Exhibit 99.2
FULL AND COMPLETE RELEASE
AND AGREEMENT ON COMPETITION,
TRADE SECRETS AND CONFIDENTIALITY
Agreement.
I, Xxxxx Xxxxxxx, in consideration of discretionary payments under
performance-based bonus plans and programs of The Coca-Cola Company, 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, 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. [Section]. 201
et seq.; the Employee Retirement Income Security Act of 1974, as amended, 29
U.S.C. [Section] 1001 et seq.; the Worker Adjustment and Retraining Notification
Act of 1988, 29 U.S.C. [Section] 2101 et seq.; 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. [Section] 621 et seq., as
amended by the Older Workers Benefit Protection Act, P.L. 101-433; the Equal Pay
Act of 1963, 9 U.S.C.[Section] 206, et seq.; Title VII of The Civil Rights Act
of 1964, as amended, 42 U.S.C. [Section] 2000e et seq.; the Civil Rights Act of
1866, 42 U.S.C. [Section] 1981; the Civil Rights Act of 1991, 42 U.S.C.
[Section] 1981a; the Americans with Disabilities Act, 42 U.S.C. [Section] 12101
et seq.; the Rehabilitation Act of 1973, 29 U.S.C. [Section] 791 et seq.; the
Family and Medical Leave Act of 1993, 28 U.S.C. [Sections] 2601 and 2611 et
seq.; 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 had before the effective date of 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"). Nothing in this Agreement shall constitute a release, discharge or
waiver of any claim that arises on or after the effective date of this
Agreement.
I fully understand and agree that:
1. this Agreement is in exchange for special compensation to which
I would otherwise not be entitled;
2. I am hereby advised to consult with an attorney before signing
this Agreement;
3. I have 21 days from my receipt of this Agreement within which
to consider whether to sign it;
4. I have seven days following my signature of this Agreement to
revoke the Agreement; and
5. 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.
I additionally understand and agree that this Agreement is not and
shall not be construed to be an admission of liability of any kind on the part
of the Company or any of the other persons or entities hereby released.
The Company, in consideration of the agreements set forth herein, in
the Letter Agreement dated April 1, 2005, and other good and valuable
consideration, does hereby knowingly and
voluntarily dismiss and forever discharge Xxxxx Xxxxxxx from all debts, claims,
actions, causes of action, suits, dues, sums of money, accounts, reckonings,
covenants, contracts, claims for costs or attorneys' fees, controversies,
agreements, promises , and all liabilities of any kind of nature whatsoever, at
law, in equity, or otherwise, KNOWN OR UNKNOWN, fixed or contingent, which it
had before the effective date of this Agreement, including without limitation
those arising out of or related to Xx. Xxxxxxx'x employment or separation from
employment with the Company.
Future Cooperation.
I covenant and agree that I shall, to the extent reasonably requested
in writing, cooperate with 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 (i)
meeting with representatives of the Company to provide truthful information
regarding my knowledge, and (ii) providing, in any jurisdiction in which the
Company requests, truthful testimony relevant to said litigation, provided the
Company pays me reasonable compensation and reimburses me for reasonable
expenses incurred in connection with such cooperation.
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 (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.
I also covenant and agree that, for the period beginning on the date I
sign this Agreement and ending two years after I have signed this Agreement
("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
or 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 prior employment with the Company. I 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 prior 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 confidential matters regarding the
business or affairs of the Company which I was involved with during my
employment, except as required by law.
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 January 31, 2007.
(b) "Restricted Activities" means providing legal services to
Restricted Businesses.
(c) "Territory" means the United States of America.
(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 directly for such Competing
Business Segment, and provided I notify the Chief Executive 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 with the Company that I will not, within the
Territory prior to January 31, 2007, without the prior written consent of the
Chief Executive Officer of the Company, engage in any Restricted Activities for
or on behalf of (including in a consulting capacity) any Restricted Business.
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 Executive 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
as a manager or executive 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).
Non Solicitation of Customers.
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 Executive 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 and had 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 protection for its interests.
I acknowledge 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.
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, without bond, to injunctive or other equitable relief in addition to
all other rights otherwise available to the Company at law or in equity.
Indemnification.
Nothing in this Agreement shall affect any rights I may have under
Article VII of the Company's by-laws in effect as of the date of this Agreement.
Non-disparagement.
I will not disparage the Company, its customers or suppliers or the
Company's directors, current or former officers, or employees
("Representatives"). The Company and its Representatives
will not disparage me. "Disparagement" means a negative oral or written
statement that can be accurately demonstrated in fact to be attributable
to (i) me or (ii) the Company or its Representatives (as applicable).
Notwithstanding the foregoing, no statement made by either party in the context
of any legal or regulatory proceeding shall be deemed to violate the foregoing
provisions.
Complete Agreement.
This Agreement and the Letter Agreement dated April 1, 2005, are the
complete understanding between me and the Company in respect of the subject
matter of this Agreement and, with the exception of any prior agreement I have
signed or made with the Company regarding trade secrets, confidential
information, or intellectual property, supersedes all prior agreements relating
to the same subject matter. This Agreement shall not affect my rights under or
the terms of any benefit plan or program in which I have participated or am
participating on the effective date of this Agreement. 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 Georgia (except to the
extent that Georgia conflicts of law rules would call for the application of the
law of another jurisdiction).
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.
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Date: April 1, 2005
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The Coca-Cola Company
/s/ Xxxxxxx XxXxxxx
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[Name of Officer] Xxxxxxx XxXxxxx
[Title] Sr. V.P. of Human Resources
Date: April 1, 2005
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