Company Name: Coca-Cola Co.
Public Availability Date: December 27, 2007
Document Sections:
INQUIRY LETTER
INQUIRY LETTER
APPENDIX
STAFF REPLY LETTER
[INQUIRY LETTER]
December 12, 2007
BY HAND DELIVERY
U.S. Securities and Exchange Commission
Division of Corporation Finance
Office of Chief Counsel
100 F Street, N.E.
Washington, D.C. 20549
Re: The Coca-Cola Company/Exclusion From Proxy Materials of Shareowner Proposal
Submitted by Mary F. Morse
Ladies and Gentlemen:
Pursuent to Rule 14a-8(j) under the Securities Exchange Act of 1934, as amended,
The Coca-Cola Company, a Delaware corporation (the "Company"), hereby notifies
the Securities and Exchange Commission (the "Commission") of the Company's
intention to exclude a shareowner proposal (the "Proposal") submitted by Mary F.
Morse (the "Proponent") from its proxy materials for its 2008 Annual Meeting of
Shareowners (the "Annual Meeting"). The Company requests confirmation that the
Division of Corporation Finance (the "Staff") will not recommend to the
Commission that enforcement action be taken if the Company excludes the Proposal
from its proxy materials for the Annual Meeting in reliance on Rule 14a-8(h)(3).
A copy of the Proposal and the Proponent's supporting statement are attached to
this letter as Exhibit 1.
In accordance with Rule 14a-8(j), six copies of this letter and all exhibits are
enclosed. In addition, a copy of this letter and the attached exhibits are being
provided simultaneously to the Proponent.
The Company intends to file its definitive proxy materials for the Annual
Meeting with the Commission on or about March 3, 2008.
As more fully set forth below, we believe that the Proposal may be excluded from
the Company's 2008 proxy materials under Rule 14a-8(h)(3) because the Proponent
failed to attend, or send a duly qualified representative to attend, the
Company's 2007 Annual Meeting of Shareowners to present a prior proposal
submitted to the Company by the Proponent.
THE PROPOSAL
The Proposal reads:
"I, Mary F. Morse, of 212 Highland Avenue, Moorestown, NJ 08057-2717, owner of
$2000.00 or more of The Coca-Cola Company stock, held for a year, request the
Board of Directors to take action regarding remuneration to any of the top five
persons named in Management be limited to $500,000.00 per year, by salary only,
plus any nominal perks (i.e.; company car use, club memberships] This program is
to be applied after any existing programs now in force for cash, options,
bonuses, SAR's, etc., plus discontinue, if any, severance contracts, in effect,
are completed, which I consider part of remuneration programs.
This proposal does not affect any other personnel in the company and their
remuneration programs"
Rule 14a-8(h)(3): Proponent's Failure to Present a Proposal at the 2007 Annual
Meeting of Shareowners
Rule 14a-8(h)(3) provides that where a proponent of a shareholder proposal, or a
duly qualified representative of the proponent, fails to attend the
shareholders' meeting to present the proposal, without good cause, a company is
permitted to exclude from its proxy materials all proposals submitted by that
proponent for any meetings held in the following two calendar years.
The Proponent submitted a shareowner proposal to the Company which was included
as Item 4 in the Company's proxy materials for its 2007 Annual Meeting of
Shareowners. The meeting was held in Wilmington, Delaware on April 18, 2007.
Neither the Proponent nor her duly qualified representative was present at the
meeting to present the proposal. The Proponent did not have "good cause" for not
attending or being represented by a qualified representative at the 2007 Annual
Meeting of Sharcowners. As a result, consistent with Rule 14a-8(h)(3), the
Company believes that the Proposal may be excluded from the Company's proxy
materials for the Annual Meeting. Additionally, as provided in Staff Legal
Bulletin No. 14 (July 13, 2001), specifically Section C.4(c) of the bulletin,
the Company concurrently requests confirmation from the Staff that any
shareowner proposals received from the Proponent for the Company's 2009 Annual
Meeting of Shareowners may also be excluded from the Company's proxy materials
for such meeting.
The Staff has consistently allowed companies to exclude shareowner proposals in
reliance on Rule 14a-8(h)(3) because of a proponent's failure to appear or send
a representative to an annual meeting to present a proposal absent good cause.
See, e.g., Caterpillar Inc. (Mar. 19, 2007); Wm. Wrigley Jr. Company (Dec. 5,
2006); Eastman Kodak Company (Jan. 30, 2006); Community Health Systems, Inc.
(Jan. 25, 2006); Entergy Corporation (Jan. 10, 2006); Wm. Wrigley Jr. Company
(Nov. 21, 2005); Hudson United Bancorp (Oct. 6, 2005); Eastman Kodak Company
(Jan. 5, 2005); The Coca-Cola Company (Dec. 22, 2004).
The Proponent may offer health-related or medical issues as justification for
her failure to attend and present her proposal at the Company's 2007 Annual
Meeting of Shareowners, or as justification for her inability to attend the
Annual Meeting. In this respect, in the letter accompanying the Proposal,
attached as Exhibit 1, the Proponent states:
"I cannot be expected to attend but will try to be represented at the meeting by
an alternate selection, if any become known to me.
For the past three years, my close presence at home to attend my medical needs
has escalated and the S.E.C. has been so advised as a "valid reason" for
non-attendance."
The Staff has previously ruled that health-related or medical issues do not
constitute "good cause" for failure to appear. See J.C. Penney Company, Inc.
