THE COCA-COLA COMPANY STOCK OPTION AGREEMENT
Exhibit
10.5
THE
COCA-COLA COMPANY
1999
STOCK OPTION PLAN
Account
Number:
The
Coca-Cola Company ("KO") hereby grants to the optionee named below options to
purchase KO common stock at the price per share set forth below, subject to the
provisions of this Agreement together with the provisions of The Coca-Cola
Company 1999 Stock Option Plan (the "Plan"):
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optionee's
name:
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number of options
granted, each for one share of KO common stock:
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option exercise price
per share: $
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option grant
date:
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option expiration
date:
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vesting
period:
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Capitalized
terms not otherwise defined in this Agreement shall have the meaning provided in
the Plan. The Plan is incorporated into, and made a part of, this
Agreement.
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1.
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When options can be
exercised.
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(a)
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General
provisions.
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(i)
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No
option may be exercised until it has
vested.
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(ii)
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No
option shall vest prior to the first anniversary of the grant date, except
in the event of a Change in Control, death or
Disability.
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(iii)
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The
Plan describes the impact upon vesting and the expiration of options of
the following events: death, Disability, Change in Control,
various types of leaves of absence, termination of employment, change in
KO's investment in the optionee's employer which results in the employer
no longer meeting the definition of a Related Company under the Plan, and
transfer of employment to a Related
Company.
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(iv)
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Once
an option has vested, it may be exercised until it
expires. Unless otherwise provided in the Plan or in this
Agreement, the options expire on the option expiration date noted
above. For individuals located in France, the options will
expire on the earlier of: (a) six months after the date of the optionee’s
death, and (b) the option expiration date noted
above.
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(v)
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Notwithstanding
any provision to the contrary in the Plan or in this Agreement, in the
event of the optionee’s violation of Section 4 below, the options will
expire immediately at the time of such
violation.
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(b)
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Specific
provisions. Except as otherwise provided in the Plan or
in this Agreement, one fourth of the number of options covered by this
Agreement shall vest on the first, second, third and fourth anniversaries
of the grant date.
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2.
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How to exercise the
options. In order to exercise an option, it must be
vested and must not have expired, and the optionee must do the
following:
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(a)
Pay the option
exercise price. The optionee must pay the option
exercise price. The optionee shall be informed of the acceptable form and
method of payment at or before the time the optionee informs KO of his or
her intention to exercise the option. The acceptable forms and
methods of payment of the option exercise price may include payment in
cash, pursuant to a cashless exercise authorized by KO, or by delivery,
through attestation, of shares of KO common stock owned by the
optionee. Not all forms and methods of payment are available in
every country. The value of the shares delivered to pay the
option exercise price shall be computed on the basis of the most recent
reported market price at which a share of KO common stock shall have been
sold prior to the time of processing the optionee's election to deliver
shares in payment of the option exercise price, as reported on the New
York Stock Exchange Composite Transactions
listing.
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(b)
Complete all
paperwork. The optionee must complete, sign and return
any paperwork required by KO or by Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx &
Xxxxx ("Xxxxxxx Xxxxx"), or such other agent as may administer the option
program on behalf of KO from time to
time.
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(c)
Pay
applicable taxes and fees. The options are not intended
to be, and shall not be treated as, incentive stock options, as defined in
Section 422 of the Internal Revenue Code of 1986, as
amended.
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The
optionee must satisfy any tax withholding requirements regarding any
applicable taxes. If the optionee is a U.S. taxpayer, he or she
may elect to satisfy Federal, state and local income tax liabilities due
by reason of the exercise by having shares of KO common stock
withheld. The value of withheld shares shall be computed as
described in paragraph 2(a) above.
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The
optionee agrees that, should KO or any Related Company in its reasonable
judgment determine that tax withholding is required upon exercise of the
options, and if the optionee has not satisfied such tax obligation(s),
then KO may instruct Xxxxxxx Xxxxx to withhold and/or sell shares of KO
common stock acquired by the optionee upon exercise of his or her options,
or KO may deduct funds equal to the amount of withholding tax (such amount
to be determined by KO) from the optionee's salary or other funds due to
the optionee from KO.
