Company Name: Coca-Cola Co.
Public Availability Date: February 4, 2008
Document Sections: INQUIRY LETTER
APPENDIX 1
APPENDIX 2
INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
STAFF REPLY LETTER
[INQUIRY LETTER]
December 13, 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 The Great Neck Capital Appreciation LTD Partnership
Ladies and Gentlemen:
Pursuant to Rule 14a-8(j) under the Securities Exchange Act of 1934, 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 The Great Neck
Capital Appreciation LTD Partnership (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(b), Rule 14a-8(f)(1) and Rule 14a-8(i)(3).
A copy of the Proposal and the Proponent's supporting statement is attached as
Exhibit 1.
In accordance with Rule 14a-8(j), we have enclosed six copies of this letter,
including all exhibits. In addition, a copy of this letter and the attached
exhibits are being provided simultaneously to the Proponent and the Proponent's
representative.
The Company currently intends to file its definitive proxy materials for the
Annual Meeting with the Commission on or about March 3, 2008.
THE PROPOSAL
The Proposal states:
"RESOLVED, Shareholders ask our board to amend our bylaws and any other
appropriate governing documents to give holders of a reasonable percentage of
our outstanding common stock the power to call a special shareholder meeting, in
compliance with applicable law. This proposal favors 10% of our outstanding
common stock to call a special shareholder meeting."
Rule 14a-8(b) and 14a-8(f)(1): Failure to Establish
Eligibility to Submit a Proposal
Rule 14a-8(b) permits a company to exclude a shareholder proposal from its proxy
materials if the stockholder does not meet certain eligibility requirements.
Rule 14a-8(b) requires a proponent to have continuously held at least $2,000 in
market value, or 1%, of the company's securities entitled to be voted on the
proposal for at least one year prior to the date of submission of the proposal.
If the proponent is the registered holder of the company's voting securities and
appears in the company's records as a shareholder, the company may verify the
proponent's eligibility. If, however, the proponent does not appear as a
registered holder in the company's records, Rule 14a-8(b) provides two ways by
which a proponent may prove his or her eligibility:
by submitting a written statement from the "record" holder of the securities;
or
by submitting a copy of a Schedule 13D, Schedule 13G, Form 3, Form 4 and/or
Form 5, or amendments thereto, reflecting the proponent's ownership.
Rule 14a-8(f)(1) states that, if a proponent fails to provide evidence of
beneficial ownership, the company must provide the proponent with a notice of
deficiency within 14 days after receipt of the proposal. If the proponent does
not provide sufficient evidence that it has satisfied the ownership requirements
of Rule 14a-8(b) within 14 days of receipt of the company's notice of
deficiency, the proposal may be excluded under Rule 14a-8(f)(1). As explained
below, the "proof of ownership" submitted did not verify the Proponent's
holdings.
The Staff has consistently permitted companies to exclude shareholder proposals
pursuant to Rule 14a-8(f)(1) based on a proponent's failure to provide evidence
of eligibility under Rule 14a-8(b). See generally, CSK Auto Corporation (Jan.
29, 2007); The Topps Company, Inc. (Apr. 3, 2006); XM Satellite Radio Holdings
Inc. (Mar. 28, 2006); and CNF Inc. (Jan. 12, 2004).
On November 6, 2007, the Company received the Proponent's submission, a copy of
which is attached as Exhibit 1. In the cover letter accompanying the Proposal,
the Proponent designated John Chevedden and/or his designee to act as the
Proponent's representative at the Annual Meeting. The Proponent also instructed
the Company to direct all future correspondence to Mr. Chevedden. At the time of
the Proponent's submission, the Proponent did not provide proof of beneficial
ownership of the Company's Common Stock. In addition, the Company's records do
not list the Proponent as a registered holder of the Company's Common Stock.
On November 19, 2007, 13 days after receipt of the Proponent's submission, the
Company sent Mr. Chevedden a letter, with a copy to the Proponent, acknowledging
receipt of the Proposal and requesting proof of the Proponent's beneficial
ownership of the Company's Common Stock. In accordance with Rule 14a-8(f)(1),
the Company's letter also (i) explained how the defect in the Proponent's
submission could be remedied, (ii) attached a copy of Rule 14a-8, and (iii)
stated that the Company must receive a proper response within 14 days from the
receipt of the Company's letter. A copy of the Company's November 19, 2007
letter is attached as Exhibit 2.
