Exhibit 2
Working Translation Only
Control and Profit and Loss Transfer Agreement
between
Coca-Cola GmbH, registered in the commercial register of the local court of
Essen under HRB 527,
(hereinafter referred to as "CC GmbH"),
and
Coca-Cola Erfrischungsgetraenke AG, registered in the commercial register of the
local court of Berlin-Charlottenburg under HRB 62845,
(hereinafter referred to as "CCE AG").
Preamble
Within the framework of the restructuring of the German Coca-Cola system, an
increased regionalisation of the German Coca-Cola organisation shall be
achieved. By maintaining a multitude of bottlers the position of CCE AG within
the German bottlers shall also be changed. In view of this, CC GmbH and CCE AG
agree the following:
[Section] 1 Management
1.1 CCE AG submits itself to the control of CC GmbH. CC GmbH is accordingly
entitled to issue instructions to the board of directors of CCE AG
regarding the management of CCE AG's business.
1.2 Instructions regarding management measures which require the consent of CCE
AG's supervisory board have to be issued in writing, per telecopy or per
e-mail.
[Section] 2 Transfer of Profits
2.1 For the term of this Agreement CCE AG is obliged to transfer to CC GmbH its
entire profit. Subject to the formation or withdrawal of reserves according
to [Section] 2.2, profit is considered
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to be the annual net income accruing before any profit has been transferred
minus any accumulated losses brought forward from the preceding year and
minus the amount to be transferred to the legal reserve pursuant to
[Section] 300 AktG.
2.2 With the consent of CC GmbH, CCE AG may transfer amounts from the annual
net income to other revenue reserves, provided that this is permissible
under commercial law and justified according to reasonable commercial
judgement. If amounts have been transferred to other revenue reserves
throughout the duration of this Agreement pursuant to [Section] 272 para. 3
HGB (hereinafter referred to as "Other Revenue Reserves") and/or to capital
reserves from additional payments of CC GmbH pursuant to [Section] 272
para. 2 no. 4 HGB (hereinafter referred to as "Capital Reserves from
Additional Payments"), these amounts shall be with- drawn on CC GmbHs
demand and shall be used for the compensation of the annual deficit or
shall be transferred as profit. Other Revenue Reserves and Capital Reserves
from Additional Payments which were generated before the commencement of
this Agreement may not be transferred as profit.
2.3 The obligation to transfer profits applies for the first time to the entire
profit of the financial year beginning on 1 January 2002.
[Section] 3 Assumption of Losses
CC GmbH is obliged to compensate any annual net loss accruing during the
term of this Agreement to the extent that such loss is not compensated by
withdrawing amounts from the Other Revenue Reserves and/or Capital Reserves
from Additional Payments that were transferred to such reserves during the
term of this Agreement. Losses having occurred before the commencement of
this Agreement are not assumed.
[Section] 4 Compensation pursuant to [Section] 304 AktG
4.1 CC GmbH guarantees to all other shareholders of CCE AG (hereinafter
referred to as "Remaining Shareholders of CCE AG") as reasonable
compensation for every full financial year of CCE AG and for each no par
value share in CCE AG the payment of EUR 0.76. The payment of the
compensation is due on the day after the annual general meeting of CCE AG
in which the board of directors submits the adopted annual financial
statement for the previous financial year or in which the adoption of the
annual financial statement for the previous financial year is resolved.
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4.2 The compensation payment shall be made for the first time for the full
financial year of CCE AG beginning on 1 January 2002. If the financial year
of CCE AG is changed during the term of this Agreement, on a prorated
basis. However, the compensation shall not be reduced if this Agreement
ends during a financial year of CCE AG.
4.3 The compensation payment shall be received by those Remaining Shareholders
of CCE AG who are shareholders of CCE AG at the time the compensation
payment becomes due. To the extent that a remaining shareholder of CCE AG
will transfer its shares to CC GmbH or to an enterprise to be designated by
CC GmbH with effect as per 31 December 2006, 24.00 hours, in accordance
with [Section] 6, he shall still receive the full compensation payment for
the financial year 2006. To the extent that a remaining shareholder will
transfer its shares to CC GmbH or to an enterprise to be designated by CC
GmbH with effect as per 31 December 2005, 24.00 hours, in accordance with
[Section] 6, he shall receive the full compensation payment for all
financial years until 31 December 2005 provided that he will assign to CC
GmbH his prospective claims for payment of a dividend against CCE AG for
the financial years until 31 December 2005.
4.4 In the case of an increase of the share capital of CCE AG from the
company's own reserves, the total amount of the compensation to be paid to
all Remaining Shareholders of CCE AG shall remain unchanged and the
compensation amount to be paid on each share shall be decreased
proportionally.
