Exhibit 10.1


 





 


	
   

  	
  COCA-COLA PLAZA

  	
   

  
	
   

  	
  ATLANTA, GEORGIA

  	
   

  
	
  ALEXANDER B. CUMMINGS

  	
   

  	
  ADDRESS REPLY TO:

  
	
  EXECUTIVE VICE PRESIDENT AND

  	
   

  	
  P.O. BOX 1734

  
	
  CHIEF ADMINISTRATIVE OFFICER

  	
   

  	
  ATLANTA, GEORGIA 30301

  
	
   

  	
   

  	
  


  

  
	
   

  	
   

  	
  404-676-6926

  
	
   

  	
   

  	
  FAX: 404-515-2411

  



 


June 22, 2009


 


Ms. Cynthia McCague


Atlanta, Georgia  30342


 


Dear Cynthia:


 


This letter provides the
terms of your separation agreement with The Coca-Cola Company (the “Company”).


 


1.               Effective with the appointment of a successor and no
later than December 31, 2009 (the “Transition Date”), you will step down
from your current position of Senior Vice President Human Resources and resign
your position as an officer of the Company. 
From the appointment of your successor through April 30, 2010, you
will continue to work your normal schedule as a Senior Advisor working on
special projects as reasonably requested and assigned through my office.  From the Transition Date through the “Separation
Date” (as hereinafter defined) you shall remain an active employee of the
Company, while holding the role as a Senior Advisor working on special projects
as reasonably requested and assigned through my office.  In connection therewith, you will attend
meetings at the Company’s offices or elsewhere as reasonably required.


 


2.               You and the Company have mutually agreed that your
employment with the Company will terminate on April 30, 2010 (the “Separation
Date”).  You shall remain entitled to
receive and be paid all compensation and benefits otherwise arising and
accruing or available to you through and including the Separation Date.  Additionally, you will be reimbursed for up
to $10,000 in financial planning and related expenses incurred by you in
2009.  You will also be reimbursed for up
to $10,000 in financial planning and related expenses incurred by you in 2010
prior to the Separation Date.


 


3.               If you sign the enclosed release, you will receive a
benefit under the Company’s Severance Pay Plan equivalent to two years of
salary, based on your current annual salary of $525,000.  This amount will be paid in a lump sum amount
within fourteen (14) days after your Separation Date.  If payment or provision of any amount or
benefit hereunder that is subject to Section 409A of the Internal Revenue
Code of 1986, as amended (the “IRC”) at the time specified herein would subject
such amount or benefit to any additional tax under Section 409A, the
payment or provision of such amount or benefit shall be postponed to the
earliest commencement date on which the payment or provision of such amount or
benefit could be made without incurring such additional tax.


 

















 


4.               Your retirement benefits will consist of those
benefits from the Employee Retirement Plan, the Supplemental Pension Benefit
Plan, the Thrift and Investment Plan, the Deferred Compensation Plan, the
Supplemental Thrift Plan, and all other plans in which you participate and in
which benefits are vested as of your Separation Date.  Payments under the Supplemental Pension Plan
will begin approximately six months following your Separation Date.  You will receive a lump sum distribution of
your Supplemental Thrift Plan account pursuant to the terms of the plan, paid
in a lump sum approximately six months following your Separation Date.


 


5.               You will receive an annual incentive award for
2009.  The actual payment amount is
contingent upon actual Company performance and will be based on 100% of target
for your individual performance.  Your
change in role and your agreed upon separation from the Company shall have no
effect on the amount of this payment. Any award will be paid on or before March 15,
2010. You will receive a pro-rata annual
incentive award for 2010, based on your current base salary contingent on
actual Company performance and based on 100% of target for your personal
performance.  The award will be paid on
or before March 15, 2011.


 


6.               Pursuant to the terms of the Company’s long term
incentive programs and plans and your related Restricted Stock Agreements, your
rights and benefits under each of the plans are summarized below.  You will not receive any additional equity
grants.


 


2005-2007 Plan


 


·                  The number of shares earned will be
released in December 2009.


 


2006-2008 Plan


 


·                  The number of shares earned will be
released within six months of your Separation Date.


