THE COCA-COLA COMPANY COMPENSATON
AND DEFERRED COMPENSATION PLAN
FOR NON-EMPLOYEE DIRECTORS
The Coca-Cola Company Compensation and Deferred Compensation Plan for Non-Employee Directors (the Plan) is adopted on February 19, 2009, effective January 1, 2009 (Effective Date). The deferred compensation provisions of the Plan are designed to provide non-employee Directors of The Coca-Cola Company (the Company) with an opportunity to defer certain compensation as a Director, and set forth the specific terms applicable to the mandatory deferral of Share Units awarded under the Plan.
All compensation awarded to non-employee Directors of the Company prior to the Effective Date shall be subject to the terms of the Compensation Plan for Non-Employee Directors of The Coca-Cola Company, as amended on December 13, 2007. The Plan replaces The Coca-Cola Company Deferred Compensation Plan for Non-Employee Directors as amended and restated effective April 1, 2006 (the Prior DC Plan). While the balances from the Prior DC Plan will be transferred to the Plan, all deferrals made pursuant to the Prior DC Plan shall remain in effect according to their terms, including timing of payment and form of distribution, except as may be required by Section 409A of the Internal Revenue Code of 1986, as amended.
The following words and phrases as used herein shall have the meaning specified below, unless a different meaning is plainly required by the context.
AC Account shall mean an annual compensation account maintained under the Plan for a Participant in accordance with Article III.
Beneficiary shall mean the person, persons or trust designated in writing by the Participant to receive any benefits from the Plan due to the death of the Participant. If no Beneficiary is designated, the Beneficiary shall be the Participants spouse. If no Beneficiary is designated and the Participant has no current spouse, the Beneficiary shall be the Participants estate.
Board shall mean the Board of Directors of The Coca-Cola Company.
Calculation Date shall mean April 1 or, if April 1 is not a trading day, the trading day immediately preceding April 1.
Cash Payment shall mean the cash payment described in Section 3.2.
Change in Control shall mean a change in control of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A under the Securities Exchange Act of 1934, as amended (1934 Act), as in effect on January 1, 2002, provided that such a change in control shall be deemed to have
occurred at such time as (i) any person (as that term is used in Sections 13(d) and 14(d)(2) of the 1934 Act), is or becomes the beneficial owner (as defined in Rule 13d-3 under the 1934 Act as in effect on January 1, 2002) directly or indirectly, of securities representing 20% or more of the combined voting power for election of directors of the then outstanding securities of the Company or any successor of the Company; (ii) during any period of two (2) consecutive years or less, individuals who at the beginning of such period constituted the Board of the Company cease, for any reason, to constitute at least a majority of the Board, unless the election or nomination for election of each new director was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of the period; (iii) the shareowners of the Company approve any merger or consolidation as a result of which the Stock (as defined below) shall be changed, converted or exchanged (other than a merger with a wholly owned subsidiary of the Company) or any liquidation of the Company or any sale or other disposition of 50% or more of the assets or earning power of the Company and such merger, consolidation, liquidation or sale is completed; or (iv) the shareowners of the Company approve any merger or consolidation to which the Company is a party as a result of which the persons who were shareowners of the Company immediately prior to the effective date of the merger or consolidation shall have beneficial ownership of less than 50% of the combined voting power for election of directors of the surviving corporation following the effective date of such merger or consolidation and such merger or consolidation is completed; provided, however, that no Change in Control shall be deemed to have occurred if, prior to such times as a Change in Control would otherwise be deemed to have occurred, the Board determines otherwise, and provided the Change in Control constitutes a change in control pursuant to Section 409A of the Code.
Code shall mean the Internal Revenue Code of 1986, as amended.
Committee shall mean the Committee on Directors and Corporate Governance of the Board of Directors of the Company.
Company shall mean The Coca-Cola Company.
Director shall mean a duly-appointed or elected member of the Board.
DC Account shall mean a deferred compensation account maintained under the Plan for a Participant in accordance with Article IV.
Effective Date shall mean January 1, 2009.
Majority-Owned Related Company shall mean a corporation(s) or other business organization(s) in which the Company owns, directly or indirectly, 50% or more of the voting stock or capital at the relevant time.
Participant shall mean a Director who is eligible for the Plan in accordance with Article II and/or a former Director for whom accounts are maintained under the Plan.
Payment Date shall mean the date that is the later of (i) January 15 of the year following the year in which service as a Director terminates or (ii) six months following the date on which service as a Director terminates. Where a Participant has elected to receive payment of the balance in the Participants DC Account in the form of
installments in accordance with the terms of the Plan, the first installment payment shall be paid on the Payment Date and all other installment payments shall be paid annually on the anniversary date of the Payment Date.
