FRANCHISE ASSET
PURCHASE AGREEMENT
THIS FRANCHISE ASSET PURCHASE AGREEMENT, is made as of the 21st day of January,
1998 by and among Coca-Cola Bottling Company Southeast, Incorporated, an Alabama
corporation ("SELLER"), NABC, Inc., ("BUYER") a Delaware corporation and an
indirect wholly-owned subsidiary of Guarantor, and Coca-Cola Bottling Co.
Consolidated, a Delaware corporation ("GUARANTOR").
W I T N E S S E T H:
WHEREAS, Seller is the franchisee of those franchise rights for the
bottling, distribution and sale of soft drink products from The Coca-Cola
Company, the ▇▇ ▇▇▇▇▇▇ Company and other soft drink franchisers in the
territories specified in each of the franchise contracts set forth on Exhibit A
(collectively the "FRANCHISE CONTRACTS"); and
WHEREAS, Seller desires to sell to Buyer and Buyer desires to purchase
from Seller all of Seller's right, title and interest in and to the Franchise
Contracts and items of intangible property as specified herein; and
WHEREAS, such purchase and sale shall be pursuant to the terms and
conditions of this Agreement; and
WHEREAS, the execution and performance of this Agreement is a condition
to closing of that certain Operating Asset Purchase Agreement dated of even date
herewith by and among Seller, Guarantor and CCBC of Nashville, L.P. (the
"OPERATING ASSET PURCHASE AGREEMENT");
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NOW THEREFORE, in consideration of the mutual promises and conditions
contained herein, and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
SALE, TRANSFER AND CONVEYANCE OF
FRANCHISE CONTRACTS AND INTANGIBLE ASSETS
At the Closing and upon the terms and conditions contained herein,
Seller shall bargain, sell, assign, convey, and transfer to Buyer, and Buyer
agrees to purchase and receive from Seller all of Seller's right, title and
interest in and to (i) the Franchise Contracts as well as (ii) all those
intangible assets of Seller which are neither "Purchased Assets" nor "Excluded
Assets" as those terms are defined in the Operating Asset Purchase Agreement.
The foregoing items (i) and (ii) are collectively referred to as the "PURCHASED
INTANGIBLES".
ARTICLE II
PURCHASE PRICE
The purchase price for the Purchased Intangibles shall be Twenty-Eight
Million Six Hundred Thousand Dollars ($28,600,000) payable at Closing by the
issuance to Seller of Buyer's term note providing for payment of Twenty-Eight
Million One Hundred Thousand Dollars ($28,100,000) due July 15, 1998 and payment
of Five Hundred Thousand Dollars ($500,000) due January 31, 1999, said note
being in the form attached hereto as Exhibit B (the "PROMISSORY NOTE"), or at
the alternate election of Seller, two (2) promissory notes will be issued, one
providing for the payment of Sixteen Million Four Hundred Fifty Thousand Dollars
($16,450,000) due July 15, 1998 and payment of Two Hundred fifty Thousand
Dollars ($250,000) due January 31, 1999, and the second providing for the
payment of Eleven Million Six Hundred Fifty Thousand Dollars ($11,650,000) due
July 15, 1998 and payment of Two Hundred Fifty Thousand Dollars ($250,000) due
January 31, 1999, said notes being in the form attached hereto as Exhibit B-1.
If the alternate promissory notes are issued, then they shall be deemed
collectively defined as the
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"Promissory Note" for all purposes under this Agreement. The Promissory Note
will state on its face that it is subject to the right of offset pursuant the
provisions of Articles XII hereof and Article XV of the Operating Asset Purchase
Agreement.
ARTICLE III
CLOSING
The delivery of the Promissory Note pursuant to Article II above, the
sale, transfer, assignment and delivery of the Purchased Intangibles pursuant to
Article I above, and the delivery of the other instruments, certificates and
legal opinions required hereunder (the "CLOSING") shall take place at ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, commencing at 2 p.m.,
eastern standard time on _______, January _____, 1998 or on such other date or
such other time or place as the parties hereto shall agree; provided, however,
that unless the parties otherwise agree, such closing shall take place on the
business day immediately preceding the closing of the transactions contemplated
by the Operating Asset Purchase Agreement (the date and time of the Closing
being referred to herein as the "CLOSING DATE"). At the Closing (a) Seller shall
convey to Buyer all of Seller's right, title and interest in and to the
Purchased Intangibles by delivery of bills of sale (in the form attached hereto
as Exhibit C) and instruments of transfer and assignment satisfactory to Buyer
and its counsel, shall deliver all certificates, opinions of counsel and other
instruments and documents contemplated hereby all in form and substance
reasonably satisfactory to Buyer's counsel and as shall be reasonably necessary
and appropriate to transfer and convey all of Seller's rights in and to the
Purchased Intangibles, and (b) Buyer shall deliver to Seller the Promissory
Note, and all certificates, instruments and documents contemplated hereby, all
in form and substance reasonably satisfactory to Seller's counsel. The effective
time of Closing shall be 11:59 p.m. on the Closing Date of the aforesaid
Operating Asset Purchase Agreement.
ARTICLE IV
FEES
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Each party shall pay its own attorneys and accountants fees and fees of
other applicable professionals retained by such party. Seller shall be solely
responsible for the fee of ▇▇▇▇▇▇ Capital, Inc. and any other broker or finder
retained by it. Notwithstanding the foregoing, Buyer agrees to reimburse Seller
(on a monthly basis as incurred) for all of its actual out-of-pocket costs,
expenses and fees (including attorney's fees) incurred by Seller in complying
with the provisions of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act as
required by the transactions contemplated by this Agreement and (without
duplication of payment) the Operating Asset Purchase Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER
As a material inducement to Buyer entering into this Agreement and
consummating the transactions contemplated hereby, Seller hereby makes the
following representations and warranties to Buyer, each of which shall be
continuing, shall be true at the date of execution hereof and on the Closing
Date, and shall survive the Closing and the sale of the Purchased Assets and
other transactions contemplated hereby as provided in Section 13.2 below. Where
a particular representation or warranty is limited to Seller's knowledge, or to
the knowledge of Seller, it shall refer only to the knowledge of any of the
following: (i) any of the shareholders of Seller, (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Chief
Operating Officer), (iii) ▇▇▇▇▇▇▇ ▇▇▇▇ (Director of Sales and Marketing), or
(iv) Elisa Means (Controller); all without personal liability to said persons.