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Irrespective
of KO’s or a Majority Owned Related Company’s action or inaction with
respect to taxes or tax withholding, the optionee acknowledges and agrees
that the ultimate liability for any and all taxes is and remains the
responsibility and liability of the optionee or the optionee’s
estate. For optionees who are International Service Associates,
all taxes remain the optionee’s responsibility, except as expressly
provided in KO’s International Service Policy and/or tax equalization
program. Optionee acknowledges that KO and any Related
Company (i) make no representations or undertaking regarding the amount or
timing of any taxes, and (ii) do not commit to structure the terms of the
option or any aspect of the transfer of the shares to reduce or eliminate
the optionee's liability for taxes.
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The
optionee agrees to pay to Xxxxxxx Xxxxx any costs associated with the sale of
shares of KO common stock acquired upon exercise of the options (whether such
shares are sold to pay the option exercise price, to satisfy tax withholding
requirements or for other reasons).
For
employees in Switzerland, the optionee agrees that the taxation of the options
will occur at the time the options are exercised.
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(d)
Right of
set-off. By accepting this Agreement, the optionee
agrees that, should KO or any Related Company in its reasonable judgment
determine that optionee owes KO, any Related Company or any affiliate any
amount due to any loan, note, obligation or indebtedness, including but
not limited to amounts owed to KO pursuant to KO’s tax equalization
program or KO’s policies with respect to travel and business expenses, and
if the optionee has not satisfied such obligation(s), then KO may instruct
Xxxxxxx Xxxxx to withhold and/or sell shares of KO common stock acquired
by the optionee upon exercise of his or her options, or KO may deduct
funds equal to the amount of such obligation from the optionee's salary or
other funds due to the optionee from
KO.
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(e)
Comply with
additional restrictions. The optionee agrees that the
Compensation Committee of the Board of Directors of KO (the “Committee”),
or its designee, may, in the exercise of its sole and absolute discretion
at or before the time the optionee informs KO of his or her intention to
exercise the option, establish any additional conditions or restrictions
with respect to the exercise of the option, including, but not limited to,
restrictions on the acceptable form or method of payment of the option
exercise price and restrictions for failing to
promptly submit to KO, any Related Company or any affiliate thereof, a tax
organizer, or such other tax-related documents reasonably requested by KO
or optionee’s employer, pursuant to KO’s tax equalization program (if
optionee is a participant in such program). The optionee shall
be informed of such restrictions. The optionee agrees to comply
with any such additional conditions or
restrictions.
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3. Options are not
transferable. The optionee may not transfer the options;
provided that upon the optionee's
death
the options may be transferred by will or by the laws of descent and
distribution. During the lifetime of
the
optionee, the options shall be exercisable only by the optionee personally or,
in the event of the optionee's
Disability
if a legal representative has been appointed to act on behalf of the optionee,
then by the optionee's
legal
representative.
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4.
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Forfeiture of options
and option gain. In the event optionee shall engage in a
“Prohibited Activity” (as defined on Schedule A hereto), at any time
during the term of the options, or within one year after termination of
optionee’s employment from KO or any Related Company, or within one year
after exercise of all or any portion of the options, whichever occurs
latest, this option shall be rescinded and, if applicable, any
gain associated with any exercise of this option shall be forfeited and
repaid to KO. Accordingly, if the optionee engages in a
Prohibited Activity, then:
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(a) as
of the date that the optionee participates in such Prohibited Activity,
all unexercised portions of this option immediately and
automatically shall terminate, be forfeited, and shall cease to be
exercisable (unless such option has been terminated sooner by operation of
another term or condition of the Plan or this Agreement);
and
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(b) within
ten days after receiving from KO written notice of the termination of this
option, the optionee shall pay to KO any and all gains associated with the
exercise of all or any portion of this option, plus interest calculated
from the time of such notice through the date of repayment to
KO. The gain associated with the exercise of any portion of
this option shall be the closing price per share on the date of the
exercise thereof,
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as
reported on the New York Stock Exchange Composite Transactions listing,
less the option exercise price per share shown above, multiplied by the
number of options exercised. Interest shall be calculated using
the weighted prime rate at SunTrust Bank,
Atlanta.
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Optionee
may be released from the effects of this Section 4 if the Committee determines
in its sole discretion that such action is in the best interest of KO and its
stockholders.