4.5 In the case of an increase of the share capital of CCE AG by way of
contribution, the compensation shall also be paid on the new shares,
provided these are taken over by Remaining Shareholders of CCE AG.
4.6 In the case of a reduction of the share capital of CCE AG in order to
balance losses having occurred before the commencement of this Agreement,
the total amount of the compensation to be paid to all Remaining
Shareholders of CCE AG shall remain unchanged and the compensation amount
to be paid on each share shall be increased proportionally.
4.7 If the share capital of CCE AG is divided anew in such way that new shares
are issued while the amount of the share capital remains unchanged, whereby
the prorated amount of the share capital attributable to each share is
reduced (share-split), the total amount of the compensation to be paid to
all Remaining Shareholders of CCE AG shall remain unchanged
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and the compensation amount to be paid on each share shall be reduced
proportionally.
[Section] 5 Effectiveness and Duration
5.1 This Agreement is concluded subject to the condition precedent that the
consent of the general meeting of CCE AG and the shareholders' meeting of
CC GmbH is given.
5.2 This Agreement is subject to the condition precedent that the competent
cartel office does not prohibit the merger within in statutory time periods
or states that the merger will not be prohibited.
5.3 This Agreement shall become effective upon registration in the commercial
register of CCE AG. To the extent legally permissible, the Agreement shall
commence on 1 January 2002, 0.00 hours, and end on 31 December 2006, 24.00
hours. This Agreement can be terminated by CC GmbH on nine months' written
notice as per the end of the calendar year, for the first time as per 31
December 2004, 24.00 hours.
5.4 The right to terminate this Agreement for cause without notice of
termination remains unaffected.
[Section] 6 Share Value Guarantee
6.1 Each remaining shareholder shall have the right to irrevocably offer CC
GmbH (in the sense of a genuine agreement in favour of a third party), by
means of a written declaration which has to correspond to the declaration
contained in the Appendix to this Agreement, to sell and transfer all or a
certain number of its shares in CCE AG to CC GmbH or to an enterprise to be
designated by CC GmbH for a cash consideration of EUR 16.87 for each share
with effect as per 31 December 2006, 24.00 hours ("Offer").
6.2 The Offer has to remain open until 31 December 2006, 24.00 hours, and must
be received by CC GmbH by 31 October 2006 at the latest.
6.3 Other and/or further conditions and/or limitations in time must not be
included in the Offer. Share certificates, dividend coupons and renewal
coupons have to be enclosed with the Offer,
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to the extent that such certificates and/or coupons have been issued to the
remaining shareholder.
6.4 If the Offer, together with the share certificates, dividend coupons and
renewal coupons, is received by CC GmbH in time, CC GmbH is obliged to
either accept the Offer within the time period set itself or to cause an
enterprise designated by it to accept the Offer. If CC GmbH causes an
enterprise designated by it to accept the Offer, CC GmbH shall guarantee by
means of a directly enforceable guarantee that all obligations of the
enterprise designated by it are fulfilled under this Agreement.
6.5 The purchase price is payable within one week after the transfer has become
effective.
6.6 If this Agreement is terminated by CC GmbH prior to 31 December 2006, 24.00
hours, the provisions of this [Section] 6 apply accordingly provided that
CC GmbH has to been offered to sell and transfer the shares in CCE AG as
per 31 December 2005, 24.00 hours, and that the Offer must be received by
CC GmbH within six weeks after the day on which the Remaining Shareholders
of CCE AG have been notified of the end of this Agreement to the addresses
of the respective recipients last communicated in writing and has to remain
open for twelve weeks after this date. The notification of the managing
director of Norddeutscher Pool GbR last communicated to CC GmbH in writing
replaces the notification of those Remaining Shareholders of CCE AG who are
shareholders in Norddeutscher Pool GbR.
[Section] 7 Final Provisions
7.1 This Agreement contains the entire agreement between CC GmbH and CCE AG.
There are no side agreements.
7.2 Amendments and supplements to this Agreement must be in writing, require
the consent of the general meeting of CCE AG and the shareholders' meeting
of CC GmbH, and shall become effective on registration in the commercial
register. [Section] 295 para. 2 AktG remains unaffected.
7.3 Should any of the provisions of this Agreement be or become invalid or
impracticable as a whole or in part or should a gap in this Agreement
become evident, this shall not affect the validity of the remaining
provisions. In place of the provision which is invalid or impracticable or
in order to fill the gap, CC GmbH and CCE AG shall agree on an appropriate
pro-
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vision which, to the extent legally permissible, most closely reflects what
CC GmbH and CCE AG intended or what they would have intended, in light of
the sense and purpose of this Agreement, had they considered the point on
conclusion of this Agreement.