5.1 CORPORATE EXISTENCE, AUTHORITY AND BINDING EFFECT. Seller is a
corporation duly organized, validly existing, and in good standing under the
laws of the state of Alabama, and is in good standing as a foreign corporation
in the state of Tennessee. Seller has full power and authority to own its
properties and conduct its business as now being conducted. Seller has full
corporate power and authority to execute this Agreement and consummate the
transactions contemplated hereby, and its shareholders and Board of Directors
have properly approved the transactions contemplated by this Agreement. True and
correct copies of the resolutions of the
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Board of Directors and shareholders of Seller authorizing Seller to enter into
and consummate this transaction, properly certified by the Chief Executive
Officer or Secretary of Seller, are attached hereto as Exhibit D. Upon execution
and delivery, this Agreement, the Assignment and ▇▇▇▇ of Sale, and all other
documents collateral hereto and thereto shall be valid and legally binding
documents, enforceable in accordance with their terms, except that (i) such
enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditor's rights,
and (ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceedings therefor may be brought.
5.2 CAPITALIZATION AND GOOD TITLE TO SHARES. The authorized capital
stock of Seller consists solely of shares of common stock all of which are owned
either by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. There are no outstanding
subscriptions, options, rights, warrants, or other agreements or commitments
obligating Seller to issue or to transfer from treasury any additional shares of
its capital stock. There are no pledges or other agreements which would give any
other person or entity other than ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ the
right to vote the shares of stock of Seller or any right to interfere with the
consummation of the transactions contemplated hereunder.
5.3 ORGANIZATIONAL DOCUMENTS. The Articles of Incorporation, By-Laws,
minute books and stock books of Seller which have been furnished to Buyer are
true and complete and, except as set forth in Schedule 5.3 contain all
amendments thereto to date, a record of all material corporate proceedings of
Seller (in the case of the minute books), and a record of all stock issuances
and transfers (in the case of the stock books). Schedule 5.3 contains a true and
complete list of all of the current officers and directors of Seller.
5.4 LIENS AND GOOD TITLE.
(A) Seller owns all legal title and beneficial and equitable interest
in and to the Purchased Intangibles. Seller has, and on the Closing
Date will have, good and marketable title to
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the Purchased Intangibles, free and clear of any and all liens,
security interests, pledges, encumbrances, agreements, charges,
restrictions, options, joint ownership or adverse claims or rights
whatsoever, other than those restrictions stated in the Franchise
Contracts comprising the Purchased Intangibles.
(B) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER MAKES NO
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED AT LAW OR IN EQUITY, IN
RESPECT OF ANY OF ITS ASSETS (INCLUDING THE PURCHASED INTANGIBLES),
LIABILITIES OR OPERATIONS, INCLUDING NO REPRESENTATION OR WARRANTY AS
TO MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, CONDITION OR
QUALITY, AND ANY SUCH OTHER REPRESENTATIONS OR WARRANTIES ARE HEREBY
EXPRESSLY DISCLAIMED. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT, EXCEPT
TO THE EXTENT SPECIFICALLY SET FORTH IN THIS AGREEMENT, BUYER IS
PURCHASING THE PURCHASED INTANGIBLES ON AN "AS-IS, WHERE-IS" BASIS. THE
PROVISIONS OF THIS SECTION 5.4 SHALL SURVIVE THE CLOSING OF THE
TRANSACTION DESCRIBED HEREIN AND THE ISSUANCE OF ANY BILLS OF SALE,
DEEDS OF TRANSFER, OR OTHER DOCUMENTS OF TRANSFER.
5.5 NO CONFLICT. Neither the execution and delivery of this Agreement,
the consummation by Seller of the transactions contemplated hereby, nor the
fulfillment and compliance with the terms and provisions hereof will on the
Closing Date (i) conflict with or result in a breach of or default under any of
the terms, conditions or provisions of any loan, note, bond, mortgage, lease,
indenture, license, contract, agreement, or other instrument or obligation to
which Seller is a party or by which any of its respective properties or assets
are bound (except as limited by the Franchise Contracts), (ii) conflict with any
provision of Seller's charter, bylaws, or any corporate agreement binding on
Seller, or (iii) otherwise constitute an ultra ▇▇▇▇▇ act.
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5.6 NO CONSENTS. All consents necessary to consummate the transactions
contemplated herein shall be obtained prior to or at the Closing, except as
otherwise provided herein. No other consent or approval of, or declaration,
filing or registration with, any non-governmental third party or any
governmental authority is required to be obtained by Seller (i) in connection
with the execution of this Agreement or (ii) for the consummation of the
transactions contemplated hereby other than compliance with the provisions of
the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act. For purposes of this Section,
and as to consents required by soft drink franchisers, only the consent of The
Coca-Cola Company and the ▇▇ ▇▇▇▇▇▇ Company shall be considered necessary
consents. No other consent of a soft drink franchiser shall be deemed a
necessary consent.
5.7 ABSENCE OF CHANGE. From the date hereof through and including the
Closing Date:
(a) Seller shall not have sold, contracted to sell, conveyed,
transferred, assigned, encumbered, pledged, distributed, or otherwise
disposed of any of the Purchased Intangibles or any rights thereto.
(b) Seller shall not have granted any license or sub-license of any
rights with respect to any of the Purchased Intangibles.
5.8 LITIGATION. Except as set forth in Schedule 5.8, there is no
governmental or private litigation, investigation, proceeding, claim, suit or
audit of any kind whatsoever pending or, to the best knowledge of Seller,
threatened against Seller or the Purchased Intangibles. To Seller's knowledge,
there is no private person, other entity or governmental agency who has any
basis for any cause of action which would cause Seller, or Buyer as a
transferee, to suffer any loss or liability not disclosed herein.
