) any unaudited condensed
consolidated financial statements included or
incorporated in the Registration Statement and the
Final Prospectus do not comply in form in all
material respects with applicable accounting
requirements and with the published rules and
regulations of the Commission with respect to
financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited condensed consolidated
financial statements are not in conformity with
generally accepted accounting principles applied on a
basis substantially consistent with that of the
audited financial statements included or incorporated
in the Registration Statement and the Final
Prospectus; or
(3) with respect to the period
subsequent to the date of the most recent financial
statements (other than any capsule information),
audited or unaudited, included or incorporated in the
Registration Statement and the Final Prospectus,
there were any changes, at a specified date not more
than five business days prior to the date of the
letter, in the long-term debt of the Company and its
subsidiaries (exclusive of changes due to foreign
currency exchange rates) or capital stock of the
Company (other than
-13-
issuances of capital stock upon exercise of stock
options, stock swaps and stock appreciation rights
which were outstanding on the date of the latest
consolidated balance sheet included or incorporated
in the Registration Statement and the Final
Prospectus) or decreases in the share-owners' equity
of the Company as compared with the amounts shown on
the most recent consolidated balance sheet included
or incorporated in the Registration Statement and the
Final Prospectus, or for the period from the date of
the most recent financial statements included or
incorporated in the Registration Statement and the
Final Prospectus to such specified date there were
any decreases, as compared with the corresponding
period in the preceding year, in net operating
revenues of the Company and its subsidiaries, except
in all instances for changes or decreases that the
Registration Statement discloses have occurred or may
occur or as set forth in such letter, in which case
the letter shall be accompanied by an explanation by
the Company as to the significance thereof unless
said explanation is not deemed necessary by the
Representatives; and
(iii) On the basis of performing certain other
procedures, as determined and specified by the Underwriters,
relating to certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting
records of and subject to the internal controls of the
accounting systems of the Company and its subsidiaries)
included or incorporated by reference in the Registration
Statement and the Final Prospectus that such information
agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
(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 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 5 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries 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 the
delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto).
-14-
(g) Subsequent to the Execution Time, there shall not
have been any decrease in the ratings of any of the Company's debt
securities by ▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's
Corporation.
(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.
(i) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities arranged by
the Underwriters have been approved by the Company.
(j) The Representatives shall have received from counsel,
satisfactory to the Representatives, such opinion or opinions, dated
the Closing Date, with respect to compliance with the laws of any
country, other than the United States, in whose currency Debt
Securities or Debt Warrants are denominated, the validity of the
Securities, the Prospectus and other related matters as they may
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.
(k) If indicated in Schedule I hereto as being applicable
to the offering of any Securities, the Representatives shall have
received an opinion from tax counsel for the Company, satisfactory to
the Representatives and dated the Closing Date, confirming their
opinion as to United States tax matters set forth in the Final
Prospectus.
If any of the conditions specified in this Section 5 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 its counsel, this Agreement and all
obligations of the Underwriters hereunder may be cancelled 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.
6. 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 5 hereof is not satisfied,
because of any termination pursuant to Section 9 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 upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
-15-
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless 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 Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, 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 (i) 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 use in connection
with the preparation thereof, and (ii) such indemnity with respect to the Basic
Prospectus or any Preliminary Final Prospectus shall not inure to the benefit of
any Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the
Securities which are the subject thereof if such person did not receive a copy
of the Final Prospectus (or the Final Prospectus as supplemented) excluding
documents incorporated therein by reference at or prior to the confirmation of
the sale of such Securities to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in the Basic Prospectus or any Preliminary Final Prospectus was
corrected in the Final Prospectus (or the Final Prospectus as supplemented).
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 use in the preparation of 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 in the last paragraph of the cover page regarding
delivery of the Securities and, under the heading "Underwriting" or "Plan of
Distribution", (i) the list of Underwriters and their respective participation
in the sale of the Securities, (ii) the sentences related to concessions and
reallowances and (iii) the paragraph related to
-16-
stabilization, syndicate covering transactions and penalty bids and, if Schedule
I hereto provides for sales of Securities pursuant to delayed delivery
arrangements, in the last sentence under the heading "Delayed Delivery
Arrangements" in any Preliminary Final Prospectus or the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the documents referred to in the foregoing
indemnity, and you, as the Representatives, confirm that such statements are
correct.
(c) Promptly after receipt by an indemnified party under this
Section 7 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 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party (i)
will not relieve it from any 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 which it may have to any indemnified
party otherwise than under this Section 7. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to appoint counsel
satisfactory to such indemnified party to represent the indemnified party in
such action; provided, however, that if the defendants in 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, the indemnified
party or parties shall have the right to select separate counsel to defend such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
appoint counsel to defend such action and approval by the indemnified party of
such counsel, the indemnifying party will not be liable to such indemnified
party under this Section 7 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof unless (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would represent such counsel with a conflict of interest, (ii) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of paragraph (a)
of this Section 7, representing the indemnified parties under such paragraph (a)
who are parties to such action), (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 commencement of
the action or (iv) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party. An
indemnifying party shall 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
-17-
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 order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) or (b)
of this Section 7 is due in accordance with its terms but is for any reason held
by a court to be unavailable from the Company on grounds of policy or otherwise,
the Company and the Underwriters shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigation or defending same) (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 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 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 7, each person who controls an
Underwriter within the meaning of the Act 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 preceding sentence of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this paragraph
-18-
(d), notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other obligation it or
they may have hereunder or otherwise than under this paragraph (d).
