of defeasance, the holders of such debt securities will be entitled to receive payments in respect of such debt securities solely from such trust. Such a trust may only be established if, among other things, we have delivered to the trustee an opinion of counsel (as specified in the
indenture)Indenture) to the effect that the holders of such debt securities will not recognize income, gain or loss for federal income tax purposes as a result of such defeasance or covenant defeasance and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such defeasance or covenant defeasance had not occurred. Such opinion, in the case of defeasance under the first bullet point above, must refer to and be based upon a ruling of the Internal Revenue Service or a change in applicable federal income tax law occurring after the date of the indenture.Indenture. The accompanyingapplicable prospectus supplement may further describe the provisions, if any, permitting such defeasance or covenant defeasance with respect to the debt securities of a particular series.
Modification and amendments of the indentureIndenture may be made by us and the trustee, with the consent of the holders of not less than a majority in aggregate principal amount of the outstanding debt securities issued under the indentureIndenture which are affected by the modification or amendment, provided that no such modification or amendment may, without the consent of each holder of any debt security affected thereby:
change the stated maturity of the principal of, or any installment of the principal of or interest on, such debt security;
| • | | change the stated maturity of the principal of, or any installment of principal of or interest on, such debt security; |
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| • | | reduce the principal amount of (or premium, if any) or the interest, if any, on such debt security or the principal amount due upon acceleration of an original issue discount security; |
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| • | | change the place or currency of payment of principal (or premium, if any) or interest, if any, on such debt security; |
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| • | | impair the right to institute suit for the enforcement of any such payment on or with respect to such debt security; |
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| • | | reduce the above-stated percentage of holders of debt securities necessary to modify or amend the indenture; or |
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| • | | modify the foregoing requirements or reduce the percentage of outstanding debt securities necessary to waive compliance with certain provisions of the indenture or for waiver of certain defaults. |
reduce the principal amount of (or premium, if any) or the interest, if any, on such debt security or the principal amount due upon acceleration of an Original Issue Discount Security;change the place or currency of payment of the principal of (or premium, if any) or interest, if any, on such debt security;
impair the right to institute suit for the enforcement of any such payment on or with respect to such debt security;
reduce the above-stated percentage of holders of debt securities necessary to modify or amend the Indenture; or
modify the foregoing requirements or reduce the percentage of outstanding debt securities necessary to waive compliance with certain provisions of the Indenture or for waiver of certain defaults.
The Trustee
The Bank of New York Mellon Trust Company, N.A. is the trustee under the indenture.Indenture. Its parent, The Bank of New York Mellon Corporation, has, and certain of its affiliates may from time to time have, banking and other relationships with us and certain of our affiliates.
The trustee may from time to time make loans to us and perform other services for us in the normal course of business. Under the provisions of the Trust Indenture Act of 1939, as amended which we refer to as the “Trust(the “Trust Indenture ActAct”),” upon the occurrence of a default under an indenture, if a trustee has a conflicting interest (as defined in the Trust Indenture Act), the trustee must, within 90 days, either eliminate such conflicting interest or resign. Under the provisions of the Trust Indenture Act, an indenture trustee shall be deemed to have a conflicting interest, among other things, if the trustee is a creditor of the obligor. If the trustee fails either to eliminate the conflicting interest or to resign within 10 days after the expiration of such 90-day period, the trustee is required to notify security holders to this effect and any security holder who has been a bona fide holder for at least six months may petition the court to remove the trustee and to appoint a successor trustee.
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Such terms will include the designation of the security into which the shares are convertible, the conversion price, the conversion period, whether conversion will be at the option of the holder or at our option, any events requiring an adjustment of the conversion price and provisions affecting conversion in the event of the redemption of the offered preferred stock. If the offered preferred stock is convertible into common stock or into any other orof our securities for which there exists an established public trading market at the time of such conversion, such terms may include provisions for calculating the amount of such security to be received by the holders of the offered preferred stock according to the market price of such security as of a time stated in the accompanyingapplicable prospectus supplement.
DESCRIPTION OF COMMON STOCK
AND CLASS C COMMON STOCK
We may issue under this prospectus shares of our common stock or Class C common stock, either separately or together with or upon the conversion of or in exchange for other securities. If this prospectus is being delivered in connection with such an issuance, all of the details thereof will be set forth in the accompanyingapplicable prospectus supplement.