 


2007-2009 Plan


 


·                  The Performance Period continues.  Shares remain subject to forfeiture until
certification of results (February 2010). 
If the Performance Criteria are met, the applicable number of shares
will be released to you within six months of your Separation Date.


 


2008-2010 Plan


 


·                  The Performance Period continues.  Shares remain subject to forfeiture until
certification of results (February 2011). 
If the Performance Criteria are met, the applicable number of shares
previously granted will be released to you on March 1, 2011.


 

















 


8.               All options which you received in or before 2008 will
be fully vested as of your Separation Date and exercisable according to the
terms of the Company’s applicable stock option plans and programs as well as
your related Stock Option Grant Agreements. 
75% of the options granted to you in 2009 will be forfeited.  When you exercise your vested stock options,
you will be personally liable for paying any taxes owed on such exercises.  You will not receive any additional stock
option grants.


 


9.               You will receive retiree
health coverage from and after the Separation Date.


 


10.         The Company will provide and directly pay for up to
$40,000 in executive coaching and transitional services to be mutually
agreed.  The Company’s agreement shall
not be unreasonably withheld or delayed.


 


11.         The terms and conditions in this letter are further
conditioned upon your signing (as of the Separation Date) and adhering to the
attached Full and Complete Release and Agreement on Confidentiality and
Competition.


 


Cynthia, thank you for
the time you have devoted to the Company. 
Please feel free to give me a call if you have any questions or would
like more information regarding the above. 
While management has approved the terms of this agreement, it is subject
to Compensation Committee approval, which will be requested at such Committee’s
next scheduled meeting (in July) and the Agreement will become effective at
that time.


 


	
  Sincerely,

  	
   

  
	
   

  	
   

  
	
  /s/ Alex Cummings

  	
   

  
	
   

  	
   

  
	
  Alex Cummings

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Agreed to and accepted
  this 22nd day of June, 2009.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Cynthia McCague

  	
   

  
	
  Cynthia McCague

  	
   

  



 














 


FULL AND COMPLETE RELEASE


AND AGREEMENT ON COMPETITION,


TRADE SECRETS AND CONFIDENTIALITY


 


Release.


 


I, Cynthia McCague, in
consideration of severance payments under The Coca-Cola Company Severance Pay
Plan, the payments and benefits described in the attached separation letter
dated June 22, 2009 (the “Separation Letter”), and other good and
valuable consideration, for myself and my heirs, executors, administrators and
assigns, do hereby knowingly and voluntarily release and forever discharge The
Coca-Cola Company and its subsidiaries, affiliates, joint ventures, joint
venture partners, and benefit plans (collectively “the Company”), and their
respective current and former directors, officers, administrators, trustees,
employees, agents, and other representatives (collectively and along with the
Company the “Releasees”), from all debts, claims, actions, causes of action
(including without limitation those under the Fair Labor Standards Act of 1938,
as amended, 29 U.S.C. § 201 et seq. (the “FLSA”); the
Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C.
§ 1001 et seq. (“ERISA”); the Worker Adjustment and
Retraining Notification Act of 1988, 29 U.S.C. § 2101 et seq.
(“WARN”); and those federal, state, local, and foreign laws prohibiting employment
discrimination based on age, sex, race, color, national origin, religion,
disability, veteran or marital status, sexual orientation, or any other
protected trait or characteristic, or retaliation for engaging in any protected
activity, including without limitation the Age Discrimination in Employment Act
of 1967, 29 U.S.C. § 621 et seq. (the “ADEA”), as
amended by the Older Workers Benefit Protection Act, 104 Stat. 978 (the “OWBPA”);
the Equal Pay Act of 1963, 9 U.S.C.§ 206, et seq. (the
“EPA”); Title VII of The Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq. (“Title VII”); the Civil
Rights Act of 1866, 42 U.S.C. § 1981; the Civil Rights Act of
1991, 42 U.S.C. § 1981a; the Americans with Disabilities Act,
42 U.S.C. § 12101 et seq. (the “ADA”); the
Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq.;
the Family and Medical Leave Act of 1993, 28 U.S.C. §§ 2601 and 


 

















 


2611 et seq.
(the “FMLA”); and comparable state, local, and foreign causes of action,
whether statutory or common law), suits, dues, sums of money, accounts,
reckonings, covenants, contracts, claims for costs or attorneys’ fees,
controversies, agreements, promises, and all liabilities of any kind or nature
whatsoever, at law, in equity, or otherwise, KNOWN OR UNKNOWN, fixed or
contingent, which I ever had, now have, or may have, or which I, my heirs,
executors, administrators or assigns hereafter can, shall, or may have, from
the beginning of time through the date on which I sign this Full and Complete
Release and Agreement on Trade Secrets, Competition and Confidentiality (this “Agreement”),
including without limitation those arising out of or related to my employment
or separation from employment with the Company (collectively the “Released
Claims”).