On November 23, 2007, the Company received a letter, dated November 21, 2007,
from National Financial Services LLC ("National Financial") certifying that "THE
GREAT NECK CAP APP INVST PARTSHP., DFJ DISCOUNT BROKER" is the beneficial owner
of the requisite amount of the Company's Common Stock and has held such
securities for at least one year. A copy of National Financial's November 21,
2007 letter is attached as Exhibit 3. In addition, on November 23, 2007, the
Company received an email from Mr. Chevedden titled "Rule 14a-8 Proposal (KO)
Broker Letter," asking "whether or not there is any further requirement to this
point in the rule 14a-8 process in addition to the broker letter attached and
that was just faxed." A copy of Mr. Chevedden's November 23, 2007 email is
attached as Exhibit 4. Thereafter, on November 26, 2007, the Company responded
to Mr. Chevedden by email, a copy of which is attached as Exhibit 5, which
states in part as follows:
"We appreciate receiving the proof of ownership letter. The entity referenced in
this letter, namely THE GREAT NECK CAP APP INVST PARTSHP., DJF DISCOUNT BROKER,
doesn't match the name on the proposal submitted by Mark Filiberto as a general
partner of The Great Neck Capital Appreciation LTD Partnership. We will require
proof that The Great Neck Capital Appreciation LTD Partnership beneficially owns
the requisite shares of Company stock."
On November 29, 2007, the Company received a letter, dated November 26, 2007,
from National Financial certifying that "THE GREAT NECK CAP APP INVST PARTSHP,"
is the beneficial owner of the requisite amount of the Company's Common Stock
and has held such securities for at least one year. A copy of National
Financial's November 26, 2007 letter is attached as Exhibit 6.
Aside from the correspondence mentioned, no other correspondence has been
received from Mr. Chevedden or the Proponent.
A noted, the Proposal was received from the Proponent (The Great Neck Capital
Appreciation LTD Partnership). However, the letters from National Financial
purporting to establish the eligibility of the Proponent did not identify it as
a beneficial owner of the Company's Common Stock. Rather, the November 21, 2007
and November 26, 2007 letters from National Financial identified "THE GREAT NECK
CAP APP INVST PARTSHP., DFJ DISCOUNT BROKER" and "THE GREAT NECK CAP APP INVST
PARTSHP", respectively, as beneficial owners of the Company's Common Stock. The
Proposal was received from The Great Neck Capital Appreciation LTD Partnership
and neither of the letters received from National Financial identify it as a
beneficial owner of the Company's Common Stock. The Proponent has failed to
satisfy the ownership requirements of Rule 14a-8(b). Accordingly, the Company
believes the Proposal may be excluded pursuant to Rule 14a-8(f)(1).
Rule 14a-8(i)(3): False or Misleading Statements
Rule 14a-8(i)(3) permits an issuer to omit a shareholder proposal and the
related supporting statement from its proxy materials if such proposal or
supporting statement is contrary to the proxy rules, including Rule 14a-9, which
prohibits materially false or misleading statements in proxy materials.
The Staff has stated that a company may exclude statements contained in a
proposal, or exclude a proposal in its entirety, under Rule 14a-8(i)(3) where
"statements directly or indirectly...make charges concerning improper... conduct
or association, without factual foundation," or where "the company demonstrates
objectively that a factual statement is materially false and misleading." See
Staff Legal Bulletin No. 14B (September 15, 2004).
The Proponent's supporting statement contains an objectively false and
misleading statement as detailed below.
The Proposal states that "Fidelity and Vanguard support a shareholder right to
call a special meeting."
The Proponent's statement with respect to Vanguard is objectively false and
misleading. The Proposal requests that the Company's shareowners be given the
ability to call special meetings of "shareholders." Vanguard's proxy voting
guidelines, however, provide that Vanguard supports the right to call "special
meetings of the board." Vanguard's guidelines are silent on the subject of
special shareholder meetings, the subject of the Proposal. Accordingly, the
Company's shareowners may be misled by the Proponent's incorrect assertion that
Vanguard supports the subject matter of the Proposal. Vanguard's proxy voting
guidelines are publicly available at: https://personal.vanguard.com/us/content/Home /WhyVanguard/AboutVanguardProxyVotingGuidelinesContent.jsp
Moreover, on August 30, 2007, The Vanguard Group, Inc. filed with the Commission
several Annual Reports of Proxy Voting Record of Registered Management
Investment Companies on Form N-PX for the fiscal year ended June 30, 2007. As
reported in the Form N-PX filed with respect to the Vanguard 500 Index Fund (the
"Fund"), the relevant portion of which is attached as Exhibit 7, the Fund voted
"against" a shareholder proposal (proposal #5) submitted to Ford Motor Company
which requested that the board of directors amend the company's bylaws to give
holders of 10% (or the lowest possible percentage) of the outstanding common
stock the power to call a special shareholder meeting. This is one example in
which Vanguard reported that it voted against shareholder proposals seeking to
allow shareholders to call special shareholder meetings. The Company
acknowledges that, in some instances, Vanguard reported that its funds voted
"for" shareholder proposals relating to special shareholder meetings. The
Proposal, however, makes a blanket statement that Vanguard supports the ability
of shareholders to call special shareholder meetings. The Proponent's assertion
is thus overbroad and materially false and misleading.