The followingdescription below summarizes certain general terms and provisions of our common stock and Class C common stock which we may offer under this prospectus, as well as certain general terms and conditions of our Class B common stock, which will not be offered under this prospectus. However, we have not described every aspect of the common stock, Class B common stock or Class C common stock. These summaries are not complete and are subject to, and are qualified in their entirety by reference to, the following documents: (A) our restated certificatethe Restated Certificate of incorporation;Incorporation; (B) our bylaws, as amended to date;Amended and Restated Bylaws (the “Bylaws”); and (C) the certificate of designations filed by us with respect to shares of any series of preferred stock which may be issued subsequent to the date of this prospectus (and as described in any applicable prospectus supplement). Copies of each of our restated certificatethe Restated Certificate of incorporationIncorporation and our bylaws, as amended,the Bylaws are filed as exhibits to our Annual Report on Form 10-K.
In addition to the three classes of preferred stock described above, our authorized capital stock consists of:
30,000,000 shares of common stock, par value of $1.00 per share;
| • | | 30,000,000 shares of common stock, par value of $1.00 per share; |
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| • | | 10,000,000 shares of Class B common stock, par value of $1.00 per share; and |
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| • | | 20,000,000 shares of Class C common stock, par value of $1.00 per share. |
20,000,000 shares of Class C common stock, par value of $1.00 per share.
As of November 19, 2008April 30, 2014, we had issued and outstanding: (i) 6,643,6777,141,447 shares of common stock and (ii) 2,499,6522,129,862 shares of Class B common stock. There areAs of the date of this prospectus, there were no outstanding shares of Class C common stock.
stock issued and outstanding.The outstanding shares of common stock and Class B common stock are, and any shares of common stock or Class C common stock offered herebyunder this prospectus will be, upon issuance and payment therefor in accordance with our restated certificatethe Restated Certificate of incorporationIncorporation and as described in the applicable prospectus supplement, fully paid and non-assessable.
Except to the extent otherwise provided by law, holders of common stock, Class B common stock and Class C common stock vote together as a single voting group on any matters brought before our shareholders.stockholders. Holders of common stock are entitled to one (1) vote per share on all such matters, while holders of Class B common stock are entitled to twenty (20) votes per share on all such matters and holders of Class C common stock are entitled to one-twentieth (1/20) vote per share on all such matters. Neither common stock, Class B common stock nor Class C common stock possess any cumulative voting rights under our restated certificatethe Restated Certificate of incorporation.
Incorporation.Under our restated certificatethe Restated Certificate of incorporation,Incorporation, we may not change the relative rights, preferences, privileges, restrictions, dividend rights, voting powers or other powers of the common stock, Class B common stock or Class C common stock without approval by the holders of each class of stock adversely affected thereby (voting as a separate class). Such approval requires the affirmative vote of not less than two-thirds (2/3) of all the votes entitled to be cast by the holders of each such class of stock. In the case, however, of a proposed increase in the authorized number of shares of common stock, Class B common stock or Class C common stock, our restated
15
Preemptive Rights
Generally, holders of the common stock, Class B common stock and Class C common stock do not have any preemptive or other rights to subscribe for additional shares of any class of our capital stock. If, in the future, we take any action that gives such rights to holders of any shares of common stock, Class B common stock or Class C common stock, the terms of such rights will be described in an applicable prospectus supplement.
Our restated certificateThe Restated Certificate of incorporationIncorporation provides that, in the event of our liquidation or dissolution, or a winding up of our affairs, whether voluntary or involuntary, or in the event of our merger or consolidation, no distributions will be made to holders of any class of our common stock until after payment or provision for payment of our debts or liabilities, plus any amounts payable to holders of shares of any then-outstanding class of preferred stock. After the we make such payments (or provisions therefor), holders of the common stock, Class B common stock and Class C common stock would be entitled to share ratably (i.e.(i.e., an equal amount of assets for each share of such stock) in the distribution of our remaining assets.
Shares of common stock and Class C common stock do not possess any conversion rights. Shares of Class B common stock are convertible, at the option of the holder and without the payment of any additional consideration to us, into shares of common stock on a one share for one share basis. Shares of Class B common stock are not convertible into shares of Class C common stock.
Transferability and Public Trading Market
There are no restrictions on the transferability of shares of common stock, Class B common stock or Class C common stock. The common stock currently trades on The NASDAQ Global Select Market under the symbol “COKE”.“COKE.” Neither the Class B common stock nor the Class C common stock is currently listed for trading on any securities exchange or authorized for quotation in an interdealer quotation system of a registered national securities association.
Provision Regarding Redemption or Call of Class C Common Stock.Stock
Our restated certificateThe Restated Certificate of incorporationIncorporation specifically provides that shares of the Class C common stock shall not be made subject to any redemption or call by us.
