Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of this 11th day of March, 0000,
X X X X X X X:
COTT CORPORATION, a corporation incorporated under the
laws of Canada
(hereinafter referred to as the "Corporation")
OF THE FIRST PART
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XXXX X. XXXXXXXX, of the City of Tampa, in the State of
Florida
(hereinafter referred to as the "Executive")
OF THE SECOND PART
WHEREAS the Executive commenced employment with the Corporation in January
2002 as Executive Vice-President of the Corporation and President of the
Corporation's U.S. division;
AND WHEREAS the Executive became the President and Chief Operating Officer
of the Corporation in July 2003;
AND WHEREAS the Corporation has determined to appoint the Executive as
Chief Executive Officer of the Corporation effective as of September 1, 2004;
AND WHEREAS the Corporation and the Executive have agreed to enter into
this Employment Agreement to formalize in writing the terms and conditions
reached between them governing the Executive's employment;
NOW THEREFORE in consideration of the covenants and agreements herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties, the parties hereto
agree as follows:
ARTICLE 1 - COMMENCEMENT AND TERM
1.1 TERM. Subject to earlier termination in accordance with this Section 1.1
or Article 5 hereof, the term of the Executive's employment under this Agreement
commences on September 1, 2004 and shall continue for an indefinite term (the
"Term") until one party gives no less than thirty (30) days notice to the other
that he or it wishes to terminate the Executive's employment
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(a "Notice of Termination"). In the event that a Notice of Termination is
delivered, the employment of the Executive shall end at the date specified in
the Notice of Termination.
1.2 EFFECT. Notwithstanding the date on which this agreement is entered into,
the terms of this Agreement shall not take effect until September 1, 2004,
except that the (i) provisions of Section 3.2(a) shall have effect from January
1, 2004, and (ii) the provisions of Section 1.1 and Article 5 (and those
Sections necessary to the enforcement thereof) shall have immediate effect,
including any references therein to the retiree medical benefits provided under
Section 3.3(e). Notwithstanding the foregoing, if, prior to or on September 1,
2004, the Corporation determines to appoint another person to the office of
Chief Executive Officer of the Corporation or fails to appoint the Executive to
the office of Chief Executive Officer of the Corporation, the Corporation shall
be deemed to have terminated the Executive for a reason other than for Just
Cause, Disability, or death of the Executive for the purposes of Section 5.2
hereof and the Executive will be entitled to receive the payments and benefits
contemplated by Section 5.2, provided that the Corporation may re-appoint its
current Chief Executive Officer to serve as Chief Executive Officer of the
Corporation until September 1, 2004.
ARTICLE 2 - EMPLOYMENT
2.1 POSITION. Subject to the terms and conditions hereof, the Executive shall
be employed by the Corporation in the office of President and Chief Executive
Officer of the Corporation effective as of September 1, 2004 and shall perform
such duties and exercise such powers and responsibilities of such office as are
set forth in the Statement of Responsibilities - Chief Executive Officer
attached hereto which has been approved by the board of directors, as are
contained in the by-laws of the Corporation and as are otherwise prescribed or
specified from time to time by the board of directors of the Corporation. The
Corporation agrees to submit the Executive's name for election to the board of
directors of the Corporation at each annual meeting of the Corporation
throughout the Term.
2.2 RESPONSIBILITIES. The Executive agrees to devote substantially all of his
business time and attention to the business and affairs of the Corporation, to
discharge the responsibilities assigned to the Executive, and to use the
Executive's best efforts to perform faithfully and efficiently such
responsibilities. The Executive shall be entitled to serve as a director on
external boards of directors only upon the prior written approval of the
Corporation. Anything herein to the contrary notwithstanding, nothing shall
preclude the Executive from (i) serving on the boards of directors of a
reasonable number of trade associations and/or charitable organizations, (ii)
engaging in charitable activities and community affairs, and (iii) managing his
personal investments and affairs, provided that any or all of the foregoing
activities do not materially interfere with the proper performance of his duties
and responsibilities as the Corporation's President and Chief Executive Officer.
ARTICLE 3 - REMUNERATION
3.1 SALARY. During the Term, the Corporation shall pay the Executive a base
salary (the "Base Salary") to be fixed by the board of directors of the
Corporation from time to time, payable monthly in arrears. The Base Salary shall
not be less than $550,000 per annum and shall be reviewed no less frequently
than annually for increase in the discretion of the board of directors.
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3.2 INCENTIVES.
(a) ANNUAL BONUSES. The Executive shall be entitled to an annual
performance-based bonus (the "Bonus") of an amount equal to up to one hundred
percent (100%) of a bonus target of $600,000, such Bonus to be based on the
achievement of specific objectives to be established and mutually agreed upon on
an annual basis. Bonuses shall be earned and payable only upon completion of the
relevant fiscal year and provided the Executive shall continue to be actively
and continuously employed for the full duration thereof, unless otherwise
provided in Article 5.