Plan shall mean The Coca-Cola Company Compensation and Deferred Compensation Plan for Non-Employee Directors.
Share Unit shall mean a hypothetical share of Stock that is credited to a Participants AC Account or DC Account.
Stock shall mean the common stock of the Company.
Unforeseeable Emergency shall mean a severe unforeseeable financial hardship as defined in Section 409A of the Code and the regulations thereunder, including a severe financial hardship resulting from (i) an illness or accident of the Participant, the Participants spouse, the Participants designated Beneficiary, or the Participants dependent (as defined in Section 152 of the Code, without regard to section 152(b)(1), (b)(2), and (d)(1)(B)), (ii) the loss of the Participants property due to casualty, or (iii) other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the Participants control.
Valuation Date shall mean the trading date immediately preceding the Payment Date.
2.1 Limitation to Non-Employee Directors. Only Directors who are not employed by the Company or a Majority-Owned Related Company shall be eligible for the Plan.
2.2 Date of Eligibility. Directors who are on the Board as of January 1, 2009 shall be eligible to participate for 2009. Thereafter, a new Director shall be eligible as of the date he or she is appointed or elected to the Board.
3.1 Accounts; Mandatory Annual Transfer. Each Participant shall have an AC Account administered in his or her name. Such AC Account shall be a bookkeeping entry only and no Stock or other assets shall be placed in the Participants name. On December 31 of each year, all Share Units credited to a Participants AC Account pursuant to Section 3.3 automatically shall be transferred to that Participants DC Account.
3.2 Cash Payment. Unless the Participant has elected to defer the Cash Payment into Share Units in accordance with Article IV of this Plan, the Participant will be paid $50,000 annually, payable in equal quarterly installments. The Chair of each committee of the Board of Directors shall receive an additional $20,000 annually, payable in equal quarterly installments.
3.3 Crediting of Share Units. On the Calculation Date, each Participants AC Account shall be credited with Share Units. The dollar amount for 2009 shall be $125,000 and may be adjusted in subsequent years by the Board of Directors. The number of Share Units credited to each Participant shall be determined by dividing this dollar amount by the average of the high and low price of Stock on the New York Stock Exchange Composite Transactions listing on the Calculation Date.
3.4 New Directors Appointed or Elected Mid-Year. For individuals who become eligible for the Plan in a particular year after the Calculation Date, his or her AC Account shall be credited with Share Units under this paragraph. A new Participant shall be credited with Share Units equal to the number of units calculated on the Calculation Date for the year pursuant to Section 3.3, prorated for the number of days in the calendar year during which the Participant was eligible for participation in the Plan. This proration shall be a fraction, the numerator of which is the number of days remaining in the calendar year (measured from the date the Director was eligible for participation in the Plan) and the denominator of which is 365. Once the number of Share Units is prorated, Share Units shall be credited to the Participants AC Account. In addition, with respect to the Cash Payment, such new Participant shall be paid an amount equal to the annual Cash Payment divided by the number 4 minus the number of full calendar quarters that have elapsed at the time of such Participants election or appointment to the Board, payable in equal installments in accordance with the payment schedule adopted pursuant to Section 3.2.
DC ACCOUNTS; ELIGIBLE COMPENSATION; ELECTIONS TO DEFER
4.1 Establishment of DC Accounts. The Company shall establish a DC Account for each Participant. Such DC Account shall be a bookkeeping entry only and no Stock or other assets shall be placed in the Participants name. All eligible compensation, as described in Section 4.2, that a Participant elects to defer in accordance with this Article IV shall be credited to that Participants DC Account in the manner set forth in this Article IV. In addition, on December 31 of each year, all compensation credited to a Participants AC Account pursuant to Section 3.3 automatically shall be transferred to that Participants DC Account.
4.2 Eligible Compensation. A Participant may elect to defer all or a specified percentage of the annual Cash Payment receivable by such Director under the Plan for service as a Director of the Company. No other compensation or expense reimbursement shall be eligible for voluntary deferral.
4.3 Elections to Defer. Participants must elect to defer eligible Cash Payments under the following provisions. Elections shall be in writing on forms or via electronic format as determined by the Secretary of the Company. The election shall specify the applicable percentage to be deferred.
(a) Annual Cash Payments. If a Participant wishes to defer his or her annual Cash Payment, he or she must elect a percentage to defer, from 10% - 100%, no later than December 31 prior to the beginning of the year for which the Cash Payment is paid. This election is irrevocable for all amounts paid for the calendar year.
(b) New Directors. A new Director appointed or elected to the Board during the calendar year shall not be eligible to defer the Cash Payment that is payable through the end of that first calendar year of service.