Stock Splits and Reverse Stock Splits.Splits
Our restated certificateThe Restated Certificate of incorporationIncorporation provides that, except for dividends of our stock, which are governed by the provisions described above, shares of Class B common stock outstanding at any time shall not be split up or subdivided, whether by stock distribution, reclassification, recapitalization or otherwise, so as to increase the number of shares thereof issued and outstanding, unless at the same time the shares of common stock are split up or subdivided in like manner, in order to maintain the same proportionate equity ownership (i.e.(i.e., the same proportion of shares held by each class) between the holders of common stock and Class B common stock as existed on the record date of any such transaction.
Except in the case of dividends of our stock, our restated certificatethe Restated Certificate of incorporationIncorporation also provides that, if shares of common stock and Class B common stock outstanding at any time are split or subdivided, whether by stock distribution, reclassification, recapitalization or otherwise, so as to increase the number of shares thereof issued and outstanding, then the shares of Class C common stock shall be split or subdivided in like manner, in order to maintain the same proportionate equity ownership (i.e.(i.e., the same proportion of shares held by each class)
among the holders of common stock, Class B common stock and Class C common stock as existed on the date prior to such
17
split or subdivision. Similarly, if shares of Class C common stock shall be split or subdivided in any manner, then all other outstanding classes of our common stock shall be proportionately split or subdivided.
In the case of reverse splits, our restated certificatethe Restated Certificate of incorporationIncorporation provides that shares of common stock outstanding at any time shall not be reverse split or combined, whether by reclassification, recapitalization or otherwise, so as to decrease the number of shares thereof issued and outstanding, unless at the same time the shares of Class B common stock are reverse split or combined in like manner in order to maintain the same proportionate ownership between the holders of common stock and Class B common stock as existed on the record date of any such transaction.
Our restated certificateThe Restated Certificate of incorporationIncorporation also provides that if shares of common stock and Class B common stock outstanding at any time are reverse split or combined, whether by reclassification, recapitalization or otherwise, so as to decrease the number of shares thereof issued and outstanding, then the shares of all other classes of our common stock also shall be reverse split or combined in like manner in order to maintain the same proportionate ownership (i.e.(i.e., the same proportion of shares held by each class) between the holders of common stock, Class B common stock and Class C common stock as existed on the date prior to the reverse split or combination. Similarly, if shares of Class C common stock are reverse split or combined in any manner, all other outstanding classes of our common stock shall be proportionately reverse split or combined.
Anti-Takeover Effects of Delaware Law
We are subject to the provisions of Section 203 of the General Corporation Law of the State of Delaware (the “DGCL”) regulating corporate takeovers. In general, Section 203 prohibits a publicly-held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a period of three years following the time that the person became an “interested stockholder,” unless:
before the person became an “interested stockholder,” the board of directors of the corporation approved either the transaction that would result in a business combination or the transaction which resulted in the stockholder becoming an “interested stockholder”;
upon consummation of the transaction which resulted in the stockholder becoming an “interested stockholder,” the “interested stockholder” owned at least 85% of the voting stock of the corporation that was outstanding at the time the transaction commenced. For purposes of determining the number of shares outstanding, shares owned by directors who are also officers of the corporation and shares owned by employee stock plans, in specified instances, are excluded; or
at or after the time the person became an “interested stockholder,” the business combination is approved by the board of directors of the corporation and authorized at an annual or special meeting of the stockholders by the affirmative vote of at least 66 2/3% of the outstanding voting stock which is not owned by the “interested stockholder.”
A “business combination” is defined generally to include mergers or consolidations between a Delaware corporation and an “interested stockholder,” transactions with an “interested stockholder” involving the assets or stock of the corporation or any majority-owned subsidiary, transactions which increase an “interested stockholder’s” percentage ownership of stock of the corporation or any majority-owned subsidiary, and receipt by the “interested stockholder” of various financial benefits provided by or through the corporation or any majority-owned subsidiary. In general, an “interested stockholder” is defined as any person or entity that is the beneficial owner of at least 15% of a corporation’s outstanding voting stock or is an affiliate or associate of the corporation and was the beneficial owner of 15% or more of the outstanding voting stock of the corporation at any time within the three-year period immediately prior to the date of determination if such person is an “interested stockholder.”
A Delaware corporation may opt out of this provision with an express provision in its original certificate of incorporation or an express provision in its certificate of incorporation or bylaws resulting from a stockholders’ amendment approved by at least a majority of the outstanding voting shares. However, we have not opted out of this provision.