7.4 This Agreement shall be governed by German law. The German version shall
prevail.
7.5 The court of jurisdiction for disputes between CC GmbH and CCE AG under or
in relation to this Agreement is Essen.
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Essen, ............2001 Berlin,............. 2001
-------------------------------- -----------------------------------
(Coca-Cola GmbH) (Coca-Cola Erfrischungsgetraenke AG)
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Coca-Cola GmbH
Max-Keith-Strasse 66
45136 Essen
Offer according to Section 6 of the Control and Profit and Loss Transfer
Agreement between Coca-Cola GmbH and Coca-Cola Erfrischungsgetraenke AG
Dear Sir or Madam:
I, [complete name of the shareholder], hereby irrevocably offer Coca-Cola GmbH
to sell and transfer [number] no par value shares of Coca-Cola
Erfrischungsgetraenke AG of the class [class (es) of shares] having the share
numbers [share numbers] (hereinafter referred to as "Shares") to Coca-Cola GmbH
or an enterprise to be designated by Coca-Cola GmbH for a cash consideration of
EUR 16.87 for each share with effect as per 31 December [2006], 24.00 hours. To
the extent that I have received share certificates, dividend coupons and renewal
coupons I enclose these with this offer.
I represent that I am the sole legal and economic owner of the Shares, that I am
not restricted to dispose of the Shares subject to the possibly necessary
approval of Coca-Cola Erfrischungsgetraenke AG and that the Shares are not
encumbered with any rights of third parties. Any further liability is excluded.
My offer remains open until 31 December [2006], 24.00 hours. In accordance with
Section 151 sentence 1 German civil Code I waive the right to receive the
declaration of acceptance.
I instruct Coca-Cola GmbH or the enterprise to be designated by Coca-Cola GmbH
to transfer the purchase price, which is payable within one week after the
transfer has become effective, to my account, account number [number], with the
[bank], bank sorting code [bank sorting code].
Yours sincerely
----------------------------------
[Complete name of the shareholder]
Working Translation Only
Control and Profit and Loss Transfer Agreement
between
Coca-Cola GmbH, registered in the commercial register of the local court of
Essen under HRB 527,
(hereinafter referred to as "CC GmbH"),
and
Coca-Cola Erfrischungsgetraenke AG, registered in the commercial register of the
local court of Berlin-Charlottenburg under HRB 62845,
(hereinafter referred to as "CCE AG").
Preamble
Within the framework of the restructuring of the German Coca-Cola system, an
increased regionalisation of the German Coca-Cola organisation shall be
achieved. By maintaining a multitude of bottlers the position of CCE AG within
the German bottlers shall also be changed. In view of this, CC GmbH and CCE AG
agree the following:
[Section] 1 Management
1.1 CCE AG submits itself to the control of CC GmbH. CC GmbH is accordingly
entitled to issue instructions to the board of directors of CCE AG
regarding the management of CCE AG's business.
1.2 Instructions regarding management measures which require the consent of CCE
AG's supervisory board have to be issued in writing, per telecopy or per
e-mail.
[Section] 2 Transfer of Profits
2.1 For the term of this Agreement CCE AG is obliged to transfer to CC GmbH its
entire profit. Subject to the formation or withdrawal of reserves according
to [Section] 2.2, profit is considered
Working Translation Only
-2-
to be the annual net income accruing before any profit has been transferred
minus any accumulated losses brought forward from the preceding year and
minus the amount to be transferred to the legal reserve pursuant to
[Section] 300 AktG.
2.2 With the consent of CC GmbH, CCE AG may transfer amounts from the annual
net income to other revenue reserves, provided that this is permissible
under commercial law and justified according to reasonable commercial
judgement. If amounts have been transferred to other revenue reserves
throughout the duration of this Agreement pursuant to [Section] 272 para. 3
HGB (hereinafter referred to as "Other Revenue Reserves") and/or to capital
reserves from additional payments of CC GmbH pursuant to [Section] 272
para. 2 no. 4 HGB (hereinafter referred to as "Capital Reserves from
Additional Payments"), these amounts shall be with- drawn on CC GmbHs
demand and shall be used for the compensation of the annual deficit or
shall be transferred as profit. Other Revenue Reserves and Capital Reserves
from Additional Payments which were generated before the commencement of
this Agreement may not be transferred as profit.