(Feb. 13, 2004) (the Staff ruled that the proponent's explanation that he did
not attend the annual meeting due to spinal, cervical, and neurological ailments
which prevented him from traveling did not constitute a statement of "good
cause"). In fact, the Proponent has previously made similar arguments in the
past in circumstances where the Company has sought to exclude her proposals
based on Rule 14-8(h)(3). See The Coca-Cola Company (Jan. 23, 2006). Consistent
with this precedent, and based on the Proponent's failure to attend the 2007
Annual Meeting of Shareowners, the Company intends to exclude the Proposal from
its proxy materials relating to the Annual Meeting.
CONCLUSION
For the foregoing reasons, the Company intends to exclude the Proposal from its
proxy materials with respect to the Annual Meeting and requests confirmation
that the Staff will not recommend any enforcement action to the Commission if
the Company so excludes the Proposal. If the Staff grants the Company's request
pursuant to Rule 14a-8(h)(3) with respect to the Proposal, the Company further
requests comfirmation that the Staff will not recommend any enforcement action
if any proposals submitted by the Proponent are omitted from the proxy materials
for the Company's 2009 Annual Meeting of Shareowners. The Company is aware of
its obligations under Rule 14a-8(j) to notify the Staff and the Proponent in
such event if the Staff confirms the Company's request.
If the Staff has any questions regarding this matter or requires additional
information, please feel free to call me at (404) 676-2187.
Very truly yours,
/s/
Anita Jane Kamenz
Attorney
cc: Carol C. Hayes
Mary F. Morse
Mark E. Preisinger
Enclosures
[INQUIRY LETTER]
August 30, 2007
Office of The Secretary
The Coca-Cola Company
PO Box 1734
Atlanta, GA 30301
Dear Secretary:
I, Mary F. Morse, of 212 Highland Avenue, Moorestown, NJ 08057-2717, wish to
introduce the enclosed Proposal for the Year 2008 Proxy Material. I have
held.$2000.00 or more in the company's securities over one year and will
continue to hold until after the next meeting date.
I cannot be expected to attend but will try to be represented at the meeting by
an alternate selection, if any become known to me.
For the past three years, my close presence at home to attend my medical needs
has escalated and the S.E.C. has been so advised as a "valid reason" for
non-attendance.
This Proposal has been prepared by my husband, Robert, as I neither type nor use
a computer.
Encl.: Proposal and Reasons
Sincerely,
Mary F. Morse Family Tr.
/s/
[APPENDIX]
PROPOSAL
I, Mary F. Morse, of 212 Highland Avenue, Moorestown, NJ 08057-2717, owner of
$2000.00 or more of The Coca-Cola Company stock, held for a year, request the
Board of Directors to take action regarding remuneration to any of the top five
persons named in Management be limited to $500,000.00 per year, by salary only,
plus any nominal perks {i.e.; company car use, club memberships] This program is
to be applied after any existing programs now in force for cash, options,
bonuses, SAR's, etc., plus discontinue, if any, severance contracts, in effect,
are completed, which I consider part of remuneration programs.
This proposal does not affect any other personnel in the company and their
remuneration programs
REASONS
Ever since about Year 1975, when "Against" was removed from "Vote for Directors"
box, and no other on the Proxy Vote, and the term "Plurality" voting was
contrived, sharcowners have lost the "Right of Dissent", which is
unconstitutional No reason given, but the result has been that any Management
nominee for Director was elected, even if only one "For" vote was received. This
is because "Abstain" and "Withheld" are not deducted from "For". In response,
Directors have awarded remuneration to those whom nominated them, to the point
of being excessive and still escalating. Millions of dollars of shareowners
assets are diverted for the five top Management, year after year, until their
retirement or they "Jump Ship" for another company's offer. It is seldom proven
to have been "earned" by their efforts, rather than the product or services.
The limit of one half million dollars in remuneration is far above that needed
to enjoy an elegant lifestyle. These funds might better be applied to dividends.
The savings in elimination of personnel needed to process all previous programs
could be tremendous. Plus savings on lengthy pages reporting the process in the
Report, a help for the National Paperwork Reduction Act.
This can all be accomplished by having Directors eliminate all Rights, Options,
S.A.R.'s, retirement and severance, etc. programs, relying on $500.000.00 to be
adequate, and Management buying their own stock and retirement programs, if
desired.
It is commendable that AT&T, ExxonMobil, Ford Motor [1\st/], perhaps others,
have already returned "Against" as requested.
Thank you, and please vote "YES" for this Proposal. It is for Your benefit !
Mary F. Morse
/s/
[STAFF REPLY LETTER]
December 27, 2007
Response of the Office of Chief Counsel Division of Corporation Finance
Re: The Coca-Cola Company Incoming letter dated December 12, 2007
The proposal relates to compensation.
There appears to be some basis for your view that Coca Cola may exclude the
proposal under rule 14a-8(h)(3). We note your representation that Coca-Cola
included the proponent's proposal in its proxy statement for its 2007 annual
meeting, but that neither the proponent nor its representative appeared to
present the proposal at this meeting. Morcover, the proponent has not stated a
"good cause" for the failure to appear. Under the circumstances, we will not
recommend enforcement action to the Commission if Coca-Cola omits the proposal
from its proxy materials in reliance on rule 14a-8(h)(3). This response will
also apply to any future submissions to Coca-Cola by the same proponent with
respect to an annual meeting held during calendar year 2009.
Sincerely,
/s/
Heather L. Maples
Special Counsel
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