PLAN OF DISTRIBUTION
We may sell the securities being offered hereby in one or more of the following ways from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods. We may sell the securities time:
to or through underwriters or dealers, dealers;
through agents,agents; or
directly to one or more purchasers. We may distribute securities from time to time in one or more transactions:
| • | | at a fixed price or prices, which may be changed; |
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| • | | at market prices prevailing at the time of sale; |
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| • | | at prices related to such prevailing market prices; or |
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| • | | at negotiated prices. |
AThe prospectus supplement or supplementswith respect to each offering of securities will describeset forth the specific plan of distribution and the terms of the offering, including:
the names of any underwriters, dealers or agents;
the purchase price or initial public offering price of the securities;
the net proceeds from the sale of the securities;
the use of the net proceeds;
any delayed delivery arrangements;
any underwriting discounts, commissions and other items constituting underwriters’ compensation;
any discounts or concessions allowed or reallowed or paid to dealers; and
any commissions paid to agents.
We may designate agents to solicit purchases for the period of their appointment and to sell securities on a continuing basis, including pursuant to “at the market offerings.”
We may offer these securities to the extent applicable:
| • | | the name or names of any underwriters; |
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| • | | the purchase price of the securities and the proceeds we will receive from the sale; |
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| • | | any over-allotment options under which underwriters may purchase additional securities from us; |
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| • | | any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation; |
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| • | | any public offering price; |
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| • | | any discounts or concessions allowed or reallowed or paid to dealers; and |
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| • | | any securities exchange or market on which the securities may be listed. |
Onlypublic through underwriting syndicates represented by managing underwriters named in the prospectus supplement will beor through underwriters of the securities offered by the prospectus supplement.
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without a syndicate. If underwriters are used,
inwe will enter into an underwriting agreement with the underwriters at the time of the sale
theyof the securities and the securities will
acquirebe acquired by the
securitiesunderwriters for their own
account andaccount. The underwriters may resell the securities
from time to time in one or more
transactions, including negotiated transactions at a fixed public offering price or at varying prices determined at the time of sale.
TheUnless otherwise indicated in the applicable prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to
thecustomary conditions
set forth in the applicable underwriting agreement. We may offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject to certain conditions,precedent and the underwriters will be obligated to purchase all
the offered securities if any of the securities
offered byare purchased. Underwriters may sell securities to or through dealers, and the
prospectus supplement, other than securities covered by any over-allotment option.dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agent. Any
initial public offering price and any discounts or concessions allowed or
reallowedre-allowed or paid to dealers may
changebe changed from time to time.
WeUnderwriters and agents may use underwriters with whom we have a material relationship. We will describe in the prospectus supplement, naming the underwriter, the nature of any such relationship.
We may sell securities directly or through agents we designate from time to
time. Wetime purchase and sell the securities described in this prospectus and the applicable prospectus supplement in the secondary market, but are not obligated to do so. No assurance can be given that there will
namebe a secondary market for the securities or liquidity in the secondary market if one develops. From time to time, underwriters and agents may make a market in the securities.In order to facilitate the offering of the securities, the underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of these securities or any agent involvedother securities the prices of which may be used to determine payments on these securities. Specifically, the underwriters may over-allot in connection with the offering, creating a short position in the debt securities for their own accounts. In addition, to cover over-allotments or to stabilize the price of the securities or of any other securities, the underwriters may bid for, and purchase, the securities or any other securities in the open market. Finally, in any offering of the securities through a syndicate of underwriters, the underwriting syndicate may reclaim selling concessions allowed to an underwriter or a dealer for distributing the securities in the offering, if the syndicate repurchases previously
distributed securities in transactions to cover syndicate short positions, in stabilization transactions or otherwise. Any of these activities may stabilize or maintain the market price of the securities above independent market levels. The underwriters are not required to engage in these activities, and salemay suspend or terminate any of securities and we will describethese activities at any commissions we will pay the agenttime.
Underwriters named in the prospectus supplement. Unless thean applicable prospectus supplement states otherwise, our agent will actare, and dealers and agents named in an applicable prospectus supplement may be, deemed to be “underwriters” within the meaning of the Securities Act in connection with the securities offered thereby, and any discounts or commissions they receive from us and any profit on a best-efforts basis fortheir resale of the period of its appointment.
securities may be deemed to be underwriting discounts and commissions under the Securities Act. We may authorizehave agreements with the underwriters, dealers or agents or underwriters to solicit offers byindemnify them against certain types of institutional investors to purchase securities from us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts in the prospectus supplement.
We may provide agents and underwriters with indemnification against civil liabilities, including liabilities under the Securities Act, or contributionto contribute with respect to payments that thethey may be required to make. Underwriters, dealers or agents or underwritersand their respective affiliates may make with respect to these liabilities. Agents and underwriters maybe customers of, engage in transactions with, or perform services for us or our subsidiaries and affiliates in the ordinary course of business.
