Coca-Cola Company

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IN THE MA ITER OF THE COCA-COLA COMPANY MODIFYING ORDER IN REGARD TO ALLEGED VIOLATION OF SEC. 7 OF THE CLAYTON ACT AND SEe. 5 OF THE FEDERAL TRADE COMMISSION ACT Docket 9207. Final Order, June 13, 1994--Modifying Order, May 25, 1995 This order reopens a 1994 final order that requires the respondent to obtain Commission approval before acquiring stock or interest in any company that manufactures or sells concentrate, syrup, or carbonated soft drinks in the U. This order modifies the final order in settlement of the petitions for review filed by the respondent in the U.S. Court of Appeals. ORDER REOPENING AND MODIFYING FINAL ORDER The Commission issued a Final Order in this proceeding on June 13, 1994, and an Order Reopening and Modifying Final Order on December 5, 1994. Respondent, The Coca-Cola Company, filed in the United States Court of Appeals for the District of Columbia Circuit a petition for review of the Commission s Final Order on August 26 1994, and on February 3, 1995 , a petition for review of the Final Order, as modified by the Commssion s Order of December 1994. On May 17, 1995, the Commission approved the terms of a modified final order in settlement of the petitions for review; and on May 18, 1995, the Commission and The Coca-Cola Company filed a Stipulation of Dismissal in the court of appeals pursuant to Fed. R. App. P. 42(b).

Now therefore It is hereby ordered That the aforesaid Final Order, as modified, be, and it hereby is, modified to read as follows: I. DEFINITONS It is ordered That, for purposes of this order, the following definitions shall apply:

A. Coca- Cola means The Coca-Cola Company, a corporation organized under the laws of Delaware, with its headquarters located at One Coca-Cola Plaza, N.W., Atlanta, Georgia, and its directors THE COCA-COLA COMPANY 725 724 Modifying Order offcers, agents, employees, and representatives, and its subsidiares divisions, affiiates, successors, and assigns. B. Concentrate means the base element, flavors, or essences mixed according to a formula which, when added to carbonated water and nutritive or non-nutritive sweetener, is a carbonated soft drink. C. Syrup means the concentrate and nutritive or non-nutritive sweetener which, when added to carbonated water, is a carbonated soft drink.

D. Branded concentrate or branded syrup means concentrate or syrup used to produce carbonated soft drinks that are identified with any nationally or regionally recognized label, name, or trademark and that, in general, are heavily advertised, widely available in the take-home and cold drink channels, and distributed by bottlers that provide store-door service or services to retailers in the cold drink channel. This definition does not include a label name, or trademark associated solely with a single grocery or restaurant retailer, or with a generic flavor. E. Branded concentrate soft drink" means a drink made by combining carbonated water with branded syrup or with nutritive sweetener or non-nutritive sweetener and branded concentrate. II.

It is further ordered That Coca-Cola, for a period of ten (10) years from the date this order becomes final, shall not acquire directly or indirectly, through subsidiares, partnerships or otherwise, without the prior approval of the Federal Trade Commission: A. Any rights to the Dr PepperCV or diet Dr PepperCV brand in the United States, or any brand, name, or trademark associated with the production, marketing, sale or distribution of Dr PepperCV or diet Dr PepperCV carbonated soft drinks in the United States; B. The whole or any part of the stock, share capital, equity or other interest in any concern, corporate or non-corporate, that holds owns, or otherwise controls the Dr PepperCV or diet Dr PepperCV brand, name, or trademark in the United States. Provided however, that this prior approval requirement shall not apply to any acquisition by Coca-Cola of only physical assets involved in the production, sale, or distribution of Dr PepperCV and/or Modifying Order 119 FTC. diet Dr PepperCV syrups, concentrates, or carbonated soft drinks, or from acquiring a bottler of Dr PepperCV and/or diet Dr PepperCV carbonated soft drinks, so long as the bottler is engaged in the manufacture and sale of Dr PepperCV or diet Dr PepperCV concentrates or syrups solely as a holder of a Dr PepperCV or diet Dr PepperCV trademark, license, or franchise agreement and is not the owner of the Dr PepperCV or diet Dr PepperCV brand, name, or trademark. It is further ordered That Coca-Cola, for a period of ten (10) years from the date this order becomes final, shall not acquire directly or indirectly, through subsidiares, partnerships or otherwise without providing advance written notification to the Federal Trade Commission:

A. The whole or any part of the stock, share capital, equity or other interest in any concern, corporate or non-corporate: 1. Engaged in the manufacture and sale in the United States of branded concentrate or branded syrup; or 2. Engaged in the franchising or licensing of any brand, name, or trademark used in the United States in connection with the production, marketing, or sale of branded concentrate, branded syrup, or branded carbonated soft drinks.