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Optionee
expressly acknowledges and affirms that the foregoing provisions of this
Section 4 are material and important terms of this Agreement, and optionee
expressly agrees that if all or any part or application of the foregoing
provisions of this Section 4 are held or determined to be invalid or
unenforceable for any reason whatsoever by a court of competent
jurisdiction in an action between optionee and KO, KO shall be entitled to
receive from optionee, in exchange for the exercise price per share shown
above, all shares of KO common stock acquired by optionee upon exercise of
any portion of the option and held by optionee. If optionee has
sold, transferred or otherwise disposed of any shares of KO common stock
acquired by optionee upon exercise of any portion of the option, KO shall
be entitled to receive from optionee the gain associated with such sale,
transfer or disposal, plus interest calculated through the date of payment
to KO. The gain associated with the sale, transfer or other
disposal of any share of KO common stock acquired by optionee upon
exercise of any portion of the option shall be the closing price per share
on the date of such sale, transfer or disposal, as reported on the New
York Stock Exchange Composite Transactions listing, less the option
exercise price per share shown above, multiplied by the number of shares
of KO common stock sold, transferred or disposed of. Interest
shall be calculated using the weighted prime rate at SunTrust Bank,
Atlanta.
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5.
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[Agreement to retain
net shares until separation. The optionee
expressly agrees as a condition of this grant that optionee will not sell
any shares obtained upon exercise of the options until after the optionee
ceases to be employed by the Company or a Related Company, except to pay
optionee’s taxes related to the options. For this purpose,
“taxes” means all federal, state and local income taxes, all social
security, Medicare and other mandatory social taxes, and wealth
taxes. Nothing in this paragraph shall be construed to limit
the optionee’s ability to execute a cashless exercise.] – [Optional
Provision if Required by Compensation
Committee]
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6.
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Stock ownership
guidelines and agreement to retain net shares. If the
optionee is subject to KO’s stock ownership guidelines, the optionee
expressly agrees as a condition of this grant that if optionee has not met
the applicable stock ownership guidelines within the time prescribed
therein, optionee will not sell the number of shares obtained upon
exercise of the options (after paying taxes and the exercise price, if
applicable) until the optionee has satisfied the optionee's share
ownership guidelines and then only shares in excess of those
guidelines. For this purpose, “taxes” means all federal, state
and local income taxes, all social security, Medicare and other mandatory
social taxes, and wealth taxes. Nothing in this paragraph shall
be construed to limit the optionee’s ability to execute a cashless
exercise.
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7. Notices. Each
notice relating to the option or its exercise shall be in
writing. Requests and other notices regarding
the exercise of options shall be delivered (whether by overnight delivery or by
mail) as follows:
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx at Xxxxxxx Xxxxx Group Employee
Services
Attention: The Coca-Cola
Company Stock Option Plan Unit
0000
Xxxxxxx Xxxxx Xxxxx
Mail Stop
04-BS-PRO
Pennington,
New Jersey 08534, USA
All
notices to KO shall be addressed as
follows: Director, Executive
Compensation
The Coca-Cola Company
One Coca-Cola Plaza
Atlanta, Georgia 30313,
USA
All
notices to the optionee shall be addressed to the principal address of the
optionee on file with KO. Either KO or the
optionee may designate a different address by written notice
to the other. Written notice to these addresses shall be effective to bind KO, the optionee and the optionee's successors and assigns.
to the other. Written notice to these addresses shall be effective to bind KO, the optionee and the optionee's successors and assigns.
8. Administrative
matters. The optionee hereby agrees that the Committee may,
subject to the provisions of the Plan,
establish such rules and regulations as it deems necessary or
advisable for the proper administration of the Plan, and may make determinations and may take such other action in connection with or in relation to the Plan as it deems necessary
or advisable. Each determination or other action made or taken pursuant to the Plan, including interpretation of the Plan and the specific conditions and provisions of this
Agreement and the options, shall be final and conclusive for all purposes and upon all persons including, but without limitation, KO, the Related Companies, the Committee, the KO
Board of Directors, officers and the affected employees of KO, and the optionees and their respective successors in interest.
advisable for the proper administration of the Plan, and may make determinations and may take such other action in connection with or in relation to the Plan as it deems necessary
or advisable. Each determination or other action made or taken pursuant to the Plan, including interpretation of the Plan and the specific conditions and provisions of this
Agreement and the options, shall be final and conclusive for all purposes and upon all persons including, but without limitation, KO, the Related Companies, the Committee, the KO
Board of Directors, officers and the affected employees of KO, and the optionees and their respective successors in interest.