AllIf indicated in an applicable prospectus supplement, we may authorize dealers acting as our agents to solicit offers from some institutions to purchase our securities we offer, other than common stock,at the public offering price given in that supplement under “Delayed Delivery Contracts” providing for payment and delivery on the date or dates stated in such supplement. Each contract will be new issuesfor an amount not less than, and the aggregate principal amount of securities with no established trading market. Any underwriters may make a market in these securities, butsold under the contracts will not be obligatedless nor more than, the respective amounts stated in the applicable prospectus supplement. Institutions with whom contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and other institutions, but will in all cases be subject to do so and may discontinueour approval. Contracts will not be subject to any market making at any time without notice. We cannot guarantee conditions except that:
the liquiditypurchase by an institution of the trading marketssecurities covered by its contracts will not at the time of delivery be prohibited under the laws of any jurisdiction in the United States to which such institution is subject, and
if the securities are being sold to underwriters, we will have sold to the underwriters the total principal amount of the securities less the principal amount covered by contracts.
One or more firms, referred to as “remarketing firms,” may also offer or sell the securities, if the applicable prospectus supplement so indicates, in connection with a remarketing arrangement upon their purchase. Remarketing firms will act as principals for any securities.
Any underwriter may engage in over-allotment, stabilizing transactions, short covering transactions and penalty bidstheir own accounts or as agents for us. These remarketing firms will offer or sell the securities in accordance with Regulation Ma redemption or repayment pursuant to the terms of the securities. The applicable prospectus supplement will identify any remarketing firm and the terms of its agreement, if any, with us and will describe the remarketing firm’s compensation. Remarketing firms may be deemed to be underwriters in connection with the securities they remarket. Remarketing firms may be entitled under agreements that may be entered into with us to indemnification by us against and contribution toward certain civil liabilities, including liabilities under the Exchange Act. Over-allotment involves salesSecurities Act and may be customers of, engage in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of the securitieswith or perform services for us or our subsidiaries and affiliates in the open market after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering transaction to cover short positions. Those activities may cause the priceordinary course of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
Any underwriters that are qualified market makers on the NASDAQ Global Select Market may engage in passive market making transactions in the common stock on the NASDAQ Global Select Market in accordance with Rule 103 of Regulation M under the Exchange Act, during the business day prior to the pricing of the offering, before the commencement of offers or sales of the common stock. Passive market makers must comply with applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded. Passive market making may stabilize the market price of the securities at a level above that which might otherwise prevail in the open market and, if commenced, may be discontinued at any time.
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EXPERTS
The consolidated financial statements and management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control over Financial Reporting) incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 30, 2007 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
LEGAL MATTERS
Unless
otherwise indicated in the applicable prospectus supplement,
certain legal matterswe do not expect to apply to list any series of debt securities on a securities exchange.Under Rule 15c6-1 of the Exchange Act, trades in the secondary market generally are required to settle in three business days, unless the parties to any such trade expressly agree otherwise. The applicable prospectus supplement may provide that the original issue date for your securities may be more or less than three scheduled business days after the trade date for your securities.
LEGAL MATTERS
The validity of the securities offered by this prospectus will be passed upon for us by K&L Gates LLP,Moore & Van Allen PLLC, Charlotte, North Carolina. If legal matters in connection with offerings made pursuant to this prospectus are passed upon by counsel for underwriters, dealers or agents, if any, such counsel will be named in the prospectus supplement relating to such offering.
20EXPERTS
The consolidated financial statements and management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control over Financial Reporting) incorporated in this prospectus by reference to the Company’s Annual Report on Form 10-K for the year ended December 29, 2013 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-3 relating to the securities covered by this prospectus. This prospectus is a part of the registration statement and does not contain all the information in the registration statement. Any statement made by us in this prospectus concerning a contract, agreement or other document of ours is not necessarily complete, and you should read the documents that are filed as exhibits to the registration statement and the documents that we reference below under the caption “Information Incorporated by Reference” for a more complete understanding of the contract, agreement or other document. Each such statement is qualified in all respects by reference to the contract, agreement or other document to which it refers.
We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any document we file at the SEC’s Public Reference Room located at 100 F. Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. Our SEC filings are also available to the public on the SEC’s web site athttp://www.sec.gov and at the offices of the NASDAQ Global Select Market located at 1735 K. Street, N.W., Washington, D.C. 20006.
