S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on February 22, 2002
As filed with the Securities and Exchange Commission on February 22, 2002
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
THE COCA-COLA COMPANY
(Exact name of registrant as specified in its charter)
Delaware 58-0628465
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Coca-Cola Plaza
Atlanta, Georgia 30313
(Address, including zip code, of principal executive offices)
The Coca-Cola Company Thrift Plan
(Full title of the plan)
Deval L. Patrick, Esq.
Executive Vice President and General Counsel
The Coca-Cola Company
One Coca-Cola Plaza
Atlanta, Georgia 30313
(Name and address of agent for service)
With a copy to:
Carol Crofoot Hayes, Esq.
Chief Counsel, Transactions and Securities and Assistant Secretary
The Coca-Cola Company
One Coca-Cola Plaza
Atlanta, Georgia 30313
(404) 676-2121
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Amount maximum maximum Amount of
Securities to to be offering price aggregate registration
be registered registered per unit (2) offering price (2) fee
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Common Stock,
par value $.25
per share 3,000,000 $46.21 $138,630,000 $12,754.00
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(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plans described herein.
(2) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(h), on the basis of the average of the high and low sales
prices per share of Common Stock of The Coca-Cola Company as reported on
the New York Stock Exchange composite transactions reported in The Wall
Street Journal on February 20, 2002.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents have been previously filed by The Coca-Cola Company
(the "Company") with the Securities and Exchange Commission and are hereby
incorporated by reference into this Registration Statement as of their
respective dates:
(a) Annual Report on Form 10-K for the year ended December 31, 2000;
(b) Quarterly Report on Form 10-Q for the quarters ended March 30,
2001, June 30, 2001 and September 30, 2001;
(c) Current Report on Form 8-K filed February 21, 2001; and
(d) The description of the Company's Common Stock which is contained
in its Registration Statement on Form 8-A filed under the Exchange Act,
including all amendments and reports filed for the purpose of updating such
description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Registration Statement
and prior to the filing of a post-effective amendment to this Registration
Statement that indicates that all securities offered hereunder have been sold or
that deregisters all such securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of the filing of such documents.
Item 4. Description of Securities.
Inapplicable.
Item 5. Interest of Named Experts and Counsel.
1. The consolidated financial statements and schedule of the Company
appearing (or incorporated by reference) in the Company's Annual Report(Form
10-K) for the year ended December 31, 2000, have been audited by Ernst & Young
LLP, independent auditors, as set forth in their reports thereon included (or
incorporated by reference) therein and incorporated herein by reference. Such
financial statements are, and audited financial statements to be included in
subsequently filed documents will be, incorporated herein in reliance upon the
reports of Ernst & Young LLP pertaining to such financial statements (to the
extent covered by consents filed with the Securities and Exchange Commission)
given on the authority of such firm as experts in accounting and auditing.
2. The legality of the shares of Common Stock offered hereby has been
passed upon for the Company by Deval L. Patrick, Executive Vice President and
General Counsel of the Company. As of February 11, 2002, Mr. Patrick
beneficially owned 71,100 shares of Common Stock of the Company and, under stock
option plans of the Company, holds options to purchase 378,000 shares of Common
Stock.
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Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
empowers a Delaware corporation to indemnify present and former directors,
officers, employees or agents for the corporation.
1. Article Tenth of the Certificate of Incorporation of the Company
provides:
"A. A director of the Corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (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) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which
the director derived any improper personal benefit. If the Delaware General
Corporation Law is amended after approval by the stockholders of this
Article to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
corporation shall be eliminated or limited to the fullest extent permitted
by the Delaware General Corporation Law, as so amended.
B. Any repeal or modification of Article Tenth, Paragraph A, by the
stockholders of the corporation shall not adversely affect any right or
protection of a director of the corporation existing at the time of such
repeal or modification."