 


I acknowledge and represent
that (1) I have received all leave required under the FMLA, and (2) do
not claim that Releasees violated or denied me rights under the FMLA.  I further acknowledge and represent that I (1) was
properly classified under the Fair Labor Standards Act of 1938, as amended (“FLSA”),
(2) have been fully paid for hours I worked for the Company and (3) do
not claim that Releasees violated or denied me rights under the FLSA.


 


I fully understand and
agree that:


 


1.              this Agreement is in exchange for severance payments
under The Coca-Cola Company Severance Pay Plan, the Separation Letter and other
good and valuable consideration, to which I would otherwise not be entitled;


 


2.              no rights or claims are released or waived that may
arise after the date this Agreement is signed by me, and no any indemnification
rights I may have are not released or waived;


 


3.              nothing in this Agreement shall prohibit me from
challenging the validity of the above release as to any claims under the ADEA
or from filing a 


 

















 


charge or complaint with
the Equal Employment Opportunity Commission (the “EEOC”) or any other
government agency so long as I do not seek, accept or receive any individual
relief whether monetary or equitable in or as a result of any such charge or
complaint;


 


4.              I am hereby advised to consult with an attorney before
signing this Agreement;


 


5.              I have 21 days from my receipt of this Agreement
within which to consider whether to sign it;


 


6.              I have seven days following my signature of this
Agreement to revoke the Agreement; and


 


7.              this Agreement shall not become effective or
enforceable until the revocation period of seven days has expired.


 


If I choose to revoke
this Agreement, I must do so by notifying the Company in writing.  This written notice of revocation must be mailed
by U.S. first class mail, or U.S. certified mail within the seven-day
revocation period and addressed as follows:


 


The Coca-Cola Company


Ginny Sutton


One Coca-Cola Plaza


Atlanta, GA 30313


 


If there is any claim for
loss of consortium, or any other similar claim, arising out of or related to my
employment or separation of employment with the Company, I will indemnify and
hold the Company harmless from any liability, including costs and expenses (as
well as reasonable attorneys’ fees) incurred by the Company as a result of any
such claim.


 


Future Cooperation.


 


I agree and covenant that I shall, to the extent
reasonably requested in writing, cooperate with and serve in any capacity
requested by the Company in any investigation and/or threatened or pending litigation
(now or in the future) in which the 


 

















 


Company is a party, and regarding which I, by virtue
of my employment with the Company, have knowledge or information relevant to
said litigation, including, but not limited to, (1) meeting with
representatives of the Company to provide truthful information regarding my
knowledge, (2) acting as the Company’s representative, and (3) providing,
in any jurisdiction in which the Company requests, truthful testimony relevant
to said litigation.  The Company shall
pay directly or reimburse me for any and all reasonable costs and expenses (as
well as reasonable attorneys’ fees) incurred by me in connection with my
complying with my obligations hereunder.


 


Trade
Secrets and Confidential Information.


 


I covenant and agree that I have held and shall
continue to hold in confidence all Trade Secrets of the Company that came into
my knowledge during my employment by the Company and shall not disclose,
publish or make use of at any time such Trade Secrets for as long as the
information remains a Trade Secret.  “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 is not
commonly known or available to the public and which (1) 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 (2) is the subject of efforts that
are reasonable under the circumstances to maintain its secrecy.


 


I
also covenant and agree that, for the period beginning on the date I sign this
Agreement and ending two years after the date my employment ends, (“Nondisclosure
Period”), I will hold in confidence all Confidential Information of the Company
that came into my knowledge during my employment by the Company and will not
disclose, publish or make use of such Confidential Information.  “Confidential


 

















 


Information”
means any data or information, other than Trade Secrets, that is valuable to
the Company and not generally known to the public or to competitors of the Company.