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When
the issuance or transfer of KO common stock pursuant to the exercise of an
option may, in the opinion of
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KO,
conflict or be inconsistent with any applicable law or regulation of any
governmental agency having
jurisdiction,
KO reserves the right to refuse to issue or transfer that KO common
stock.
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9. Consent for
accumulation and transfer of data. The optionee consents
to the accumulation and transfer of data concerning him or her
and the options to and from KO and Xxxxxxx Xxxxx, or such other agent as
may administer the option program on behalf of KO from time to
time. In addition, the optionee understands that KO holds
certain personal information about the optionee, including but not limited
to his or her name, home address, telephone number, date of birth, social
security number, salary, nationality, job title, and details of all
options awarded, vested, unvested, or expired (the “personal
data”). Certain personal data may also constitute “sensitive
personal data” within the meaning of applicable local law. Such
data include but are not limited to the information provided above and any
changes thereto and other appropriate personal and financial data about
the optionee. The optionee hereby provides explicit consent to
KO to process any such personal data and sensitive personal
data. The optionee also hereby provides explicit consent to KO
to transfer any such personal data and sensitive personal data outside the
country in which the optionee is employed, and to the United
States. The legal persons for whom such personal data are
intended are XX, Xxxxxxx Xxxxx and any company providing services to KO in
connection with compensation planning purposes or the administration of
the Plan.
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10. Additional
consents. The optionee consents and acknowledges
that:
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(a)
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the
Plan is discretionary in nature, and KO can amend, cancel or terminate it
at any time;
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(b)
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the
grant of options under the Plan is voluntary and occasional and does not
create any contractual or other right to receive future grants of any
options, or benefits in lieu of any options, even if options have been
granted repeatedly in the past;
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(c)
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all
determinations with respect to any such future awards, including, but not
limited to, the times when options shall be granted, the option price, and
the time or times when each right shall be exercisable, will be at the
sole discretion of the Committee;
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(d)
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participation
in the Plan is voluntary and may be
occasional;
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(e)
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the
value of the options is an extraordinary item of compensation, which is
outside the scope of the optionee’s employment contract, if
any;
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(f)
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the
options or any income derived therefrom are not part of normal or expected
compensation or salary for any purposes, including, but not limited to,
calculating any termination, severance, resignation, redundancy, end of
service payments, bonuses, long-service awards, life or accident insurance
benefits, pension or retirement benefits or similar
payments;
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(g)
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except
as is otherwise explicitly provided in this Agreement and the Plan,
non-vested options are forfeited immediately following termination of
employment for any reason, and vested options expire the earlier of: a)
six months following termination of employment for any reason, and b) the
expiration date noted in the
option;
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(h)
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in
the event of involuntary termination of the optionee’s employment, the
optionee’s eligibility to receive options under the Plan, if any, will
terminate effective as of the date that the optionee is no longer actively
employed regardless of any reasonable notice period mandated under local
law; furthermore, in the event of involuntary termination of employment,
the optionee’s ability to exercise options under the Plan will be measured
by the date of termination of the optionee’s active employment pursuant to
the terms of the Plan and will not be extended by any reasonable notice
period mandated under local law;
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(i)
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the
future value of the shares purchased under the Plan is unknown and cannot
be predicted with certainty;
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(j)
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(for
individuals other than employees of KO) the options have been granted to
the optionee in his or her status as an employee of his or her employer
and can in no event be understood or interpreted to mean that XX is his or
her employer or that he or she has an employment relationship with
XX;
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(k)
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no
claim or entitlement to compensation or damages arises from the
termination of the options or diminution in value of the options or shares
purchased under the Plan, and the optionee irrevocably releases KO and his
or her employer, if different from KO, from any such claim that may
arise;
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(l)
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participation
in the Plan shall not create a right to further employment with the
optionee’s employer and shall not interfere with the ability of the
optionee’s employer to terminate the optionee’s employment relationship at
any time, with or without cause;
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(m)
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the
terms of the optionee’s employment with KO do not include the grant of
stock options; and
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(n)
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if
all or any part or application of the provisions of this Agreement are
held or determined to be invalid or unenforceable for any reason
whatsoever by a court of competent jurisdiction in an action between
optionee and KO, each and all of the other provisions of this Agreement
shall remain in full force and
effect.