2. Article Seventh of the By-Laws of the Company provides:
"Section 1. Indemnification of Directors and Officers; Insurance. The
Company shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Company) by reason of the fact
that he is or was a director, officer, employee or agent of the Company, or
is or was serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interest of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interest of the Company, and
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
The Company shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Company to procure a judgment in
its favor by reason of the fact that he is or was a director, officer,
employee or agent of the Company, or is or was serving at the
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request of the Company, as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action
or suit if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Company and except that
no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the
Company unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon
application that, despite 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 shall deem proper.
To the extent that a director, officer, employee or agent of the
Company has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in the first two paragraphs of this
Section or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Any indemnification under the first two paragraphs of this Section
(unless ordered by a court) shall be made by the Company only as authorized
in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because
the applicable standard of conduct set forth in the first two paragraphs of
this Section has been met. Such determination shall be made (1) by the
Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceedings, or (2) if such a
quorum is not obtainable, or, even if obtainable, a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or
(3) by the shareholders.
Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the Company in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent to repay such amount
unless it shall ultimately be determined that he is entitled to be
indemnified by the Company as authorized by this Section.
The indemnification and advancement of expenses provided by or granted
pursuant to this Section shall not be deemed exclusive of any other rights
to which those indemnified or those who receive advances may be entitled
under any By-Law, agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in his official capacity and as
to action in another capacity while holding such office, and shall continue
as to a person who has ceased to be a director, officer, employee or agent
and shall inure to the benefit of the heirs, executors and administrators
of such a person.
The Company shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent
of the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Company would have the power to
indemnify him against such liability under the provisions of this Section.
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The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person."
The Company has purchased directors' and officers' liability insurance
covering many of the possible actions and omissions of persons acting or failing
to act in such capacities.
For the undertaking with respect to indemnification, see Item 9.
Item 7. Exemptions from Registration Claimed.
Inapplicable.
Item 8. Exhibits
5.1 Opinion of Deval L. Patrick, Executive Vice President and General
Counsel of the Company, regarding the validity of the securities being
registered
23.1 Consent of Deval L. Patrick, Executive Vice President and General
Counsel of the Company (included as part of Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Powers of Attorney
Item 9. Undertakings
(a) The Company hereby undertakes:
(1) To 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 (the "Securities Act");
(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 Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering
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price set forth in the "Calculation of Registration Fee" table
in the effective Registration Statement;
(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 paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
("Exchange Act") that are incorporated by reference in the
Registration Statement.
(2) That for purposes of determining any liability under the
Securities Act, 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 initial bona 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.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) 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 initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities 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 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 and will be governed by the final
adjudication of such issue.
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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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia on the 22nd day of
February, 2002.
THE COCA-COLA COMPANY
By: /s/ Gary P. Fayard
----------------------------
Gary P. Fayard
Senior Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of the 22nd day of February, 2002:
/s/ Douglas N. Daft
---------------------------------
Douglas N. Daft
Chairman, Board of Directors, Chief
Executive Officer and a Director
(Principal Executive Officer)
/s/ Gary P. Fayard
---------------------------------
Gary P. Fayard
Senior Vice President and Chief
Financial Officer
(Principal Financial Officer)
/s/ Connie D. McDaniel
---------------------------------
Connie D. McDaniel
Vice President and Controller
(Principal Accounting Officer)
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Directors:
* *
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Herbert A. Allen Donald F. McHenry
* *
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Ronald W. Allen Sam Nunn
* *
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Cathleen P. Black Paul F. Oreffice
* *
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Warren E. Buffett James D. Robinson III
* *
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Susan B. King Peter V. Ueberroth
*
----------------------------
James B. Williams
* By: /s/ Carol Crofoot Hayes
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Carol Crofoot Hayes
Attorney-in-Fact
Date: February 22, 2002
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INDEX TO EXHIBITS
Exhibit
No. Exhibit
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5.1 Opinion of Deval L. Patrick, Executive Vice President and
General Counsel of the Company, regarding the validity of the
securities being registered
23.1 Consent of Deval L. Patrick, Executive Vice President and
General Counsel of the Company (included as part of Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Powers of Attorney