5.9 ANTITRUST MATTERS. Seller is and throughout the applicable
statutory period of limitations has been in compliance with all laws and
regulations, whether federal or state, per-
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taining or relating in any way to the regulation of competition or trade among
or between business entities, including but not limited to, Section 1 and 2 of
the ▇▇▇▇▇▇▇ Act, Section 3 of the ▇▇▇▇▇▇▇ Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Act, the
▇▇▇▇▇▇ Act, Section 5 of the Federal Trade Commission Act and applicable state
antitrust and trade laws, regulations and/or ordinances. The business and
operations of Seller, or any predecessor, affiliate, parent or subsidiary
thereof, have been conducted in full and complete compliance with any and all
such laws, regulations and ordinances. To the knowledge of Seller, there is no
grand jury or other federal or state investigation pending with regard to any
antitrust matters involving Seller or the Purchased Intangibles.
5.10 NO BROKER OR FINDER. With the exception of ▇▇▇▇▇▇ Capital, Inc.
(whose fee will be paid by Seller), Seller has not had discussions with,
negotiated with, been represented by, employed any broker or finder or incurred
any liability for any brokerage fees, commission or finder's fees to any
individual or entity in connection with this Agreement or any of the
transactions contemplated hereby.
5.11 NO MATERIAL OMISSION. To the knowledge of Seller, all facts
material to the financial condition, assets, supplies, customers, business
prospects, and results of operations of its business have been disclosed to
Buyer in writing in this Agreement. To the knowledge of Seller, no
representation or warranty contained in this Agreement, and no Exhibit,
certificate, Schedule, list or other information attached to this Agreement,
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements herein or therein, in light of the
circumstances under which they were made, not misleading.
ARTICLE VI
BUYER'S REPRESENTATIONS AND WARRANTIES
Buyer hereby makes the following representations and warranties to
Seller, each of which shall be continuing, shall be true at the date of
execution hereof and on the Closing date, and shall survive the Closing and the
sale of the Purchased Assets and other transactions contemplated hereby as
provided in Section 13.2 below.
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6.1 CORPORATE EXISTENCE, AUTHORITY AND BINDING EFFECT. Buyer is a
corporation duly organized, validly existing, and in good standing under the
laws of the state of Delaware. Buyer has full power and authority to own its
properties and conduct its business as now being conducted. Buyer has full
corporate power and authority to execute this Agreement and consummate the
transactions contemplated hereby, and its shareholders and Board of Directors
have properly approved the transactions contemplated by this Agreement. True and
correct copies of the resolutions of the Board of Directors and shareholders of
Buyer authorizing Buyer to enter into and consummate this transaction, properly
certified by the President and Secretary of Buyer, are attached hereto as
Exhibit E. Upon execution and delivery, this Agreement, the Assignment and ▇▇▇▇
of Sale, and all other documents collateral hereto and thereto shall be valid
and legally binding documents, enforceable in accordance with their terms,
except that (i) such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditor's rights, and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceedings
therefor may be brought.
6.2 NO VIOLATION OR CONFLICT. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby
will not violate any law or regulation to which Buyer is subject, or conflict
with or cause a default under the terms of any agreement to which Buyer is a
party, or by which it or any of its assets may be bound.
6.3 NO LITIGATION. Buyer has not been served with notice that there is
any ongoing or pending litigation or antitrust claim against Buyer, Buyer has no
knowledge of any such litigation or claim being threatened, and Buyer has no
knowledge of any basis for such litigation or claim, whether by private person,
other entity, or governmental agency, where such litigation or claim would
adversely affect the transactions contemplated by this Agreement.
6.4 NO BROKERS OR FINDERS. Neither Buyer nor anyone acting on its
behalf has had discussions with, negotiated with, been represented by, employed
any broker or finder or done
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anything to cause or incur any liability to any party for any broker's or
finder's fees, commissions or the like to any individual or entity in connection
with this Agreement or any transaction contemplated hereby.
6.5 FINANCIAL ABILITY. Buyer has the financial ability to consummate
the transactions contemplated hereby and honor the Promissory Note.
ARTICLE VII
COVENANTS OF SELLER
Seller covenants and agrees with Buyer as follows:
7.1 CONDUCT OF BUSINESS THROUGH THE CLOSING DATE. From the date hereof
through and including the Closing Date:
(a) Seller shall operate its business diligently and only in the usual,
ordinary and customary manner as a going concern.
(b) Seller shall take all steps necessary to keep all of the Purchased
Intangibles in full force and effect. Seller shall neither act (nor
fail to act) in such a manner which would lead to a breach or default
by Seller with the terms and conditions of the Franchise Contracts or
otherwise give the franchiser any right to terminate the Franchise
Contracts.
7.2 REPRESENTATIONS AND WARRANTIES. Seller shall use its commercially
reasonable efforts to cause the representations and warranties of Article V to
be true and correct as of the Closing Date; provided however, that the foregoing
shall not limit Buyer's indemnification rights under Article XII hereof.
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7.3 COMPLETION OF TRANSACTIONS. Seller shall use its commercially
reasonable efforts to assure that the conditions set forth in Article IX hereof
are satisfied on or prior to the Closing Date.
7.4 APPROVALS, CONSENTS. Seller shall fully cooperate with Buyer in
obtaining the consent of all franchisers to the transfer of the Franchise
Contracts to Buyer; provided however, that so long as Seller has fully
cooperated with Buyer in this regard, the failure to obtain any consent to
transfer of any soft drink bottling rights shall not be deemed to be a breach by
Seller with the terms of this Section 7.4.
7.5 ACCESS TO PROPERTIES AND RECORDS. Seller shall give to Buyer and
its financial advisors, counsel, accountants, institutional investors and
lenders and other representatives, during normal business hours, access to all
properties, books, contracts, documents, and records with respect to Seller's
business and affairs as Buyer may request to conduct due diligence and as shall
be necessary to effectuate full disclosure to Buyer of all facts affecting the
financial condition, business operations and assets of the business which a
reasonably prudent business person knowledgeable in transactions of this nature
would consider to be material. No investigation by Buyer shall, however,
diminish or limit in any way the representations or warranties of Seller as set
forth in Article V hereof unless Buyer has actual knowledge of the breach on or
prior to the Closing and has consummated the Closing of this Agreement without
affording Seller notice of the breach and a reasonable opportunity to cure the
breach or to elect not to Close without penalty.