2.3 The obligation to transfer profits applies for the first time to the entire
profit of the financial year beginning on 1 January 2002.
[Section] 3 Assumption of Losses
CC GmbH is obliged to compensate any annual net loss accruing during the
term of this Agreement to the extent that such loss is not compensated by
withdrawing amounts from the Other Revenue Reserves and/or Capital Reserves
from Additional Payments that were transferred to such reserves during the
term of this Agreement. Losses having occurred before the commencement of
this Agreement are not assumed.
[Section] 4 Compensation pursuant to [Section] 304 AktG
4.1 CC GmbH guarantees to all other shareholders of CCE AG (hereinafter
referred to as "Remaining Shareholders of CCE AG") as reasonable
compensation for every full financial year of CCE AG and for each no par
value share in CCE AG the payment of EUR 0.76. The payment of the
compensation is due on the day after the annual general meeting of CCE AG
in which the board of directors submits the adopted annual financial
statement for the previous financial year or in which the adoption of the
annual financial statement for the previous financial year is resolved.
Working Translation Only
-3-
4.2 The compensation payment shall be made for the first time for the full
financial year of CCE AG beginning on 1 January 2002. If the financial year
of CCE AG is changed during the term of this Agreement, on a prorated
basis. However, the compensation shall not be reduced if this Agreement
ends during a financial year of CCE AG.
4.3 The compensation payment shall be received by those Remaining Shareholders
of CCE AG who are shareholders of CCE AG at the time the compensation
payment becomes due. To the extent that a remaining shareholder of CCE AG
will transfer its shares to CC GmbH or to an enterprise to be designated by
CC GmbH with effect as per 31 December 2006, 24.00 hours, in accordance
with [Section] 6, he shall still receive the full compensation payment for
the financial year 2006. To the extent that a remaining shareholder will
transfer its shares to CC GmbH or to an enterprise to be designated by CC
GmbH with effect as per 31 December 2005, 24.00 hours, in accordance with
[Section] 6, he shall receive the full compensation payment for all
financial years until 31 December 2005 provided that he will assign to CC
GmbH his prospective claims for payment of a dividend against CCE AG for
the financial years until 31 December 2005.
4.4 In the case of an increase of the share capital of CCE AG from the
company's own reserves, the total amount of the compensation to be paid to
all Remaining Shareholders of CCE AG shall remain unchanged and the
compensation amount to be paid on each share shall be decreased
proportionally.
4.5 In the case of an increase of the share capital of CCE AG by way of
contribution, the compensation shall also be paid on the new shares,
provided these are taken over by Remaining Shareholders of CCE AG.
4.6 In the case of a reduction of the share capital of CCE AG in order to
balance losses having occurred before the commencement of this Agreement,
the total amount of the compensation to be paid to all Remaining
Shareholders of CCE AG shall remain unchanged and the compensation amount
to be paid on each share shall be increased proportionally.
4.7 If the share capital of CCE AG is divided anew in such way that new shares
are issued while the amount of the share capital remains unchanged, whereby
the prorated amount of the share capital attributable to each share is
reduced (share-split), the total amount of the compensation to be paid to
all Remaining Shareholders of CCE AG shall remain unchanged
Working Translation Only
-4-
and the compensation amount to be paid on each share shall be reduced
proportionally.
[Section] 5 Effectiveness and Duration
5.1 This Agreement is concluded subject to the condition precedent that the
consent of the general meeting of CCE AG and the shareholders' meeting of
CC GmbH is given.
5.2 This Agreement is subject to the condition precedent that the competent
cartel office does not prohibit the merger within in statutory time periods
or states that the merger will not be prohibited.
5.3 This Agreement shall become effective upon registration in the commercial
register of CCE AG. To the extent legally permissible, the Agreement shall
commence on 1 January 2002, 0.00 hours, and end on 31 December 2006, 24.00
hours. This Agreement can be terminated by CC GmbH on nine months' written
notice as per the end of the calendar year, for the first time as per 31
December 2004, 24.00 hours.
5.4 The right to terminate this Agreement for cause without notice of
termination remains unaffected.
[Section] 6 Share Value Guarantee
6.1 Each remaining shareholder shall have the right to irrevocably offer CC
GmbH (in the sense of a genuine agreement in favour of a third party), by
means of a written declaration which has to correspond to the declaration
contained in the Appendix to this Agreement, to sell and transfer all or a
certain number of its shares in CCE AG to CC GmbH or to an enterprise to be
designated by CC GmbH for a cash consideration of EUR 16.87 for each share
with effect as per 31 December 2006, 24.00 hours ("Offer").
