EXHIBIT 99.3
[COMPOSITE VERSION REFLECTING AMENDMENT]
UNITED STATES OF AMERICA
Before the
SECURITIES AND EXCHANGE COMMISSION
ADMINISTRATIVE PROCEEDING
File No.
In the Matter of :
:
The Coca-Cola Company, : OFFER OF SETTLEMENT
: OF THE COCA-COLA COMPANY
Respondent, :
:
:
- ------------------------------------:
I.
The Coca-Cola Company ("Coca-Cola" or "Respondent"), pursuant to Rule
240(a) of the Rules of Practice of the Securities and Exchange Commission
("Commission") [17 C.F.R. [Section] 201.240(a)] submits this Offer of Settlement
("Offer") in anticipation of cease-and-desist proceedings to be instituted
against it by the Commission, pursuant to Section 8A of the Securities Act of
1933 ("Securities Act") and Section 21C of the Securities Exchange Act of 1934
("Exchange Act").
II.
This Offer is submitted solely for the purpose of settling these
proceedings, with the express understanding that it will not be used in any way
in these or any other proceedings, unless the Offer is accepted by the
Commission. If the Offer is not accepted by the Commission, the Offer is
withdrawn without prejudice to Respondent and shall not become a part of the
record in these or any other proceedings, except for the waiver expressed in
Section V with respect to Rule 240(c)(5) of the Commission's Rules of Practice
[17 C.F.R. [Section] 201.240(c)(5)].
III.
Consistent with the provisions of 17 C.F.R. [Section] 202.5(f),
Respondent waives any claim of Double Jeopardy based upon the settlement of this
proceeding, including the imposition of any remedy or civil penalty herein.
IV.
Respondent hereby waives any rights under the Equal Access to Justice
Act, the Small Business Regulatory Enforcement Fairness Act of 1996 or any other
provision of law to pursue reimbursement of attorney's fees or other fees,
expenses or costs expended by Respondent to defend
against this action. For these purposes, Respondent agrees that Respondent is
not the prevailing party in this action since the parties have reached a good
faith settlement.
V.
By submitting this Offer, Respondent hereby acknowledges its waiver of
those rights specified in Rules 240(c)(4) and (5) [17 C.F.R. [Section]
201.240(c)(4) and (5)] of the Commission's Rules of Practice. Respondent also
hereby waives service of the Order.
VI.
Solely for the purpose of these proceedings and any other proceedings
brought by or on behalf of the Commission or in which the Commission is a party
and without admitting or denying the findings contained in the Commission's
Order Instituting Cease-and-Desist Proceedings, Making Findings, And Imposing a
Cease-and-Desist Order Pursuant to Section 8A of the Securities Act and Section
21C of the Exchange Act ("Order"), Respondent consents to the entry of the
attached Order by the Commission.
VII.
Respondent undertakes to:
A. Permanently maintain the remedial efforts or the functional
equivalents thereof set forth in Paragraph 43 of the Order, except as may be
approved by the Commission;
B. Require its Audit Committee, within 90 days of the date of the
Order, to review with management of Respondent the process by which the MD&A
sections of periodic reports filed by Respondent with the Commission are
prepared and material information about the business and prospects, including
but not limited to, trend information and known events and uncertainties that
may have a material impact on liquidity or future financial performance, is
identified for discussion in the MD&A sections of such reports, and to approve a
set of criteria to be used by its Disclosure Committee and management to
reasonably assure that appropriate items are identified and discussed. The Audit
Committee will meet periodically, at least annually, with the Chair of the
Disclosure Committee to review such criteria, and will review and discuss with
the Chief Financial Officer the proposed MD&A section of each periodic report to
be filed with the Commission;
C. Require its Disclosure Committee to: (i) use the aforementioned
criteria to identify items that might need to be disclosed within the MD&A
section of Respondent's periodic reports filed with the Commission; and (ii) use
the aforementioned criteria to evaluate those items and recommend whether, and
to what extent, disclosure is appropriate with respect to each item. The Chair
of the Disclosure Committee will also report to the Audit Committee, on a
quarterly basis, any recommended departures from the aforementioned criteria and
the rationale supporting each such recommendation;
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D. Adhere to the guidance articulated in SEC Staff Accounting Bulletin
No. 101 on disclosures that are required with respect to the recognition of
revenue;
E. Maintain for ten (10) years documentation sufficient to show for
every of its Forms 8-K filed with the Commission, the preparers of each Form 8-K
and those persons who reviewed and approved each Form 8-K; and
F. Provide a written report, within 120 days of the date of this Order,
to the Commission staff that details the Respondent's implementation of the
undertakings articulated herein.
VIII.
Respondent hereby:
A. Admits the jurisdiction of the Commission over it and over the
matters set forth in the Order;
B. Consents to the issuance of the Order by the Commission, without
otherwise admitting or denying the findings set forth in the Order, in which the
Commission:
1. finds that Coca-Cola violated Sections 17(a)(2) and
17(a)(3) of the Securities Act and Section 13(a) of the Exchange Act and Rules
12b-20, 13a-1, 13a-11, and 13a-13 thereunder.
2. Orders that Coca-Cola cease and desist from committing or
causing any violations and any future violations of Sections 17(a)(2) and
17(a)(3) of the Securities Act and Section 13(a) of the Exchange Act and Rules
12b-20, 13a-1, 13a-11, and 13a-13 promulgated thereunder.
IX.
Respondent understands and agrees to comply with the Commission's
policy "not to permit a defendant or respondent to consent to a judgment or
order that imposes a sanction while denying the allegations in the complaint or
order for proceedings" [17 C.F.R. [Section] 202.5(e)]. In compliance with this
policy, Respondent agrees: (i) not to take any action or to make or permit to be
made any public statement denying, directly or indirectly, any finding in the
Order or creating the impression that the Order is without factual basis; and
(ii) that upon the filing of this Offer of Settlement, Respondent hereby
withdraws any papers previously filed in this proceeding to the extent that they
deny, directly or indirectly, any finding in the Order. If Respondent breaches
this agreement, the Division of Enforcement may petition the Commission to
vacate the Order and restore this proceeding to its active docket. Nothing in
this provision affects Respondent's: (i) testimonial obligations; or (ii) right
to take legal or factual positions in litigation or other legal proceedings in
which the Commission is not a party.
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X.
Respondent states that it has read and understands the foregoing Offer,
that this Offer is made voluntarily, and that no promises, offers, threats, or
inducements of any kind or nature whatsoever have been made by the Commission or
any member, officer, employee, agent, or representative of the Commission in
consideration of this Offer or otherwise to induce it to submit to this Offer.
23rd Day of March, 2005 /s/ Geoffrey J. Kelly
------------------------
The Coca-Cola Company
G. J. Kelly
------------------------
(NAME)
Acting General Counsel
------------------------
(TITLE)
[TITLE]
STATE OF GEORGIA }
} ss:
COUNTY OF FULTON }
The foregoing instrument was acknowledged before me this 23 day of March,
2005, by G. J. Kelly, __X__ who is personally - known to me or ____ who has
produced a _____________ driver's license as identification and who did take an
oath.
Jo Ann Crabb
Notary Public
State of Georgia
Commission Number : [STAMP]
Commission Expiration :
Notary Public Dekalb County, GA
My Commission Expires June 19th, 2006
Jo Ann Crabb
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