As shown above, the supporting statement, which the Proponent asks the Company's
shareowners to look to in order to support the Proposal, contains an objectively
false and misleading statement in violation of Rule 14a-9 of the Commission's
proxy rules. Accordingly, we believe the statement noted above may be excluded
under Rule 14a-8(i)(3).
CONCLUSION
For the foregoing reasons, we respectfully request confirmation that the Staff
will not recommend any enforcement action to the Commission if the Company
excludes the Proposal from its 2008 proxy materials.
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
Enclosures
cc: John Chevedden
Mark Filiberto, General Partner, The Great Neck Capital Appreciation LTD
Partnership
[APPENDIX 1]
November 5, 2007
Mr. E. Neville Isdell
Chairman of the Board
Coca-Cola Company (KO)
1 Coca Cola Plz
Atlanta GA 30313
Rule 14a-8 Proposal
Dear Mr. Isdell:
This Rule 14a-8 proposal is respectfully submitted in support of the long-term
performance of our company. This proposal is submitted for the next annual
shareholder meeting. Rule 14a-8 requirements are intended to be met including
the continuous ownership of the required stock value until after the date of the
respective shareholder meeting and the presentation of this proposal at the
annual meeting. This submitted format. with the shareholder-supplied emphasis,
is intended to be used for definitive proxy publication. This is the proxy for
John Chevedden and/or his designee to act on my behalf regarding this Rule 14a-8
proposal for the forthcoming shareholder meeting before. during and after the
forthcoming shareholder meeting. Please direct all future communication to John
Chevedden at:
olmsted7p (at) earthlink.net
(In the interest of company cost savings and improving the efficiency of the
rule 14a-8 process please communicate via email.)
PH: 310-371-7872
2215 Nelson Ave., No. 205. Redondo Beach. CA 90278
Your consideration and the consideration of the Board of Directors is
appreciated in support of the long-term performance of our company. Please
acknowledge receipt of this proposal by email.
Sincerely,
/s/
Mark Filiberto.
General Partner
cc: Carol Crofoot Hayes
Corporate Secretary
Phone: 404 676-2121
Fax: 404 676-6792
FX: 404-515-0358
[APPENDIX 2]
[KO: Rule 14a-8 Proposal, November 5, 2007]
3 - Special Shareholder Meetings
RESOLVED, Shareholders ask our board to amend our bylaws and any other
appropriate governing documents to give holders of a reasonable percentage of
our outstanding common stock the power to call a special shareholder meeting, in
compliance with applicable law. This proposal favors 10% of our outstanding
common stock to call a special shareholder meeting.
Special meetings allow investors to vote on important matters that can arise
between annual meetings. If shareholders cannot call special meetings,
management may become insulated and investor returns may suffer.
Shareholders should have the ability to call a special meeting when they think a
matter is sufficiently important to merit expeditious consideration. Shareholder
control over timing is especially important in the context of a major
acquisition or restructuring, when events unfold quickly and issues may become
moot by the next annual meeting.
Fidelity and Vanguard support a shareholder right to call a special meeting. The
proxy voting guidelines of many public employee pension funds, including the New
York City Employees Retirement System, also favor this right. Governance ratings
services, such as The Corporate Library and Governance Metrics International,
take special meeting rights into account when assigning company ratings.
Eighteen (18) proposals on this topic averaged 56%-support in 2007 - including
74%-support at Honeywell (HON) according to RiskMetrics (formerly Institutional
Shareholder Services).