7.6 REFRAIN FROM NEGOTIATIONS WITH OTHERS. For the period beginning
with the date of execution of this Agreement to and through the Closing Date or
January 31, 1998, whichever shall first occur, Seller and its agents shall
negotiate and deal exclusively with Buyer for the sale, transfer, and conveyance
of the Purchased Intangibles and Seller shall cause its agents and the
shareholders of Seller not to entertain, solicit, or consider any other offers
from a third party for the acquisition of any of the stock or assets of Seller.
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7.7 NONPUBLICITY AND NONDISCLOSURE OF TERMS. Seller shall take all
reasonable steps to minimize any publicity regarding this transaction to third
parties without prior approval of Buyer, and Seller shall not, without the prior
written consent of Buyer, disclose the purchase price or any other terms of this
Agreement or the transactions contemplated hereby to any third party other than
as requested by Buyer in writing, or as required by subpoena, civil
investigative or discovery demand, criminal investigative demand or similar
order lawfully issued by a court of competent jurisdiction, or as otherwise
required by law; provided, however, that if Seller receives any of the
foregoing, Seller shall promptly notify Buyer and cooperate with Buyer at
Buyer's expense to quash or otherwise limit the scope of such disclosure.
7.8 FURTHER ASSURANCES. Seller shall on the Closing Date, and from time
to time thereafter, promptly at Buyer's request and without further
consideration, execute and deliver to Buyer such instruments of transfer,
conveyance and assignment as Buyer shall reasonably request to transfer, convey
and assign more effectively the Purchased Intangibles to Buyer.
7.9 NO CHANGE TO GOVERNING DOCUMENTS. Prior to Closing, Seller shall
not amend its Articles of Incorporation or Bylaws.
ARTICLE VIII
COVENANTS OF BUYER
Buyer hereby covenants and agrees with Seller as follows:
8.1 REPRESENTATIONS AND WARRANTIES. Buyer shall use its commercially
reasonable efforts to cause the representations and warranties of Article VI to
be true and correct as of the Closing Date; provided however, that the foregoing
shall not limit Seller's indemnification rights under Article XII hereof.
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8.2 COMPLETION OF TRANSACTIONS. Buyer shall use its commercially
reasonable efforts to assure that the conditions set forth in Article X hereof
are satisfied on or before the Closing Date.
8.3 NONDISCLOSURE OF PROPRIETARY INFORMATION. All proprietary and
confidential information of Seller made available to Buyer shall remain the
property of Seller pending Closing. Prior to Closing (and in the event there is
no Closing), Buyer shall restrict its use of any and all information received
from Seller for the purposes specified herein and to prepare the filings and
take such action as is required by applicable law, including but not limited to
the provisions of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act, and
otherwise will be governed by the confidentiality agreement entered into between
Buyer and ▇▇▇▇▇▇ Capital Inc. as of August 22, 1997 and that certain "Binding
Proposal to Purchase Coca-Cola Bottling Company Southeast, Incorporated" dated
October 27, 1997.
8.4 APPROVALS, CONSENTS. Buyer shall use its commercially reasonable
efforts to obtain the consent of The Coca-Cola Company and the ▇▇ ▇▇▇▇▇▇ Company
to the transfer of the Franchise Contracts.
8.5 NONDISCLOSURE OF TERMS. Buyer shall not, without the prior written
consent of Seller, disclose the purchase price or any other economic terms of
this Agreement or the transactions contemplated hereby to any third party, other
than as required by law, including but not limited to the Securities Act of 1933
and other state or federal securities law. In the event that Buyer is ordered to
make a disclosure by virtue of a subpoena, civil investigative or discovery
demand, criminal investigative demand or similar order lawfully issued by a
court of competent jurisdiction, then Buyer shall promptly notify Seller and
cooperate with Seller to quash or otherwise limit the scope of such disclosure.
In the event that on or after the date hereof and through the Closing Date,
Buyer desires to disclose the fact of this transaction to customers of Seller
for purposes of transition, Buyer shall so notify Seller in advance.
ARTICLE IX
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CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE
The obligations of Buyer to complete the Closing are subject to the
satisfaction on or before the Closing Date of each of the following conditions
precedent; provided, however, that the election of Buyer to complete the
Closing, notwithstanding that any such condition is not fulfilled by such time,
shall not preclude Buyer from seeking redress from Seller for breach of the
terms of this Agreement; provided that if Buyer has actual knowledge of the
failure, notice of the failure to fulfill the condition has been provided to
Seller and Seller has been given a reasonable opportunity to fulfill the
condition or elect not to Close without penalty.
9.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Seller set forth in Article V shall have been true and correct in
all material respects on the date made and shall be true and correct on the
Closing Date. Buyer shall have received a certificate to that effect signed by
the Chief Executive Officer of Seller. The parties expressly intend that a
non-material breach by Seller of its representations and warranties shall not
give Buyer the right to refuse to consummate the Closing or to terminate this
Agreement pursuant to Article XI. However, such Closing shall be without
prejudice to Buyer's rights of indemnification under Article XII hereof, unless
Buyer has actual knowledge of the breach on or prior to the Closing and has
consummated the Closing of this Agreement without affording Seller notice of the
breach and a reasonable opportunity to cure the breach, or elect not to Close
without penalty.
9.2 PERFORMANCE OF COVENANTS. Seller shall have performed and complied
with all the covenants, obligations, and conditions required to be performed or
complied with by Seller on or before the Closing Date pursuant to this
Agreement. Buyer shall have received a certificate to that effect signed by the
Chief Executive Officer of Seller. The parties expressly intend that a
non-material failure by Seller to perform or comply with any such covenant,
obligation, or condition shall not give Buyer the right to refuse to consummate
the Closing or to terminate this Agreement pursuant to Article XI. However, such
Closing shall be without prejudice to Buyer's rights of indemnification under
Article XII hereof, unless Buyer has actual knowledge of the failure on or prior
to the Closing and has consummated the Closing of this Agreement without
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affording Seller notice of the failure and a reasonable opportunity to cure the
failure, or elect not to Close without penalty.