8. Default by an Underwriter. It any one or more Underwriters
shall fail to purchase and pay for any of the Purchased 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 amount
of Purchased Securities set forth opposite their names in Schedule II hereto
bears to the aggregate amount of Purchased Securities set forth opposite the
names of all the remaining Underwriters) the Purchased Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate amount of Purchased Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate amount of Purchased Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Purchased
Securities, and if such nondefaulting Underwriters do not purchase all the
Purchased 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 8, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
Final Prospectus or in any other documents or arrangements may be effected. As
used in this Section 8 only, the "aggregate amount" of Purchased Securities
shall mean the aggregate principal amount of any Purchased Debt Securities plus
the public offering price of any Debt Warrants included in the relevant offering
of Purchased Securities. 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.
9. 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 Purchased Securities, if prior to such
time (i) there shall have been a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) there shall have been
a suspension or material limitation in trading in the Company's common stock on
the New York Stock Exchange; (iii) there shall have been a general moratorium on
commercial banking activities declared by either federal or New York state
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iv) there shall have
been an outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, or (v) there
shall have occurred any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the
effect of any such event specified in clause (iv) or (v) in the judgment of the
Representatives make it impracticable or inadvisable to proceed with
-19-
the public offering or the delivery of the Purchased Securities on the terms and
in the manner contemplated in the prospectus.
10. 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 or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the Purchased Securities. The
provisions of Sections 6 and 7 hereof shall survive the termination or
cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or sent by facsimile and confirmed to them, at the address specified
in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
sent by facsimile and confirmed to it at ▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, to the attention of the Treasurer, with a copy to the attention of the
General Counsel of the Company at the same address.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
[Signatures on Following Page]
-20-
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 between the
Company and the several Underwriters.
Very truly yours,
THE COCA-COLA COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice-President and Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the date
specified in Schedule I hereto.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By: /s/ ▇▇▇▇▇▇▇, Sachs & Co.
-------------------------------
For itself/themselves and the
other several Underwriters, if
any, named in Schedule II to the
foregoing Agreement.
-21-
SCHEDULE I
Underwriting Agreement dated: May 14, 2002
Registration Statement No(s).: 333-59936
Representative: ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
PURCHASED DEBT SECURITIES
Title: 4.00% Notes due June 1, 2005
Principal amount: $250 million
Interest Rate: 4.00% per annum from March 8, 2002
Payable: semiannually on June 1 and December 1, commencing December 1, 2002
Maturity: June 1, 2005
Currency of Denomination: U.S. Dollars
Currency of Payment: U.S. Dollars
Form and Denomination: Book-entry only form represented by one or more global
securities deposited with The Depository Trust Company or its designated
custodian. Denominations of $1,000 or any multiples thereof.
Sinking fund provisions: None.
Redemption provisions: As set forth in the Prospectus Supplement dated May 14,
2002 under "Description of Notes - Redemption for Tax Purposes."
Purchase price (excluding interest of $1,916,666.66 accrued on the notes
from March 8, 2002 to the date they are delivered, which accrued interest
must be paid to the Company by the purchasers and the underwriters): 98.935%
Expected reoffering price (excluding interest of $1,916,666.66 accrued on the
notes from March 8, 2002 to the date they are delivered, which accrued interest
must be paid to the Company by the purchasers and the underwriters): 99.104%
Type of Offering: Delayed Offering
Delayed Delivery Arrangements: None
Delivery Date: N/A
Percentage Fee: N/A
I-1
Minimum principal amount of each contract: N/A
Maximum aggregate principal amount of all contracts: N/A
DEBT WARRANTS
Number of Debt Warrants to be issued: N/A
Debt Warrant Agreement:
Form of Debt Warrants: Registered
Issuable jointly with Debt Securities: [Yes] [No]
[Number of Debt Warrants issued with each $ principal amount of
Debt Securities:]
[Detachable Date.]
Date from which Debt Warrants are exercisable:
Date on which Debt Warrants expire:
Exercise price of Debt Warrants:
Title of Warrant Debt Securities:
Principal amount of Warrant Debt Securities purchasable upon exercise of one
Debt Warrant:
Description of Debt Warrant Securities:
Interest Rate: % from 200 , payable:
Maturity:
Currency of Denomination:
Currency of Payment:
Form and Denomination:
Sinking Fund Provisions:
Redemption Provisions:
I-2
Purchase price of Debt Warrants: $
Expected reoffering price of Debt Warrants: $
---------------
Tax Opinion pursuant to Section 5(k): To be delivered on the Closing Date.
The Closing will take place at 9:00 AM, New York City time, on May 17, 2002, at
the offices of King & Spalding, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
I-3
SCHEDULE II
PRINCIPAL AMOUNT OF
SECURITIES TO BE
UNDERWRITERS PURCHASED
------------ -------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $225,000,000
▇▇▇▇▇▇▇▇ Capital Partners, L.P. 25,000,000
------------
Total ......................................................... $250,000,000
============