(c) Duration of Elections. If an election is made to defer the annual Cash Payment, the election shall continue in effect until the end of the Participants service as a Director or until the end of the calendar year during which the Director gives the Company written notice of the discontinuance of the election. Such a notice of discontinuance shall operate prospectively from the first day of the calendar year following the giving of notice. An election with respect to the annual Cash Payment becomes irrevocable as of December 31 of the year prior to the year the Cash Payment is earned.
4.4 Elections and Forms of Payment.
(a) Forms of Payment. All payments under the Plan shall be in cash. A Participant may elect to receive payments in a single lump sum or in a series of annual installments (not to exceed five). If a Participant fails to make an election in accordance with this Section 4.4, the balance in the Participants DC Account upon the Participants termination of service with the Company shall be paid in the form of a lump sum, unless otherwise provided in this Section 4.4. In the event of death or a Change in Control, all payments shall be made in the form of a lump sum payment.
(b) Payment Distribution Election Under Prior DC Plan. All elections made under the Prior DC Plan regarding the form of payment distribution for compensation awarded to a Participant prior to the Effective Date cannot be changed with respect to such compensation. Any elections made under the Prior DC Plan also shall apply to all compensation awarded under the Plan, unless the Participant makes a new form of payment distribution election in accordance with Section 4.4(c).
(c) Payment Distribution Election Under the Plan. A Participant may make a different election for future compensation under the Plan. If a Participant has not made an election under the Prior DC Plan, was not a participant in the Prior DC Plan, or wishes to make a different election for future compensation, the Participant must make an initial election within 30 days of the date the Plan is adopted. An individual who becomes a Director during the calendar year must make an initial election within 30 days of his or her appointment or election to the Board. Once a Participant makes an election under the Plan, it shall apply to all future compensation awarded to the Participant under the
Plan unless a new election is made by December 31 of the year prior to the time the compensation is paid.
4.5 Deferral of Cash Payments; Crediting of Share Units. If a Participant has elected to defer the Cash Payment (or any portion thereof) pursuant to Section 4.3, the amount elected shall be added to the Share Units awarded to such Participant pursuant to Section 3.3 on the Calculation Date and credited to the Participants DC Account. Such amount shall be converted on the Calculation Date to a number of Share Units equal to the number of shares of Stock that theoretically could have been purchased on such date with such amount, using the average share price on the New York Stock Exchange Composite Transactions listing on such date, or if such date is not a trading day, on the next trading day.
ADJUSTMENTS TO ACCOUNTS
5.1 Hypothetical Dividends. As of each date on which dividends on the Stock are payable to shareowners of the Company, each Participants AC Account and DC Account shall be credited with the value of the dividends that would be payable on Share Units in such accounts if they were shares of Stock (not taking into account the record date). These hypothetical dividends shall be converted to Share Units using the average of the high and low price of Stock on the New York Stock Exchange Composite Transactions listing on the dividend payment date or if such date is not a trading day, on the trading day preceding the dividend payment date.
5.2 Stock Split; Stock Dividend. Each Participants AC Account and DC Account shall be credited on the date of any stock split or stock dividend, with the number of Share Units necessary for an equitable adjustment.
PAYMENT OF PLAN ACCOUNTS
6.1 Permitted Payment Events. Payment of accounts under the Plan shall not be made except following death, disability, termination of service from the Board, or upon a Change in Control. Payments shall not be accelerated, except as permitted by Section 409A of the Code and the regulations thereunder.
6.2 Payment of Account Balance. Upon a Participants separation of service as a Director of the Company, all Share Units in the Participants AC Account that have been earned for such year, as calculated pursuant to Section 6.4, shall be transferred to that Participants DC Account.
(a) Lump Sum Payment. Except in the case of death, the value of the Participants DC Account shall be paid on the Payment Date. In the event of a Participants death, the value of the Participants DC Account shall be paid to the Participants Beneficiary as soon as possible, but no later than 60 days following the date of death.
(b) Installment Payments Election. If the Participant has elected to receive payment of the Participants DC Account balance in the form of annual installments in accordance with Section 4.4, the amount of each such payment shall be computed as provided in this Section 6.2(b). The amount of the first payment shall be a fraction of the balance in the Participants DC Account as of December 31 of the year preceding such payment, the numerator of which is one and the denominator of which is the total number of installments elected. The amount of each subsequent payment shall be a fraction of the balance in the Participants DC Account as of December 31 of the year preceding each subsequent payment, the numerator of which is one and the denominator of which is the total number of installments elected minus the number of installments previously paid.