9.3 CERTIFIED COPY OF AUTHORIZING RESOLUTIONS. Buyer shall have
received a copy of Seller's board of director and shareholder resolutions
approving this transaction, duly certified by the Secretary of Seller.
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9.4 NO IMPAIRMENT TO FRANCHISE CONTRACTS.
(A) Seller shall have neither taken any action nor have failed to take
any action which would, in Buyer's reasonable opinion, (i) impair the
ability of Buyer to be granted soft drink franchise rights in the
territories specified in those Franchise Contracts of The Coca-Cola
Company or the ▇▇ ▇▇▇▇▇▇ Company, pursuant to normal contract terms, or
(ii) impose liability upon Buyer for any act or omission of Seller
occurring prior to the Closing Date and relating to the Franchise
Contracts of The Coca-Cola Company or the ▇▇ ▇▇▇▇▇▇ Company.
(B) The consent of The Coca-Cola Company and the ▇▇ ▇▇▇▇▇▇ Company to
the issuance of soft drink franchise rights to bottle and distribute
the beverage brands of The Coca-Cola Company and the ▇▇ ▇▇▇▇▇▇ Company
in the same territories where Seller has historically held franchise
rights shall have been granted to Buyer by said franchisers.
9.5 OPINION OF SELLER'S COUNSEL. Buyer shall have received the opinion
of Seller's counsel, Cox and Young, substantially in the form attached hereto as
Exhibit F.
9.6 NO LITIGATION. No action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency of any
federal, state, or local jurisdiction, or before any arbitrator, wherein an
unfavorable injunction, judgment, order, decree, ruling, or charge would (a)
prevent the consummation of any of the transactions contemplated by this
Agreement or (b) cause any of the transactions contemplated by this Agreement to
be rescinded following consummation. As to the Franchise Contracts, only
litigation concerning the franchise rights granted by The Coca-Cola Company and
the ▇▇ ▇▇▇▇▇▇ Company shall be subject to the provisions of this Section.
9.7 CERTIFICATES OF GOOD STANDING. At Closing, Seller shall have
delivered to Buyer a certificate of existence and good standing of Seller from
the office of the Alabama Secretary of State dated not earlier than five (5)
days prior to the Closing Date. Seller shall also deliver a cer-
16
tificate of existence of Seller from the office of the Tennessee Secretary of
State certifying the due qualification of Seller to transact business in the
State of Tennessee as a foreign corporation dated not earlier than five (5) days
prior to the Closing Date.
9.8 COMPLIANCE WITH HSR. The parties acknowledge that all applicable
waiting periods (and any extensions thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act have expired or otherwise been terminated.
9.9 CLOSING OF OPERATING ASSET PURCHASE AGREEMENT. Under no
circumstances shall Buyer have any obligation to consummate this transaction
unless and until CCBC of Nashville, L.P. has acquired the operating assets of
Seller pursuant to the terms and conditions of the Operating Asset Purchase
Agreement.
9.10 CLOSING. The Closing shall have occurred no later than January 31,
1998.
ARTICLE X
CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE
The obligations of Seller to complete the Closing are subject to the
satisfaction on or before the Closing Date of each of the following conditions
precedent; provided, however, that the election by Seller to complete the
Closing notwithstanding that any such condition is not fulfilled by such time
shall not preclude Seller from seeking redress from Buyer for breach of the
terms of the Agreement, provided that if Seller has actual knowledge of the
failure, notice of the failure to fulfill the condition has been provided to
Buyer and Buyer has been given a reasonable opportunity to fulfill the condition
or elect not to Close without penalty.
10.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Buyer set forth in Article VI shall have been true and correct
in all material respects on the date made, and shall be true and correct on the
Closing Date. Seller shall have received a
17
certificate to that effect signed by a duly authorized officer of Buyer. The
parties expressly intend that a non-material breach by Buyer of its
representations and warranties shall not give Seller the right to refuse to
consummate the Closing or to terminate this Agreement pursuant to Article XI.
However, such Closing shall be without prejudice to Seller's rights of
indemnification under Article XII hereof, unless Seller has actual knowledge of
the breach on or prior to the Closing and has consummated the Closing of this
Agreement without affording Buyer notice of the breach and a reasonable
opportunity to cure the breach or elect not to Close without penalty.
10.2 PERFORMANCE OF COVENANTS. Buyer shall have performed and complied
with all covenants, obligations, and conditions required to be performed or
complied with by Buyer on or before the Closing Date pursuant to this Agreement.
Seller shall have received a certificate to that effect signed by a duly
authorized officer of Buyer. The parties expressly intend that a non-material
failure by Buyer to perform or comply with any such covenant, obligation or
condition shall not give Seller the right to refuse to consummate the Closing or
to terminate this Agreement pursuant to Article XI. However, such Closing shall
be without prejudice to Seller's rights of indemnification under Article XII
hereof, unless Seller has actual knowledge of the failure on or prior to the
Closing and has consummated the Closing of this Agreement without affording
Buyer notice of the failure and a reasonable opportunity to cure the failure or
elect not to Close without penalty.
10.3 CERTIFIED COPY OF AUTHORIZING RESOLUTIONS. Seller shall have
received a copy of Buyer's board of directors resolutions approving this
transaction, duly certified by the Secretary of Buyer.
10.4 OPINION OF BUYER'S COUNSEL. Seller shall have received an opinion
of ▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C., counsel to Buyer and Guarantor, substantially
in the form attached hereto as Exhibit G.
10.5 NO LITIGATION. No action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency of any
federal, state, or local jurisdic-
18
tion, or before any arbitrator, wherein an unfavorable injunction, order,
decree, ruling, or charge would (a) prevent the consummation of any of the
transactions contemplated by this Agreement or (b) cause any of the transactions
contemplated by this Agreement to be rescinded following consummation.
10.6 CERTIFICATES OF GOOD STANDING. At Closing, Buyer shall provide
Seller with a certificate of existence from the office of the Delaware Secretary
of State certifying the existence and good standing of Buyer in the state of
Delaware. Such certificates shall be dated not more than five (5) days prior to
the Closing Date.