 


The
restrictions stated in this Agreement are in addition to and not in lieu of
protections afforded to trade secrets and confidential information under
applicable state law or any prior agreement I have signed or made with the
Company regarding trade secrets, confidential information, or intellectual
property.  Nothing in this Agreement is
intended to or shall be interpreted as diminishing or otherwise limiting the
Company’s right under applicable state law any prior agreement I have signed or
made with the Company regarding trade secrets, confidential information, or
intellectual property.


 


Return of Materials.


 


I
further covenant and agree that I have or shall promptly deliver to the Company
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 the
Company’s business, whether made or compiled by me or furnished to me by virtue
of my employment with the Company.  I
have or shall promptly deliver to the Company all vehicles, computers, credit
cards, telephones, handheld electronic devices, office equipment, and other
property furnished to me by virtue of my employment with the Company.


 


No
Publicity.


 


During the Nondisclosure
Period, I will not publish any opinion, fact, or material, deliver any lecture
or address, participate in the making of any film, radio broadcast or
television transmission, or communicate with any representative of the media
relating to the business or affairs of the Company.  I understand that nothing in this Agreement


 

















 


or in this paragraph: (1) is
intended in any way to intimidate, coerce, deter, persuade, or compensate me
with respect to providing, withholding, or restricting any communication
whatsoever to the extent prohibited by law; (2) shall prevent me from
filing and administrative charge with the EEOC or participating in an
investigation or proceeding by the EEOC or any other governmental agency; or (3) shall
prevent me from providing testimony or evidence if I am subpoenaed or ordered
by a court or other governmental authority to do so.


 


Non Compete and Non Solicitation.


 


Definitions.


 


For the purposes of this
Section, the following definitions apply:


 


(a)                                  “Non Solicitation Period” means the
period beginning on the date I sign this Agreement and ending on April 30,
2012.


 


(b)                                 “Restricted Activities” means involvement
in, development or oversight of human resource activities or strategies for
Restricted Businesses.


 


(c)                                  “Territory” means any location in which
the Company conducts business.


 


(d)                                 “Restricted Businesses” means 1)
companies whose primary business is the manufacture, sale, distribution and
marketing of carbonated soft drinks, coffee, tea, water, juices or fruit-based
beverages (“Non-alcoholic Beverages”), and 2) companies whose business includes
the manufacture, sale, distribution and marketing of Non-alcoholic Beverages,
but for whom such business(es) may not be the company’s primary business (“Non-Beverage
Companies”).  Notwithstanding the
foregoing, I may perform services for Non-Beverage Companies (other than
PepsiCo, its subsidiaries and affiliates, including but not limited to Pepsi
Bottling Group) that have a Competing Business Segment, provided I do not
perform services for such Competing Business Segment, and provided I notify the
Chief Administrative Officer of the Company of the nature of such service in
writing within a reasonable time prior to beginning of such services.  For purposes hereof, “Competing Business
Segment” means


 

















 


any subsidiary, division
or unit of the business of a company, where such subsidiary, division or unit
manufactures, sells, distributes or markets Non-alcoholic Beverages.


 


Non
Compete.


 


I hereby covenant that I
will not, within the Territory prior to April 30, 2012, without the prior
written consent of the Chief Administrative Officer of the Company, engage in
any Restricted Activities for or on behalf of (including in a consulting
capacity) any Restricted Business.  For
the avoidance of doubt, notwithstanding anything to the contrary set forth in
this agreement, commencing May 1, 2010, without the Company’s knowledge or
approval I may accept a position as member of a Board of Directors of any
Non-Beverage Companies, and commencing May 1, 2012, I may accept a
position as member of a Board of Directors of any company, including those
whose business includes the manufacture, sale, distribution and marketing of
Non-alcoholic Beverages.


 


Non
Solicitation of Employees.