We make available free of charge through our web site athttp://www.cokeconsolidated.com copies of the reports, proxy statements and other information we file with the SEC. The information on our web site is not a part of this prospectus or any applicable prospectus supplement.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to “incorporate by reference” information in this prospectus and any prospectus supplement, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be part of this prospectus and any prospectus supplement, and information that we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below that we previously filed with the SEC and any future filings we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering of the securities described in this prospectus (other than, in each case, documents or information deemed to have been furnished and not filed with the SEC):
(1) our Annual Report on Form 10-K for the fiscal year ended December 29, 2013;
(2) our Quarterly Report on Form 10-Q for the quarter ended March 30, 2014;
(3) our Current Report on Form 8-K filed on May 9, 2014; and
(4) the description of our common stock contained in our registration statement on Form 8-A, filed with the SEC on January 29, 1973, including any amendment or report filed for the purpose of updating such description.
Any statement contained in any document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this prospectus or any prospectus supplement to the extent that a statement contained in this prospectus or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this prospectus modifies or supersedes such earlier statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We will provide without charge to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, upon written or oral request of any such person, a copy of any or all of the information that has been incorporated by reference in this prospectus but not delivered with the prospectus, excluding exhibits to a document unless an exhibit has been specifically incorporated by reference in that document. Such requests should be directed to the attention of our Corporate Secretary at the following address and telephone number:
Coca-Cola Bottling Co. Consolidated
4100 Coca-Cola Plaza
Charlotte, North Carolina 28211
Telephone: (704) 557-4400
Prospectus
COCA-COLA BOTTLING CO. CONSOLIDATED
$500,000,000
Debt Securities
Preferred Stock
Common Stock
Class C Common Stock
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| | |
| Item 14. | | Other Expenses of Issuance and Distribution.Distribution |
The following table sets forth estimatedthe expenses, other than underwriting discounts and commissions, to be incurred by the registrant in connection with the issuance and distribution of the securities being registered other than underwriting discountsunder this registration statement. All the expenses, with the exception of the Securities and commissions.
| | | | | |
| SEC registration fee | | $ | 11,790 | |
| Rating agency fees | | | * | |
| Printing, engraving and postage expenses | | | * | |
| Legal fees | | | * | |
| Accounting fees | | | * | |
| Trustee’s fees and expenses | | | * | |
| Miscellaneous expenses | | | * | |
| | | | |
| Total | | | * | |
| | | | |
Exchange Commission registration fee, are estimates. | | | | |
Securities and Exchange Commission registration fee | | $ | 64,400 | |
Legal fees and expenses | | | * | |
Accounting fees and expenses | | | * | |
Printing fees | | | * | |
Rating agency fees | | | * | |
Trustee’s fees and expenses | | | * | |
Miscellaneous | | | * | |
| | | | |
Total | | | * | |
| | | | |
| * | | These fees and expenses will be dependent on the types of securities offered and number of offerings and, therefore, cannot be estimated at this time. |
| | |
| Item 15. | | Indemnification of Directors and Officers |
The Company’s bylaws provide thatregistrant is a corporation organized under the Company shall indemnify its officers and directors tolaws of the fullest extent permitted by the Delaware General Corporation Law (the “DGCL”).
State of Delaware. Section 145 of the
DGCL, permitsGeneral Corporation Law of the
Company toState of Delaware (the “DGCL”) provides that a corporation may indemnify any person
liable by reason of the fact that hewho was or is a party
to, or is threatened to be made
or was a party to
aany threatened, pending or completed
administrative, investigative, civil or criminal action, suit or proceeding,
(includingwhether civil, criminal, administrative or investigative, other than an action by or in the right of the
Company)corporation, by reason of the fact that
hesuch person is or was a director, officer, employee or agent of the
Companycorporation, or is or was serving at the request of the
Companycorporation as a director, officer, employee or agent of another
company,corporation, partnership, joint venture, trust or
“other enterprise”other enterprise, against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement
he actually and reasonably incurred
by such person in connection with such
an action, suit or proceeding, if
hesuch person acted in good faith and in a manner
hesuch person reasonably believed to be in or not opposed to the best interests of the
Company (and, in the case of acorporation, and, with respect to any criminal action or proceeding, had no
reasonreasonable cause to believe
hissuch person’s conduct was
unlawful). Inunlawful, except that, in the case of an action by or in the right of the
Company,corporation, no indemnification
is generally limited to attorneys’ fees and other expenses and is not available withmay be made in respect
toof any claim, issue or matter as to which
thesuch person
wasis adjudged
to be liable to the
Companycorporation, unless
and only to the extent that the Court of Chancery or the court
in which such action or suit was brought determines
upon application that,
hedespite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court deems proper. The registrant’s Amended and Restated Bylaws provide that the registrant will indemnify its directors and officers to the fullest extent permitted by law.Section 102(b)(7) of the DGCL permits a corporation to include a provision in its certificate of incorporation eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, provided that such provision shall not eliminate or limit the court shall deem proper.