10.7 COMPLIANCE WITH HSR. The parties acknowledge that all applicable
waiting periods (and any extensions thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act shall have expired or otherwise been terminated.
10.8 CLOSING OF OPERATING ASSET PURCHASE AGREEMENT. Under no
circumstances shall Seller have any obligation to consummate this transaction
unless and until CCBC of Nashville, L.P. has acquired the operating assets of
Seller pursuant to the terms and conditions of the Operating Asset Purchase
Agreement.
10.9 CLOSING. The Closing shall have occurred no later than January 31,
1998.
ARTICLE XI
TERMINATION
11.1 CONDITIONS OF TERMINATION. The obligations of the parties with
respect to the Closing shall terminate:
(a) At the election of Buyer, at or prior to Closing, if any of the
conditions precedent set forth in Article IX have not been fulfilled on
or before the Closing Date, or if any
19
other circumstance shall have occurred entitling Buyer to terminate
this Agreement pursuant to the terms hereof.
(b) At the election of Seller, at or prior to Closing, if any of the
conditions precedent set forth in Article X have not been fulfilled on
the Closing Date, or if any other circumstance shall have occurred
entitling Seller to terminate this Agreement pursuant to the terms
hereof.
11.2 EFFECT OF TERMINATION. In the event of termination in accordance
with this Article: (i) this Agreement shall become null and void and of no
further force or effect, except as otherwise provided herein, (ii) this
Agreement shall be deemed to be rescinded, (iii) each party shall pay all costs
and expenses incurred by it in connection with this Agreement and the
transactions contemplated herein, and (iv) no party shall have further liability
to any other party because of the failure to consummate the transactions
contemplated hereby.
ARTICLE XII
INDEMNIFICATION
12.1 INDEMNIFICATION BY SELLER. Sellers shall indemnify and hold Buyer
harmless from and against, and reimburse and promptly pay to Buyer the full
amount of, any and all loss, damage, liability, cost, obligation or expense
(including reasonable expenses and fees of counsel) incurred by Buyer, directly
or indirectly, as a result of:
(a) a breach of any representation or warranty or inaccuracy of any
representation of Seller contained in this Agreement or the Operating
Asset Purchase Agreement, or in any certificate or document delivered
to Buyer by Seller which is specified in this Agreement; or
(b) a failure of Seller to perform or comply with any covenant,
agreement or obligation required by this Agreement or the Operating
Asset Purchase Agreement to be performed or complied with by Seller.
20
All undisputed claims, undisputed portions of partially disputed claims, and
disputed claims that have been resolved by agreement of the parties or pursuant
to the provisions of Section 12.7 below shall first be applied against the
Liability Deductible in the manner set forth in Section 12.4 hereof, and shall
be subject to the Seller indemnity cap set forth in Section 12.5 hereof. To the
extent that any claim of Buyer against Seller is indemnified by Seller, Seller
shall receive all of Buyer's rights in and to such claim and Seller shall be
entitled to pursue third parties in satisfaction of such claim as Seller shall
deem appropriate.
12.2 INDEMNIFICATION BY BUYER. Buyer shall indemnify and hold Seller
harmless from and against, and reimburse and promptly pay to Seller the full
amount of, any and all loss, damage, liability, cost, obligation or expense
(including reasonable expenses and fees of counsel) incurred by Seller, directly
or indirectly, as a result of:
(a) a breach of any representation or warranty of Buyer contained in
this Agreement or the Operating Asset Purchase Agreement or in any
certificate or document delivered to Seller by Buyer in connection with
this transaction; or
(b) a failure of Buyer to perform or comply with any covenant,
agreement or obligation required by this Agreement or the Operating
Asset Purchase Agreement to be performed or complied with by Buyer.
12.3 NOTICE OF POTENTIAL CLAIMS AND OPPORTUNITY TO PARTICIPATE IN
DEFENSE. Promptly after either Buyer or Seller becomes aware of any claim
whatsoever which would be subject to indemnification set forth in Sections 12.1
or 12.2 above, such party shall provide the other party with prompt written
notice of such claim stating all information regarding the claim that the party
possesses. The duty to provide information is a continuing one, and the party
claiming indemnification shall provide all new and/or additional information to
the indemnifying party as it becomes available. If the notified party
acknowledges its obligation to indemnify, then it shall have the option to
provide, at its own expense, the defense of any such claims, pro-
21
vided that (i) the option to defend is exercised and notice of such election is
given to the indemnified party within fifteen (15) days of receipt of notice of
the claim for indemnification, (ii) the indemnified party shall be kept fully
informed of the defense, said defense to be vigorously pursued by the
indemnifying party, (iii) the indemnified party shall have the right, at its
expense, to participate in the defense and (iv) no material strategic decision
or settlement offer or response by the indemnifying party shall be made without
the prior consent of the indemnified party (such consent not to be unreasonably
withheld or delayed). Nothing herein shall be deemed to prevent Buyer or Seller
from making a claim for indemnification hereunder for potential or contingent
claims or demands provided the notice sets forth the specific basis for any such
potential or contingent claim or demand to the extent then feasible and the
notifying party has reasonable grounds to believe that such a claim or demand
may be made. Upon the determination that a claim is subject to indemnification
(either by agreement or pursuant to the resolution of the dispute pursuant to
Section 12.7 below) and the indemnified party has suffered an out of pocket
loss, the claim shall bear interest at the same rate as the Promissory Note from
the date which is thirty (30) days subsequent to the date on which notice of
claim was given to the other party, until the date the claim is satisfied (which
in the case of Buyer's claims is the date on which the claim is applied to the
Liability Deductible pursuant to Section 12.4 below or the date that the claim
is paid by way of offset to the Promissory Note or otherwise). All claims for
indemnification must be made prior to the expiration of the applicable
representation and warranty as provided in Section 13.2 below.
