S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on May 22, 1997
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 Registrant's principal executive offices)
The Stock Purchase Loan Plan
for Foreign Affiliates of The Coca-Cola Company
(Full title of plan)
Joseph R. Gladden, Jr., Esq.
Senior 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.
Senior Finance Counsel 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
=========================================================================
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to to be Offering Aggregate Registration
be Registered Registered(1) Price Offering Fee
Per Share(2) Price(2)
- -------------------------------------------------------------------------
Common Stock, 3,000,000 $67.9375 $203,812,500 $61,761.36
par value $.25 shares
per share
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(1) The shares of Common Stock to be registered represent
shares of Common Stock which may be acquired pursuant to
rights to purchase which have been granted or which may be
granted in the future under The Stock Purchase Loan Plan for
Foreign Affiliates of The Coca-Cola Company.
(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 on May 21, 1997.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 1. 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, 1996;
(b) Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997; and
(c) The description of the Company's Common Stock
which is contained in its Registration Statement on Form 8-A
filed under the Securities Exchange Act of 1934 (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 2. DESCRIPTION OF SECURITIES
Inapplicable.
ITEM 3. INTEREST OF NAMED EXPERTS AND COUNSEL.
1. The consolidated financial statements and schedules of
the Company appearing (or incorporated by reference) in the
Company's Annual Report on Form 10-K for the year ended December
31, 1996, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their reports thereon appearing (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 upon the authority of such firm as experts in
accounting and auditing.
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2. The legality of the shares of Common Stock offered
hereby has been passed upon for the Company by Joseph R. Gladden,
Jr., Senior Vice President and General Counsel of the Company.
Mr. Gladden beneficially owns 477,545 shares of Common Stock of
the Company and, under stock option plans of the Company, holds
options to purchase 394,792 shares of Common Stock and stock
appreciation rights with respect to 61,792 of such shares.
ITEM 4. 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 Registrant 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 Registrant
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
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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 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
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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.
"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.
ITEM 5. EXEMPTIONS FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 6. EXHIBITS
5.1 -- Opinion of Joseph R. Gladden, Jr., Senior Vice
President and General Counsel of the Company, regarding
the validity of the securities being registered
23.1 -- Consent of Joseph R. Gladden, Jr., Senior Vice
President and General Counsel of the Company (included
as part of Exhibit 5.1)
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23.2 -- Consent of Ernst & Young LLP
24.1 -- Powers of Attorney
ITEM 7. UNDERTAKINGS
(a) The undersigned registrant 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; 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
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
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 undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
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each filing of the registrant's annual report pursuant
to Section 13(a) or 15(d) of the Exchange Act 1934
(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 registrant
pursuant to the foregoing provisions, or otherwise, the
registrant 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, 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 21st day of May, 1997.
THE COCA-COLA COMPANY
By: /s/ JAMES E. CHESTNUT
James E. Chestnut
Senior Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons
in the capacities indicated as of the 21st day of May, 1997:
/s/ ROBERTO C. GOIZUETA
Roberto C. Goizueta
Chairman, Board of Directors, Chief
Executive Officer and a Director
(Principal Executive Officer)
/s/ JAMES E. CHESTNUT
James E. Chestnut
Senior Vice President and Chief
Financial Officer
(Principal Financial Officer)
/s/ GARY P. FAYARD
Gary P. Fayard
Vice President and Controller
(Principal Accounting Officer)
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Directors:
* *
- ------------------------------ ------------------------------
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
* *
- ------------------------------ ------------------------------
Warren E. Buffett James D. Robinson III
* *
- ------------------------------ ------------------------------
Charles W. Duncan, Jr. Peter V. Ueberroth
* *
- ------------------------------ ------------------------------
M. Douglas Ivester James B. Williams
*
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Susan B. King
* By: /s/ CAROL C. HAYES
Carol C. Hayes
Attorney-in-Fact
Date: May 21, 1997
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EXHIBIT INDEX
Exhibit
No. Exhibit
- ------- -------
5.1 Opinion of Joseph R. Gladden, Senior Vice President and
General Counsel of the Company, regarding the validity
of the securities being registered
23.1 Consent of Joseph R. Gladden, Senior 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