 


I hereby covenant and
agree that I will not, within the Territory and during the Non Solicitation
Period, without the prior written consent of the Chief Administrative Officer
of the Company, solicit or attempt to solicit for employment for or on behalf
of any corporation, partnership, venture or other business entity any person
who, on the last day of my employment with the Company or within twelve months
prior to that date, was employed by the Company and with whom I had
professional interaction during the last twelve months of my employment with
the Company (whether or not such person would commit a breach of contract),
provided, however, that such prohibition shall not apply to persons
involuntarily terminated by the Company.


 














 


Non Solicitation
of Customers.


 


I hereby covenant and
agree that I will not, for or on behalf of any Restricted Business,  within the Territory and during the Non
Solicitation Period, without the prior written consent of the Chief
Administrative Officer of the Company, solicit or attempt to solicit, directly
or indirectly, any business related to the Restricted Businesses from any of
the Company’s customers, including actively sought prospective customers, with
whom I had professional interaction during my employment with the Company.


 


Reasonable
and Necessary Restrictions.


 


I
acknowledge that during the course of my employment with the Company I have
received or will receive and had or will have access to Confidential
Information and Trade Secrets of the Company, including but not limited to
confidential and secret business and marketing plans, strategies, and studies,
detailed client/customer/bottler lists and information relating to the
operations and business requirements of those clients/customers/bottlers and,
accordingly, I am willing to enter into the covenants contained in this
Agreement in order to provide the Company with what I consider to be reasonable
protections for its legitimate business interests.


 


I do
not disagree with and will not object to the Company’s position that the
restrictions, prohibitions and other provisions hereof, are reasonable, fair
and equitable in scope, terms and duration, and are necessary to protect the
legitimate business interests of the Company. 
I covenant that I will not challenge the enforceability of this
Agreement nor will I raise any equitable defense to its enforcement except in
response to any breach by the Company of its obligations to me.


 


I
acknowledge and agree that in the event I breach, or threaten in any way to
breach, or it is inevitable that I will breach, any of the provisions of this
Agreement, damages shall be an inadequate remedy and the Company shall be
entitled to seek,


 

















 


without bond, injunctive
or other equitable relief in addition to all other rights otherwise available
to the Company at law or in equity; provided, however, that within fifteen days
of its learning of my alleged breached or threatened breach, the Company shall
provide me with written notice and a reasonable opportunity to cure.


 


Complete Agreement.


 


This
Agreement and the Separation Letter constitute the complete understanding
between me and the Company in respect of the subject matter of this Agreement
and, and supersedes all prior agreements relating to the same subject matter.  I have not relied upon any representations,
promises or agreements of any kind except those set forth herein in signing
this Agreement.


 


Severability.


 


In
the event that any provision of this Agreement should be held to be invalid or
unenforceable, each and all of the other provisions of this Agreement shall
remain in full force and effect.  If any
provision of this Agreement is found to be invalid or unenforceable, such
provision shall be modified as necessary to permit this Agreement to be upheld
and enforced to the maximum extent permitted by law.


 


Governing Law.


 


Except
to the extent preempted by Federal Law, this Agreement is to be governed and
enforced under the laws of the State of Delaware (except to the extent that
Delaware conflicts of law rules would call for the application of the law
of another jurisdiction) and any and all disputes arising under this Agreement
are to be resolved exclusively by courts sitting in Delaware.  I hereby consent to the jurisdiction of such
courts.


 


Successors and Assigns.


 


This
Agreement inures to the benefit of the Company and its successors and assigns.


 

















 


Amendment/Waiver.


 


No amendment, modification or discharge of this
Agreement shall be valid or binding unless set forth in writing and duly
executed by each of the parties hereto.


 


Acknowledgment.


 


I have carefully read this Agreement, fully
understand each of its terms and conditions, and intend to abide by this
Agreement in every respect.  As such, I
knowingly and voluntarily sign this Agreement.


 


 


	
   

  	
  Signature:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Cynthia McCague

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE
  COCA-COLA COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  



 

















 


Summary
of Anticipated Consulting Agreement


 


It is anticipated that the
Company will enter into a one-year consulting agreement with Cynthia McCague
effective May 1, 2010.  Under the
agreement, McCague shall provide consultation to management of Company and work
on special projects as requested by the Chief Administrative Officer and the
Chief People Officer.  McCague will work
a maximum of 43 hours per month, with a guaranteed payment for 40 hours per
month.  She will be paid $625 per hour.