12.4 LIABILITY DEDUCTIBLE. Seller shall not be required to indemnify
Buyer pursuant to this Article XII unless and until the aggregate amount of all
indemnification claims made by Buyer to Seller under this Agreement and the
Operating Asset Purchase Agreement (without duplication) exceed one half of one
percent (0.5%) of the sum of (i) Twenty-Eight Million Six Hundred Thousand
Dollars ($28,600,000) plus the "Purchase Price" as adjusted by the "Adjustment"
pursuant to Articles II and III of the Operating Asset Purchase Agreement. The
result of the foregoing calculation shall be referred to as the "LIABILITY
DEDUCTIBLE". Only the amounts in excess of the Liability Deductible are
recoverable by Buyer.
22
12.5 SELLER INDEMNITY CAP, METHOD OF INDEMNITY PAYMENT.
(a) The parties intend that the indemnity cap be the same as, and not
in addition to the provisions of Section 15.5 of the Operating Asset
Purchase Agreement. Accordingly, the maximum indemnity liability of
Seller for (i) breaches of this Agreement (other than for breaches of
Sections 5.1, 5.2 and 5.4 hereof) plus (ii) breaches of the Operating
Asset Purchase Agreement (other than for breaches of Sections 7.1, 7.2
and 7.5 thereof) shall not exceed One Million Five Hundred Thousand
Dollars ($1,500,000). The method of indemnity payment shall be by way
of offset to the Promissory Note, or otherwise as provided herein. Such
offset shall be by way of substitution of the Promissory Note using the
same procedure as specified in Section 3.2 of the Operating Asset
Purchase Agreement.
(b) To the extent that proceeds from the Promissory Note have been
distributed by Seller directly or indirectly to or for the benefit of
one or more shareholders of Seller, then the indemnity obligation shall
devolve to such shareholder to the extent of such distribution to the
individual shareholder.
(c) In the event that Buyer has made a timely claim for
indemnification, and to the extent such claim is in excess of the
Liability Deductible, Buyer shall be entitled to withhold payment of an
amount equal to such claim from the amounts otherwise due and payable
pursuant to the Promissory Note. In such event, the amount so withheld
shall continue to bear interest as provided in the Promissory Note
until the resolution of such claim. Upon resolution, such amounts, if
any, still due to Seller shall be promptly paid, with accrued and
unpaid interest.
12.6 EXCLUSIVE REMEDIES. The parties intend that all matters within the
scope of the indemnification provisions of this Article XII shall be resolved
pursuant to this Article XII and
23
that this Article XII shall constitute the sole and exclusive remedy of Buyer
with respect to such matters or with respect to any other breach of this
Agreement, it being understood that the remedies provided in this Article XII
shall supersede any conflicting statutory or common law rights of either party.
The foregoing shall not apply to claims involving intentional fraud or
intentional misrepresentation.
12.7 ARBITRATION. In the event a dispute arises under this Agreement
over a claim for indemnification, and if such dispute continues for a period in
excess of thirty (30) days subsequent to the date of the claim, either party
shall have the right to demand arbitration and the dispute shall then be
submitted to a mutually agreeable arbitrator or, if none are mutually agreeable,
to the American Arbitration Association for arbitration under the Commercial
Arbitration Rules of the Association, as then in effect. If deemed appropriate
by the arbitrator, the prevailing party's costs and expenses incurred in
connection with the arbitration, including reasonable attorney's fees and
expenses, shall be awarded to the prevailing party. The arbitration shall be
under the law applicable to this Agreement and held in Atlanta, Georgia. The
award of the arbitrator shall be binding upon the parties and may be registered
with any court of competent jurisdiction as a judgment.
ARTICLE XIII
MISCELLANEOUS
13.1 SIMULTANEOUS CLOSING. All transactions at Closing including
execution and delivery of collateral documents referenced herein shall be deemed
to take place simultaneously and none shall be deemed to take place until all
shall have taken place.
13.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The respective
representations, warranties, obligations, covenants and agreements contained
herein shall survive the Closing as follows: All representations and warranties
of the parties shall expire unless a claim is made prior to the first (1st)
anniversary of the Closing Date, except for the representations and warranties
under Sections 5.1, 5.2, 5.4, and 6.1, which will survive indefinitely.
24
13.3 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed as original, and all of which
together shall constitute one and the same instrument.
13.4 CAPTIONS. The captions and subject headings are for convenience of
reference only, and shall not affect the meaning or construction to be given to
any of the provisions hereof.
13.5 GENDER. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the identity
of the parties and context may require.
13.6 NOTICES. Any notice, demand, request, consent, approval or other
communications required or permitted to be given hereunder shall be in writing
and shall be delivered personally or sent either by facsimile transmission, or
nationally recognized overnight courier (utilizing guaranteed next business
morning or day delivery), addressed to the party to be notified at the following
address, or to such other address as such party shall specify by like notice:
If to Seller, then to:
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
AND BETWEEN THE DATES OF JUNE 1ST AND AUGUST 30TH OF EACH YEAR:
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Mrs. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
25
381 East Colinas Blvd.
Apartment 5005B
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq.
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Buyer then to:
NABC, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Guarantor then to:
Coca-Cola Bottling Co. Consolidated
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.,
▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C.
1100 SunTrust Bank Building
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices given as provided shall be deemed effective upon receipt if by personal
delivery, upon confirmed reception of transmission if by facsimile, or if by
recognized overnight courier, on the date delivery is acknowledged to said
courier.
13.7 "INCLUDING". Words of inclusion shall not be construed as terms of
limitation herein, so that references to "included" matters shall be regarded as
non-exclusive, non-characterizing illustrations.
13.8 ENTIRE AGREEMENT, MODIFICATION. This instrument contains the
entire agreement of the parties with respect to the subject matter hereof, all
previous agreements and discussions relating to the same or similar subject
matter being merged herein. The parties acknowledge and agree that neither of
them has made any representations with respect to the subject matter of this
Agreement or any representations inducing the execution and delivery hereof
except as specifically set forth herein. Each of the parties hereto acknowledges
that it has relied on its own judgment in entering into this Agreement. This
Agreement may not be changed, amended, or modified including specifically the
provisions of this paragraph, except by a writing signed by both parties hereto.