Expenses incurred byliability of a director (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) for unlawful payment of dividends or purchase or redemption of shares; or (iv) for any transaction from which the director derived an
officer or director in defending an action, suit or proceeding may be paidimproper personal benefit. The registrant’s Restated Certificate of Incorporation contains a provision which eliminates the personal liability of the registrant’s directors for monetary damages for breaches of fiduciary duties to the fullest extent permitted by the
Company in advanceDGCL.II-1
Section 145 of the final disposition of such an action, suit or proceeding if the officer or director agrees to repay such amount in the event it is determined that he was not entitled to it.
Section 145DGCL also permits the Companya corporation to purchase and maintain insurance on behalf of any person who is or was ana director, officer, director, employee or agent of the corporation, or is or was serving at the request of the corporation as described abovea director, officer, employee or agent of another entity, whether or not the Companycorporation would have the power to indemnify such person against such liability under Section 145. The Company currentlyregistrant’s Amended and Restated Bylaws permit the registrant to maintain insurance on behalf of any director or officer for any liability arising out of his or her actions in connection with their services to the registrant. The registrant maintains such policiesdirectors’ and officers’ liability insurance for its directors and officers.
The Company’s Restated Certificate of Incorporation contains a provision which eliminates,underwriting, distribution or similar agreements filed or to the fullest extent permitted under Section 102(b)(7)be filed as exhibits to this registration statement will contain provisions regarding indemnification of the DGCL,registrant’s directors and officers against certain liabilities, including liabilities under the personal liabilitySecurities Act of the Company’s directors. Section 102(b)(7) provides that a director’s personal liability may not be eliminated: (i) for any matter in respect of which such director shall be liable under Section 174 of the Delaware General Corporation Law (relating to, among other things, willful or negligent payment of prohibited dividends); (ii) for any breach of his duty of loyalty to the Company or its stockholders; (iii) for acts or omissions not in good faith or which involve intentional misconduct or
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a knowing violation of law; or (iv) for any transactions from which the director derived an improper personal benefit.
See the Exhibit“Exhibit Index,” which follows the signature pages to this registration statement and is herein incorporated herein by reference.
The undersigned registrant hereby undertakes:
(1) toTo file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SECCommission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that subparagraphsparagraphs (i), (ii) and (iii) of this sectionabove do not apply if the information required to be included in a post-effective amendment by those subparagraphsparagraphs is contained in reports filed with or furnished to the SECCommission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of thisthe registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initialbona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
II-2
(4) That, for the purpose of determining any liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and
II-2
any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initialbona fide offering thereof.Provided, however,, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
The undersigned registrant hereby undertakes that,(6) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initialbona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SECSecurities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or
II-3
proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes:
(1) That, for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this registration statement as of the time it was declared effective.
II-3
II-4
SIGNATURES
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Charlotte, State of North Carolina, on November 24, 2008.
May 13, 2014. | | | | |
| COCA-COLA BOTTLING CO. CONSOLIDATED
|
| |
| By: | |
| By: | /s/James E. Harris | |
| | James E. Harris | |
| | Senior Vice President, Shared Services and
|
| | Chief Financial Officer | |
|
SIGNATURES AND
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS,, that each person whose signature appears below constitutes and appoints each of James E. Harris, Clifford M. Deal, III and William J. Billiard severally, his or her true and lawful attorney-in-fact and agent, each with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including pre- and post-effective amendments) and supplements to this registration statement and any subsequent registration statements pursuant to Rule 462 of the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as any of them might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes or substitute, may lawfully do or cause to be done by virtue hereof. This power of attorney may be executed in counterparts.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the datedates indicated.