The merits of this proposal should also be considered in the context of our
company's overall corporate governance structure. For instance in 2007 the
following board structure issues were reported:
The Corporate Library http://www.thecorporatelibrary.com, an independent
investment research firm, rated our company "F" because of very high concerns
over board composition and executive compensation. Total Summary Compensation
for our CEO was $32 million. Yet total 2006 shareholder return relative to the
S&P 500 was a modest 7%.
Six directors had been on our board for longer than fifteen years:
Mr. H. Allen
Mr. R. Allen
Mr. McHenry
Mr. Robinson
Mr. Williams
Mr. Uberroth
This created the perception of a "board within a board" and raised concerns
over the independence and effectiveness of the board as a counter balance to
management. Additionally, Messrs Robinson and Williams are long tenured and over
seventy years of age, which raised concerns over director recruitment.
Meanwhile, a mind boggling seven directors were potentially conflicted
outside-related directors primarily as a result of related party transactions
and family relationships:
Mr. H. Allen
Mr. R. Allen
Mr. Keough
Mr. McHenry
Mr. Nunn
Mr. Robinson
Mr. Uberrotb
Five of these directors were also long tenured. This raised additional
concerns about board independence
The above concerns shows there is room for improvement and reinforces the reason
to take one step forward now and encourage our board to make progress on our
corporate governance:
Notes:
Mark Filiberto, General Partner, The Great Neck Capital Appreciation LTD
Partnership, 1981 Marcus Ave., Suite C114, Lake Success, NY 11042 sponsored this
proposal.
The above format is requested for publication without re-editing, re-formatting
or elimination of text. including beginning and concluding text, unless prior
agreement is reached. It is respectfully requested that this proposal be
proofread before it is published in the definitive proxy to ensure that the
integrity of the submitted format is replicated in the proxy materials. Please
advise if there is any typographical question.
Please note that the title of the proposal is part of the argument in favor of
the proposal. In the interest of clarity and to avoid confusion the title of
this and each other ballot item is requested to be consistent throughout all the
proxy materials.
The company is requested to assign a proposal number (represented by "3" above)
based on the chronological order in which proposals are submitted. The requested
designation of "3" or higher number allows for ratification of auditors to be
item 2.
This proposal is believed to conform with Staff Legal Bulletin No. 14B (CF),
September 15, 2004 including:
Accordingly, going forward, we believe that it would not be appropriate for
companies to exclude supporting statement language and/or an entire proposal in
reliance on rule 14a-8(i)(3) in the following circumstances:
the company objects to factual assertions because they are not supported;
the company objects to factual assertions that, while not materially false or
misleading, may be disputed or countered;
the company objects to factual assertions because those assertions may be
interpreted by shareholders in a manner that is unfavorable to the company, its
directors, or its officers; and/or
the company objects to statements because they represent the opinion of the
shareholder proponent or a referenced source, but the statements are not
identified specifically as such.
See also: Sun Microsystems, Inc. (July 21, 2005).
Stock will be held until after the annual meeting and the proposal will be
presented at the annual meeting.
Please acknowledge this proposal promptly by email and advise the most
convenient fax number and email address to forward a broker letter, if needed,
to the Corporate Secretary's office.
[INQUIRY LETTER]
January 3, 2008
BY COURIER
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 The Great Neck Capital Appreciation LTD Partnership
Ladies and Gentlemen:
We refer to our letter to you dated December 13, 2007 (the "Letter") relating to
The Coca-Cola Company's (the "Company") intention to exclude a shareowner
proposal (the "Proposal") submitted by The Great Neck Capital Appreciation LTD
Partnership (the "Proponent") from its proxy materials for the Company's 2008
Annual Meeting of Shareowners.
On December 19, 2007, we received a copy of a letter to the staff from Mr. John
Chevedden, acting on behalf of the Proponent, asking the staff not to concur in
the Company's conclusion that the Proposal may be excluded from its proxy
materials. A copy of Mr. Chevedden's letter is attached as Exhibit 1.
In his letter, Mr. Chevedden takes issue with, among other things, the Company's
position that the Proponent failed to establish its eligibility to submit a
shareholder proposal under Rules 14a-8(b) and 14a-8(f)(1). As outlined in detail
in the Company's December 13, 2007 letter, the Proposal was submitted by "The
Great Neck Capital Appreciation LTD Partnership." The Company requested that the
Proponent submit proof of beneficial ownership of the Company's securities, to
establish the Proponent's eligibility under Rule 14a-8(b), and thereafter the
Company received a letter from a broker purporting to provide proof of the
Proponent's beneficial ownership of the Company's common stock. Instead,
however, the letter indicated that shares of the Company's common stock were
beneficially owned by an entity named "THE GREAT NECK CAP APP INVST PARTSHP.,
DFJ DISCOUNT BROKER." When the Company informed Mr. Chevedden that the entity
named in the broker's letter was not the Proponent, the Company received another
broker's letter, this time showing the name of the beneficial owner as "THE
GREAT NECK CAP APP INVST PARTSHP."