The provisions of this paragraph may not be changed, amended, modified,
terminated, or waived as a result of any failure to enforce any provision or the
waiver of any specific breach or breaches thereof or any course of conduct of
the parties.
13.9 ASSIGNMENT. This Agreement and the rights, obligations and duties
of the parties hereto shall not be assignable or otherwise transferable,
provided that the rights, obligations and duties of Buyer may be assigned to a
related party of Buyer. In the event of assignment by Buyer, the assignee shall
expressly assume, in writing delivered to Seller, the liabilities and
obligations of Buyer hereunder, and Buyer shall remain liable for the full
performance of all of the assigned liabilities and obligations under this
Agreement, which liabilities and obligations of Buyer and Guarantor shall be a
primary liability and obligation for full and prompt performance and payment.
Buyer shall promptly notify Seller of any such assignment.
27
13.10 BINDING EFFECT AND BENEFIT. This Agreement shall inure to the
benefit of, and shall be binding upon, the parties, their heirs, executors and
administrators, successors and permitted assigns.
13.11 PARTIAL INVALIDATION. If any portion of this Agreement is held
invalid, illegal or unenforceable, such determination shall not impair the
enforceability of the remaining terms and provisions contained herein. In such
event, this Agreement shall be construed and interpreted as if such invalid,
illegal or unenforceable terms were limited to the minimum extent whereby such
terms would be valid, legal and enforceable, and, if such limitation is not
possible, this Agreement shall be construed and interpreted as if such invalid,
illegal or unenforceable terms were severed and not included herein unless the
result of such limitation or severance would result in such a material change as
to cause completion of the transactions contemplated hereby to be unreasonable.
13.12 WAIVER. No waiver of a breach or violation of any provision of
this Agreement shall operate or be construed as a waiver of any subsequent
breach.
13.13 NO THIRD PARTY BENEFICIARIES. This Agreement shall not create any
rights for the benefit of any third party other than as expressly provided for
herein.
13.14 GOVERNING LAW. This Agreement shall be interpreted and construed
in accordance with the laws of the State of Tennessee.
13.15 PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. Seller acknowledges that
since Guarantor is a publicly traded company, Seller will not issue any press
release or make any public announcement relating to the subject matter of this
Agreement without the prior written approval of Buyer.
28
13.16 CONSTRUCTION. The parties have participated jointly in the
negotiation and drafting of this Agreement. Therefore, in the event of any
ambiguity in the construction or interpretation of this Agreement, no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
13.17 GUARANTY. In order to induce Seller to enter into this Agreement,
Guarantor hereby unconditionally guarantees the full and prompt payment and
performance of all obligations of Buyer under this Agreement as for Guarantor's
own debt and obligation. Guarantor hereby waives any right to require Seller to
take any action against Buyer prior to enforcing this guaranty against
Guarantor. Guarantor agrees that Seller may grant one or more extensions to
fulfill such obligations or release or reach a compromise with any person liable
for such obligations without giving Guarantor notice or without obtaining
Guarantor's consent. This guaranty is absolute, unconditional, continuing,
primary and irrevocable under any and all circumstances and shall not be
released, in whole or in part, by any action or thing which might, but for this
provision, be deemed a legal or equitable discharge of a surety or guarantor, or
by reason of any waiver, omission, action or failure to act by Seller (whether
or not Guarantor's risk is varied or increased or its rights or remedies are
affected thereby), or by reason of any further dealings between Seller and
Buyer, and Guarantor hereby expressly waives and surrenders any defense to its
liability hereunder based upon, and shall be deemed to have consented to, the
foregoing. Guarantor hereby waives notice of acceptance hereof, notice of
non-payment or default by Buyer, presentment, demand, notice of dishonor,
protest and any other notices of any kind. This guaranty is a guarantee of
payment and performance, not merely of collection. This guaranty is subject to
Guarantor's right to assert any defense which could be asserted by Buyer. Under
no circumstances shall Guarantor's liability to Seller exceed the liability of
Buyer to Seller hereunder; provided, however, that the discharge in bankruptcy
of Buyer shall not act to discharge Guarantor's obligations hereunder.
13.18 SCHEDULES AND EXHIBITS. All Exhibits, Schedules and documents
specified in this Agreement shall be deemed to be incorporated herein by any
reference thereto as if fully set out,
29
and a matter disclosed in one Schedule or Exhibit shall be deemed to be
disclosed in all other Schedules or Exhibits in which such disclosure is called
for. The following Schedules and Exhibits are attached hereto:
SCHEDULES DESCRIPTION PAGE REFERENCE
---------- ----------- ---------------
5.3 List of Officers and Directors
5.8 Litigation
EXHIBITS SECTION REFERENCE PAGE REFERENCE
-------- ----------------- ---------------
Exhibit A Preamble
---------
Franchise Contracts
Exhibit B Article II
---------
Promissory Note
Exhibit B-1 Article II
-----------
alternative Promissory Note
Exhibit C Article III
---------
Assignment and ▇▇▇▇ of Sale
Exhibit D 5.1
---------
Seller's Resolutions
Exhibit E 6.1
---------
Buyer's Resolutions
Exhibit F 9.5
---------
Opinion of Seller's Counsel
Exhibit G 10.4
---------
Opinion of Buyer's Counsel
13.20 DEFINITIONS.
30
DEFINED TERM SECTION WHERE DEFINED PAGE REFERENCE
------------ --------------------- ---------------
Buyer Preamble
Closing Article III
Closing Date Article III
Guarantor Preamble
Franchise Contracts Recitals
Liability Deductible 12.4
Operating Asset Purchase Agreement Recitals
Promissory Note Article II
Purchased Intangibles Article I
Seller Preamble
[REST OF PAGE INTENTIONALLY LEFT BLANK]
31
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
aforesaid.
SELLER:
Coca-Cola Bottling Company Southeast, Incorporated
By: _____________________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Executive Officer
Attest: _____________________________
____________________, Secretary
BUYER:
NABC, Inc.
By: _____________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice-President
Attest: _______________________________
B. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Ass't. Secretary
GUARANTOR:
Coca-Cola Bottling Co. Consolidated
By: _____________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice-President
Attest: _______________________
___________________, ______Secretary
32