6.2 The Offer has to remain open until 31 December 2006, 24.00 hours, and must
be received by CC GmbH by 31 October 2006 at the latest.
6.3 Other and/or further conditions and/or limitations in time must not be
included in the Offer. Share certificates, dividend coupons and renewal
coupons have to be enclosed with the Offer,
Working Translation Only
-5-
to the extent that such certificates and/or coupons have been issued to the
remaining shareholder.
6.4 If the Offer, together with the share certificates, dividend coupons and
renewal coupons, is received by CC GmbH in time, CC GmbH is obliged to
either accept the Offer within the time period set itself or to cause an
enterprise designated by it to accept the Offer. If CC GmbH causes an
enterprise designated by it to accept the Offer, CC GmbH shall guarantee by
means of a directly enforceable guarantee that all obligations of the
enterprise designated by it are fulfilled under this Agreement.
6.5 The purchase price is payable within one week after the transfer has become
effective.
6.6 If this Agreement is terminated by CC GmbH prior to 31 December 2006, 24.00
hours, the provisions of this [Section] 6 apply accordingly provided that
CC GmbH has to been offered to sell and transfer the shares in CCE AG as
per 31 December 2005, 24.00 hours, and that the Offer must be received by
CC GmbH within six weeks after the day on which the Remaining Shareholders
of CCE AG have been notified of the end of this Agreement to the addresses
of the respective recipients last communicated in writing and has to remain
open for twelve weeks after this date. The notification of the managing
director of Norddeutscher Pool GbR last communicated to CC GmbH in writing
replaces the notification of those Remaining Shareholders of CCE AG who are
shareholders in Norddeutscher Pool GbR.
[Section] 7 Final Provisions
7.1 This Agreement contains the entire agreement between CC GmbH and CCE AG.
There are no side agreements.
7.2 Amendments and supplements to this Agreement must be in writing, require
the consent of the general meeting of CCE AG and the shareholders' meeting
of CC GmbH, and shall become effective on registration in the commercial
register. [Section] 295 para. 2 AktG remains unaffected.
7.3 Should any of the provisions of this Agreement be or become invalid or
impracticable as a whole or in part or should a gap in this Agreement
become evident, this shall not affect the validity of the remaining
provisions. In place of the provision which is invalid or impracticable or
in order to fill the gap, CC GmbH and CCE AG shall agree on an appropriate
pro-
Working Translation Only
-6-
vision which, to the extent legally permissible, most closely reflects what
CC GmbH and CCE AG intended or what they would have intended, in light of
the sense and purpose of this Agreement, had they considered the point on
conclusion of this Agreement.
7.4 This Agreement shall be governed by German law. The German version shall
prevail.
7.5 The court of jurisdiction for disputes between CC GmbH and CCE AG under or
in relation to this Agreement is Essen.
Working Translation Only
-7-
Essen, ............2001 Berlin,............. 2001
-------------------------------- -----------------------------------
(Coca-Cola GmbH) (Coca-Cola Erfrischungsgetraenke AG)
Working Translation Only
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Coca-Cola GmbH
Max-Keith-Strasse 66
45136 Essen
Offer according to Section 6 of the Control and Profit and Loss Transfer
Agreement between Coca-Cola GmbH and Coca-Cola Erfrischungsgetraenke AG
Dear Sir or Madam:
I, [complete name of the shareholder], hereby irrevocably offer Coca-Cola GmbH
to sell and transfer [number] no par value shares of Coca-Cola
Erfrischungsgetraenke AG of the class [class (es) of shares] having the share
numbers [share numbers] (hereinafter referred to as "Shares") to Coca-Cola GmbH
or an enterprise to be designated by Coca-Cola GmbH for a cash consideration of
EUR 16.87 for each share with effect as per 31 December [2006], 24.00 hours. To
the extent that I have received share certificates, dividend coupons and renewal
coupons I enclose these with this offer.
I represent that I am the sole legal and economic owner of the Shares, that I am
not restricted to dispose of the Shares subject to the possibly necessary
approval of Coca-Cola Erfrischungsgetraenke AG and that the Shares are not
encumbered with any rights of third parties. Any further liability is excluded.
My offer remains open until 31 December [2006], 24.00 hours. In accordance with
Section 151 sentence 1 German civil Code I waive the right to receive the
declaration of acceptance.
I instruct Coca-Cola GmbH or the enterprise to be designated by Coca-Cola GmbH
to transfer the purchase price, which is payable within one week after the
transfer has become effective, to my account, account number [number], with the
[bank], bank sorting code [bank sorting code].
Yours sincerely
----------------------------------
[Complete name of the shareholder]