| | | | |
Signature | | Title | | Date |
Signature | | Title | | Date |
/s/J. Frank Harrison, III J. Frank Harrison, III | | Chairman of the Board of Directors,
Chief Executive Officer and Director
(Principal Executive Officer) | | November 24, 2008May 13, 2014 |
| | |
/s/H. W. H.W. McKay Belk H. W.H.W. McKay Belk | | Director | | November 24, 2008May 13, 2014 |
| | |
/s/Sharon A. Decker Sharon A. Decker Alexander B. Cummings, Jr.Alexander B. Cummings, Jr. | | Director | | November 24, 2008May 13, 2014 |
/s/William B. ElmoreWilliam B. Elmore | | President, Chief Operating Officer and Director | | November 24, 2008 |
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| | | | |
Signature | | Title | | Date |
/s/Henry W. Flint Henry W. Flint | | Vice Chairman of the Board and Director | | November 24, 2008 |
/s/Deborah H. EverhartDeborah H. Everhart Sharon A. DeckerSharon A. Decker | | Director | | November 24, 2008May 13, 2014 |
| | |
/s/Ned R. McWherter Ned R. McWherter William B. ElmoreWilliam B. Elmore | | Director | | November 24, 2008May 13, 2014 |
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| | | | |
Signature | | Title | | Date |
| | |
/s/James Morgan H. Everett Morgan James H. MorganEverett | | Director | | November 24, 2008May 13, 2014 |
| | |
/s/John W. Murrey, III John W. Murrey, III Deborah H. EverhartDeborah H. Everhart | | Director | | November 24, 2008May 13, 2014 |
| | |
/s/Carl Ware Carl Ware Henry W. FlintHenry W. Flint | | Director | | November 24, 2008May 13, 2014 |
| | |
/s/Dennis A. Wicker Dennis A. Wicker William H. JonesWilliam H. Jones | | Director | | November 24, 2008May 13, 2014 |
| | |
/s/ James H. Morgan James H. Morgan | | Director | | May 13, 2014 |
| | |
/s/ John W. Murrey, III John W. Murrey, III | | Director | | May 13, 2014 |
| | |
/s/ Dennis A. Wicker Dennis A. Wicker | | Director | | May 13, 2014 |
| | |
/s/ James E. Harris James E. Harris | | Senior Vice President, Shared Services and Chief Financial Officer (Principal Financial Officer) | | November 24, 2008May 13, 2014 |
| | |
/s/William J. Billiard William J. Billiard | | Vice President, Controller and Chief Accounting Officer and Corporate Controller (Principal Accounting Officer) | | November 24, 2008May 13, 2014 |
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EXHIBIT INDEX
| | |
Exhibit
Number | | | | Description |
Exhibit | | |
Number | | Description |
| | | | |
| 1.1* | | | Form of Underwriting Agreement.Agreement |
| |
4.1 | | Restated Certificate of Incorporation of Coca-Cola Bottling Co. Consolidated (incorporated by reference to Exhibit 3.1 to the Quarterly Report on Form 10-Q for the quarter ended June 29, 2003) |
| |
4.2 | | Amended and Restated Bylaws of Coca-Cola Bottling Co. Consolidated (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed on December 10, 2007) |
| 4.1 |
4.3 | | Supplemental Indenture (amending, supplementing and restating in its entirety the Indenture, dated as of July 20, 1994, between Coca-Cola Bottling Co. Consolidated and NationsBank of Georgia, National Association), dated as of March 3, 1995, between the CompanyCoca-Cola Bottling Co. Consolidated and The Bank of New York Mellon Trust Company, N.A. (as successor in interest to NationsBank of Georgia, National Association and Citibank, N.A.), as trustee (the “Indenture”) (incorporated by reference to Exhibit 4.2 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 29, 2002, File No. 0-9286).2002) |
| | | | |
| 4.2* | 4.4* | | Form of Debt Securities.Securities |
| |
4.5* | | | | |
| 4.3* | | | Form of Certificate of Designations, Preferences, Rights and Limitations relating to Preferred Stock.Stock |
| | | | |
| 4.4* | 4.6* | | Form of Preferred Stock Certificate.Certificate |
| | | | |
| 4.5 | 4.7 | | Specimen of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-1 No. 2-97822 filed on May 31, 1985). |
| | | | |
| 4.6* | 4.8* | | Form of Class C Common Stock Certificate.Certificate |
| | | | |
| 5 | 5.1** | | Opinion of K&L Gates LLP (filed herewith).Moore & Van Allen PLLC |
| | | | |
| 12 | 12.1** | | Computation of Ratio of Earnings to Fixed Charges (filed herewith). |
| | | | |
| 23.1 | | | Consent of K&L Gates LLP (included in Exhibit 5). |
| | | | |
| 23.2 | 23.1** | | Consent of PricewaterhouseCoopers LLP (filed herewith). |
| |
23.2** | | | | Consent of Moore & Van Allen PLLC (included in Exhibit 5.1) |
| 24 |
24.1** | | Power of Attorney (included in signature page of this registration statement).pages) |
| |
25.1** | | | | |
| 25 | | | Form T-1 Statement of Eligibility and Qualification of the Trusteeon Form T-1 under the Trust Indenture Act of 1939, (filed herewith).as amended, of The Bank of New York Mellon Trust Company, N.A., as trustee, under the Indenture |
| | |
| * | | To be filed, if necessary, by amendment or as an exhibit to a Current Report on Form 8-K and incorporated by reference herein. |
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