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11. Governing
law. This Agreement has been made in and shall be construed
under and in accordance with
the
laws of the State of Delaware, USA.
12. Headings. Paragraph
headings are included for convenience and shall not affect the meaning or
interpretation
of
this Agreement.
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THE
COCA-COLA COMPANY
By: The
Committee
Authorized Signature
Using
the Xxxxxxx Xxxxx voice response system or other available means, the
optionee must accept the above options to purchase shares of KO common stock in
accordance with and subject to the terms and conditions of this Agreement and
the Plan, acknowledge that he or she has read this Agreement and the Plan, and
agree to be bound by this Agreement, the Plan and the actions of the
Committee. If he or she does not do so prior to [Date],
then KO may declare the option grant null and void at any time. Also, in the
unfortunate event that death occurs before this Agreement has been
accepted, this option grant will be voided, which means the options
will terminate automatically and cannot be transferred to the optionee's heirs
pursuant to the optionee's will or the laws of descent and
distribution.
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Schedule
A
Prohibited
Activities
For
purposes of this Agreement, the term “Prohibited Activity” shall include any and
all of the following:
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(a)
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Non-Disparagement –
making any statement, written or verbal, in any forum or media, or taking
any action in disparagement of KO or any Related Company or affiliate
thereof, including but not limited to negative references to KO or its
products, services, corporate policies, or current or former officers or
employees, customers, suppliers, or business partners or
associates;
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(b)
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No Publicity –
publishing any opinion, fact, or material, delivering any lecture or
address, participating in the making of any film, radio broadcast or
television transmission, or communicating with any representative of the
media relating to confidential matters regarding the business or affairs
of KO which optionee was involved with during optionee’s
employment;
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(c)
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Non-Disclosure of Trade
Secrets – failure to hold in confidence all Trade Secrets of KO
that came into optionee’s knowledge during optionee’s employment by KO or
any Related Company, or disclosing, publishing, or making use of at any
time such Trade Secrets, where the term "Trade Secret" means any technical
or non-technical data, formula, pattern, compilation, program, device,
method, technique, drawing, process, financial data, financial plan,
product plan, list of actual or potential customers or suppliers or other
information similar to any of the foregoing, which (i) derives economic
value, actual or potential, from not being generally known to and not
being readily ascertainable by proper means by, other persons who can
derive economic value from its disclosure or use, and (ii) is the subject
of efforts that are reasonable under the circumstances to maintain its
secrecy;
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(d)
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Non-Disclosure of Confidential
Information – failure to hold in confidence all Confidential
Information of KO that came into optionee’s knowledge during optionee’s
employment by KO or any Related Company, or disclosing, publishing, or
making use of such Confidential Information, where the term "Confidential
Information" means any data or information, other than Trade Secrets, that
is valuable to KO and not generally known to the public or to competitors
of KO;
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(e)
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Return of Materials –
failure of optionee, in the event of optionee’s termination of
employment for any reason, promptly to deliver to KO all memoranda, notes,
records, manuals or other documents, including all copies of such
materials and all documentation prepared or produced in connection
therewith, containing Trade Secrets or Confidential Information regarding
KO's business, whether made or compiled by optionee or furnished to
optionee by virtue of optionee’s employment with KO or a Related Company,
or failure promptly to deliver to KO all vehicles, computers, credit
cards, telephones, handheld electronic devices, office equipment, and
other property furnished to optionee by virtue of optionee’s employment
with KO or a Related Company;
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(f)
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Non-Compete – rendering
services for any organization which, or engaging directly or indirectly in
any business which, in the sole judgment of the Committee or the Chief
Executive Officer of KO or any senior officer designated by the Committee,
is or becomes competitive with KO;
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(g)
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Non-Solicitation
–soliciting or attempting to solicit for employment for or on behalf of
any corporation, partnership, or other business entity any employee of the
Company with whom optionee had professional interaction during the last
twelve months of optionee’s employment with KO;
or
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(h)
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Violation of KO Policies
– violating any written policies of KO or optionee’s employer
applicable to optionee, including without limitation, KO’s xxxxxxx xxxxxxx
policy.
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Nothing
in this Agreement is intended to or shall be interpreted as diminishing or
otherwise limiting KO’s right under applicable state law or any prior agreement
I have signed or made with KO regarding trade secrets, confidential information,
or intellectual property.
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