B. Any brand, name, or trademark associated with the production sale, or distribution of branded concentrate, branded syrup, or branded carbonated soft drinks in the United States. Provided however, that this advance notification requirement shall not apply to any acquisition by Coca-Cola of only physical assets involved in the production, sale, or distribution of concentrate syrup, or carbonated soft drinks, or from acquiring a bottler of carbonated soft drinks, so long as the bottler is not engaged in the manufacture and sale of branded concentrate or branded syrup, or in the franchising or licensing of any brand, name, or trademark of any branded carbonated soft drinks or is engaged in the manufacture and sale of branded concentrate or branded syrup solely in its capacity as THE COCA-COLA COMPANY 727 724 Modifying Order a licensee, bottler, or franchisee under carbonated soft drink trademark rights issued by another firm.

Advance notification of any transaction covered by this paragraph II shall be provided to the Federal Trade Commission when Coca- Cola s Board of Directors, or any individual or entity that is authorized to act on Coca-Cola s behalf in such acquisitions authorizes issuance of a letter of intent or enters into an agreement to make an acquisition covered by this paragraph II, whichever is earlier.

The notification required of Coca-Cola by this paragraph shall be the Notification and Report Foml set forth in the Appendix to Part 803 of Title 16 of the Code of Federal Regulations, as amended, and shall be prepared and transmitted in accordance with the requirements of that par, except that no filing fee will be required for any such notification, notification need not be given to the United States Department of Justice and notification is required only of Coca-Cola and not of any other party to the transaction. Coca-Cola shall comply with reasonable requests by the Commission staff for additional information within fifteen (15) days of service of such requests.

The notification required of Coca-Cola by this paragraph II shall not require additional notification by Coca-Cola to the Federal Trade Commission of any acquisition for which notification is required to be made, and has been made, pursuant to Section 7 A of the Clayton Act, 15 U. c. 18a, or for which prior approval by the Federal Trade Commission is required, and has been requested, pursuant to paragraph II of this order.

Provided further, that the requirements of this paragraph II shall not apply to any acquisition by Coca-Cola of any company or firm where such company or firm has sales of less than ten million (10 000,000) 192-oz. case-equivalents of carbonated soft drinks in each of the three years preceding such acquisition. IV.

It is further ordered That one (1) year from the date this order becomes final, and annually on the anniversary of the date this order becomes final until the prior approval and prior notification requirements of paragraphs II and 1I expire, and at other times as the Commission may reasonably require, Coca-Cola shall file a verified Modifying Order 119 FTC. written report with the Federal Trade Commission setting forth in detail the manner and fonn in which it has complied and is complying with this order.

It is further ordered That, for the purposes of determining or securing compliance with this order, and subject to any legally recognized privilege, upon written request and on reasonable notice to Coca-Cola made to its principal offce, Coca-Cola shall pennit any duly authorized representatives of the Federal Trade Commission: A. During office hours and in the presence of counsel, to have access to, inspect and copy all books, ledgers, accounts correspondence, memoranda, and other records and documents in the possession or under the control of Coca-Cola relating to any matters contained in this order; and B. Upon five days' notice to Coca-Cola and without restraint or interference from Coca-Cola, to interview officers or employees of Coca-Cola, who may have counsel present, regarding such matters. VI.

It is further ordered That Coca-Cola shall notify the Federal Trade Commission at least thirty (30) days prior to any proposed change in the corporation such as dissolution, assignment or sale resulting in the emergence of a successor corporation, or any other change that may affect compliance obligations arising out of this order.

Commissioner Azcuenaga and Commissioner Starek recused. GA TEW A Y EDUCATIONAL PRODUCTS, LTD., ET AL. 729 729 Complaint