6.3 Valuation of Account Balance. Except in the case of a Directors separation of service from the Company due to death or a Change in Control, the balance in the Participants DC Account in Share Units shall be valued in an amount equal to the number of Share Units in the Participants DC Account multiplied by the average of the high and low market prices at which a share of Stock shall have been sold on the Valuation Date, as reported on the New York Stock Exchange Composite Transactions listing. In the event of separation due to death or a Director or a Change in Control, the value of the balance of Share Units in the Participants DC Account shall be calculated in the same manner as set forth above in this Section 6.3, except that the Valuation Date for such purposes shall be the date of death of the Director or the date of the Change in Control, as the case may be.
6.4 Separation During the Year; Proration of Annual Compensation. In the event of a Directors separation of service from the Company during the calendar year, the Share Units attributable to each such period shall be prorated. The proration shall be a fraction, the numerator of which is the number of days from the beginning of the year to the date of the Directors separation of service and the denominator of which is 365. Any Share Units that have been credited to the Participants AC Account due to dividends paid to shareowners of the Company during the Participants period of service during that year shall be added. The quarterly Cash Payment shall be paid for any portion of a calendar quarter during which that Participant served as a Director.
6.5 Unforseeable Emergency. A Participant shall be permitted to elect a distribution from his or her DC Account prior to the date the DC Accounts were to be distributed, subject to the following restrictions:
(a) the election to take a distribution due to an Unforeseeable Emergency shall be made by requesting such a distribution in writing to the Committee, including the amount requested and a description of the need for the distribution;
(b) the Committee shall make a determination, in its sole discretion, that the requested distribution is on account of an Unforseeable Emergency; and
(c) the Unforseeable Emergency cannot be relieved (i) through reimbursement or compensation by insurance or otherwise, (ii) by liquidation of the Participants assets, to the extent the liquidation of assets would not itself cause severe financial hardship, or (iii) by cessation of deferrals under this Plan.
The amount determined by the Committee as distributable due to an Unforeseeable Emergency shall be paid within 30 days after the request for the distribution is approved by the Committee.
ADMINISTRATION AND MISCELLANEOUS PROVISIONS
7.1 Administration of the Plan. The Committee shall oversee the administration of the Plan. The Committee has the exclusive responsibility and complete discretionary authority to control the operation and administration of the Plan, with all powers necessary to enable it to properly carry out such responsibility, including but not limited to the power to construe the terms of the Plan, to determine status, coverage and eligibility for benefits and to resolve all interpretive, equitable, and other questions, including questions of fact, that shall arise in the operation and administration of the Plan. The Plan shall be interpreted consistently with the provisions of Section 409A of the Code. All actions or determinations of the Committee shall be final, conclusive and binding on all persons.
7.2 Amendment and Termination of the Plan. The Board may amend, modify, suspend or terminate the Plan in whole or in part, except that no amendment, modification, suspension or termination may retroactively adversely affect any Participants right to a benefit which has been earned under the Plan before such date.
7.3 Controlling Law. This Plan shall be subject to the laws of the State of Georgia, and the parties agree that all disputes arising from or related to this Plan shall be litigated in the state or federal courts located in Fulton County, Georgia. The parties agree that such courts shall be the exclusive forum for such disputes and hereby submit to the jurisdiction and venue of such courts for the litigation of all such disputes. The parties hereby waive any claims of improper venue or lack of personal or subject matter jurisdiction as to any such disputes.
7.4 Limitation of Responsibility. Neither the establishment of this Plan nor any modification thereof, nor the creation of any AC Account or DC Account, nor the payment of any benefits, shall be construed as giving to any Participant or other person any legal or equitable right against the Company, or its subsidiaries, or any officer or employee thereof; and in no event shall the terms of any Directors Board appointment be modified or in any way affected thereby.
7.5 Unsecured General Creditor. Participants and their Beneficiaries, heirs, successors, and assigns shall have no legal or equitable rights, claims, or interest in any specific property or assets of the Company. No assets of the
Company shall be held in any way as collateral security for the fulfilling of the obligations of the Company under this Plan. The Companys obligation under the Plan shall be merely that of an unfunded and unsecured promise of the Company to pay money in the future, and the rights of the Participants and Beneficiaries shall be no greater than those of unsecured general creditors. Nothing contained in this Plan, and no actions taken pursuant to the provisions of this Plan shall create or be construed to create a trust or any kind of fiduciary relationship between the Company and any Participant, Beneficiary, or any other person.
7.6 Taxes. Federal, state, FICA/Medicare and all other taxes shall be solely the responsibility of the Participant. The Company will report all payments as required by the Internal Revenue Code or other tax regulations and withhold any applicable taxes where required.