Although the name of the entity identified in the broker's letter is very
similar to the Proponent's, it appears that the two names identify two entirely
different entities. Throughout its correspondence and the Proposal, the
Proponent lists its address as 1981 Marcus Ave., Suite C114, Lake Success, NY
11042. Assuming the entity named in the broker's letter is the abbreviated
version of "The Great Neck Capital Appreciation Investment Partnership, L.P.,"
this entity is listed separately in the business entity database of the New York
State Division of Corporations, and has a registered address of 98 Cutter Mill
Road, Great Neck, New York 11021. A copy of the database record is attached as
Exhibit 2.
Contrary to Mr. Chevedden's assertion, the Company's position is not that one
word was misstated in the broker's letters. Instead, the Company's position is
that he has failed to provide proof that the Proponent beneficially owns any
Company common stock. His submission of proof that another entity with a similar
name owns the Company's common stock is an effort to substitute a new proponent
of the Proposal, after the deadline for submitting shareholder proposals to the
Company has passed. We continue to believe that the Proponent has failed to
establish its eligibility to submit the Proposal. To date, the Company has not
received any evidence that the Proponent is the beneficial owner of even a
single share of the Company's common stock.
Moreover, contrary to Mr. Chevedden's assertion that the Company set a precedent
that it would inform the Proponent of any needed broker letter revision by its
November 26, 2007 email, the Company was under no obligation to continue to
identify the deficiencies in the broker letters submitted to the Company.
Following the Company's receipt of the Proposal, the Company satisfied all of
its obligations under Rule 14a-8(f)(1) by its November 19, 2007 letter to Mr.
Chevedden. The Company's November 19, 2007 letter to Mr. Chevedden fully
complied with the requirements of Rule 14a-8(f)(1). Nevertheless, following the
Company's receipt of an e-mail from Mr. Chevedden on November 23, 2007, asking
"whether or not there is any further requirement to this point in the rule 14a-8
process in addition to the broker letter attached and that was just faxed," and
although under no obligation to do so, the Company informed Mr. Chevedden via
e-mail that the broker letter was deficient and again specifically identified
the Proponent as the entity for which proof of beneficial ownership was
required. The Proponent's failure to submit proof of beneficial ownership
following this correspondence cannot be blamed on the Company.
In accordance with Rule 14a-8(j), we have enclosed six copies of this letter,
including all exhibits. In addition, a copy of this letter and the attached
exhibits are being provided simultaneously to the Proponent and the Proponent's
representative.
Very truly yours,
/s/
Anita Jane Kamenz
Attorney
Enclosures
cc: John Chevedden
Mark Filiberto, General Partner, The Great Neck Capital Appreciation LTD
Partnership
[INQUIRY LETTER]
December 19, 2007
Office of Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549
Coca-Cola Company (KO) Shareholder Position on Company No-Action Request Rule
14a-8 Proposal: Special Shareholder Meetings The Great Neck Capital Appreciation
LTD Partnership
Ladies and Gentlemen:
The company appears to claim that there should be a one-word revision in the
broker letter: "LTD" in place of "Invst."
For example:
The Great Neck Capital Appreciation LTD Partnership instead of
The Great Neck Cap App Invst Partshp
Apparently one word is different: "LTD" compared to "Invst."
However the company led the proponent to believe that the broker letter with "Invst"
was acceptable by remaining silent on this issue from the November 29, 2007 fax
of the November 26, 2007 broker letter until the company submitted its December
13, 2007 no action request.
The company set a precedent that it would inform the proponent of any needed
broker letter revision by its November 26, 2007 email exhibit asking for a
revision of the first broker letter. However no such request was made by the
company after the November 29, 2007 fax of the revised broker letter. (November
29, 2007 is legible at the top of the November 26, 2007 broker letter.) This
company silence since November 29, 2007 led the shareholder party to believe
that the company request was satisfied.
Additionally the company asks that one-word be omitted from the proposal:
"Vanguard." The company acknowledges that Vanguard supports a shareholder right
to call a special meeting, but claims there is one instance where Vanguard did
not vote in favor of this principle. The company seems to be arguing against a
phantomized version of the proposal, as if the proposal stated that Vanguard
supports a shareholder right to call a special meeting in every single instance.
For these reasons it is respectfully requested that concurrence not be granted
to the company on any basis. It is also respectfully requested that the
shareholder have the last opportunity to submit material in support of including
this proposalsince the company had the first opportunity.
Sincerely,
John Chevedden
cc: Mark Filiberto
A. Jane Kamenz<jkamenz@na.ko.com>Attorney
[INQUIRY LETTER]
January 7, 2008
Office of Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549
# 2 Coca-Cola Company (KO) Shareholder Position on Company No-Action Request
Rule 14a-8 Proposal: Special Shareholder Meetings The Great Neck Capital
Appreciation LTD Partnership
Ladies and Gentlemen:
The company January 3, 2008 letter introduces unsupported information. The
company makes a claim regarding "two entirely different entities." Yet the
company produces evidence of only one entity with a single exhibit of "Entity
Information" from the NYS Department of State.
The company also introduces a new claim that it can ignore a shareholder party
message within 14-days of the company requesting a broker letter.
The non-excluded Alaska Air Group, Inc. (March 1, 2004) case made the following
relevant point:
"Shareholder participation in corporate governance via writing and submitting
proposals is defined in simple English in the Question-and-Answer portion of
Commission's instructions. We believe that the most reasonable understanding of
this format is that it expects corporations to communicate with shareholder
proponents to resolve structural and procedural details before appealing for
guidance on disputed points to the Commission. The company declined to take this
approach."
Returning to the text of the December 19, 2007 shareholder party letter:
The company appears to claim that there should be a one-word revision in the
broker letter: "LTD" in place of "Invst."
For example:
The Great Neck Capital Appreciation LTD Partnership instead of
The Great Neck Cap App Invst Partshp
Apparently one word is different: "LTD" compared to "Invst."
However the company led the proponent to believe that the broker letter with "Invst"
was acceptable by remaining silent on this issue from the November 29, 2007 fax
of the November 26, 2007 broker letter until the company submitted its December
13, 2007 no action request.
The company set a precedent that it would inform the proponent of any needed
broker letter revision by its November 26, 2007 email exhibit asking for a
revision of the first broker letter. However no such request was made by the
company after the November 29, 2007 fax of the revised broker letter. (November
29, 2007 is legible at the top of the November 26, 2007 broker letter.) This
company silence since November 29, 2007 led the shareholder party to believe
that the company request was satisfied.
Additionally the company asks that one-word be omitted from the proposal:
"Vanguard." The company acknowledges that Vanguard supports a shareholder right
to call a special meeting, but claims there is one instance where Vanguard did
not vote in favor of this principle. The company seems to be arguing against a
phantomized version of the proposal, as if the proposal stated that Vanguard
supports a shareholder right to call a special meeting in every single instance.
Returning to new text:
A copy of this letter is forwarded to the company in a non-PDF email. In order
to expedite the rule 14a-8 process it is requested that the company forward any
addition rule 14a-8 response in the same type format to the undersigned.
For these reasons it is requested that the staff find that this resolution
cannot be omitted from the company proxy. It is also respectfully requested that
the shareholder have the last opportunity to submit material in support of
including this proposalsince the company had the first opportunity.
Sincerely,
John Chevedden
cc: Mark Filiberto
A. Jane Kamenz<jkamenz@na.ko.com>Attorney
[STAFF REPLY LETTER]
February 4, 2008
Response of the Office of Chief Counsel Division of Corporation Finance
Re: The Coca-Cola Company Incoming letter dated December 13, 2007
The proposal relates to special meetings.
There appears to be some basis for your view that Coca-Cola may exclude the
proposal under rule 14a-8(f). We note that the proponent appears to have failed
to supply, within 14 days of receipt of Coca-Cola's request, documentary support
sufficiently evidencing that it satisfied the minimum ownership requirement for
the one-year period required by rule 14a-8(b). Accordingly, we will not
recommend enforcement action to the Commission if Coca-Cola omits the proposal
from its proxy materials in reliance on rules 14a-8(b) and 14a-8(f). In reaching
this position, we have not found it necessary to address the alternative basis
for omission upon which Coca-Cola relies.
Sincerely,
/s/
Heather L. Maples
Special Counsel
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