(b) EXECUTIVE INCENTIVE PLAN. The Executive shall be entitled to
participate each year in the Corporation's Executive Incentive Share
Compensation Plan under terms substantially the same as those applicable under
the Executive Share Compensation Plan in effect on January 4, 2004 or any
successor plan thereto (all such plans referred to in the aggregate as the
"EISCP") to the extent that the Executive's performance exceeds 100% of the
annual performance objectives established for him.
(c) LONG-TERM INCENTIVES. The Executive shall be entitled to participate
in the long-term incentive plans and programs of the Corporation as made
available from time to time to the executive officers of the Corporation.
3.3 BENEFITS AND PERQUISITES.
(a) The Executive shall be entitled to participate in all of the
Corporation's group insurance benefit plans, currently including basic medical,
extended health, dental, long term disability, travel and accident insurance.
All plans are governed by their terms.
(b) The Corporation shall provide the Executive with supplemental
disability benefits which would pay the Executive, in the event of termination
of his employment for Disability (as defined in Section 5.1(b)), an amount equal
to the sum of 60% of his Base Salary less the amount of any disability benefits
provided under the Corporation's long-term disability plans. In the event that
the Executive is totally or partially disabled and his employment is not
terminated for Disability, the Corporation shall ensure that he continue to
receive all remuneration provided for under this Article 3.
(c) The Executive shall have the use of a leased automobile or an
automobile allowance, provided the cost to the Corporation shall not exceed a
monthly amount to be mutually agreed upon on an annual basis.
(d) The Executive is not entitled to any other benefit or perquisite
other than as specifically set out in this Agreement or agreed to in writing by
the Corporation.
(e) If the Executive's employment is terminated for any cause (other
than for Just Cause or voluntary resignation other than for Good Reason prior to
the Executive's 55th birthday), in addition to the other benefits the Executive
shall receive upon such a termination, commencing on the later of the date of
such termination or the date the Executive attains 55 years of age, the
Executive and his spouse shall, as long as either of them shall live, and the
Executive's daughter shall, until her 21st birthday, be entitled to health
insurance benefits (medical, dental, and vision care, including prescriptions)
("Health Insurance Benefits") equal to
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the greater of (i) all Health Insurance Benefits provided from time to time to
the Chief Executive Officer of the Corporation or any successor corporation or,
in the absence of such Chief Executive Officer, the highest paid officer of the
Corporation or any successor corporation and (ii) the Health Insurance Benefits
provided to the Executive immediately prior to the termination of his
employment. Health Insurance Benefits shall include the benefits provided to the
Executive as well as terms relating to the provision of such benefits. In the
event the Corporation or successor corporation does not provide such Health
Insurance Benefits, the Corporation shall reimburse the Executive for any
expenses the Executive incurs to replace such Health Insurance Benefits. The
benefits provided by this paragraph shall, as to any one or more of the
Executive, his spouse, and his daughter (each, a "Beneficiary"), be suspended
during any period such Beneficiary is eligible for substantially comparable
benefits in connection with alternate employment.
The Executive understands and acknowledges that the perquisites
contemplated by this Section 3.3 shall be recorded as taxable benefits within
the meaning of the Income Tax Act (Canada) and may have comparable treatment
under the United States Internal Revenue Code.
3.4 VACATION. The Executive shall be entitled to five weeks' vacation with pay
annually. Such vacation shall be taken at a time or times acceptable to the
Corporation having regard to its operations. Accumulated vacation may be not
carried except with the written approval of the Corporation.
3.5 EXPENSES.
(a) Consistent with its corporate policies as established from
time-to-time, the Corporation agrees to reimburse the Executive for all expenses
reasonably incurred in connection with the performance of his duties upon being
provided with proper vouchers or receipts.
(b) The Corporation agrees to reimburse to the Executive for all
reasonable legal and accounting expenses incurred in the negotiation and
documentation of this Agreement in an amount up to $10,000.
(c) The Executive shall be under no obligation to relocate his personal
residence to the Toronto area. The Corporation shall provide and maintain for
the Executive suitable rental accommodations in the Toronto area mutually
acceptable to the Corporation and the Executive, acting reasonably, and pay any
costs associated with the Executive's travel between Toronto and Tampa, Florida.
In addition, the Executive's spouse shall be entitled to make a reasonable
number of trips per year from her residence in Tampa to Toronto and the
Corporation shall reimburse the Executive for the incurred cost of such travel
upon presentation of proper receipts.
3.6 SHARE OPTIONS.
(a) The Corporation shall, at the next grant of options, but no later
than September 1, 2004, grant the Executive an irrevocable option (the "Option")
to purchase 400,000 common shares in the capital of the Corporation (the
"Optioned Shares") at a price equal to the closing share price on The Toronto
Stock Exchange on the date prior to the date of the grant of such Option. The
Option shall become exercisable on a cumulative basis in respect of 30% of the
total Optioned Shares commencing on the first anniversary of the date of grant,
30% of the total Optioned Shares commencing on the second anniversary of the
date of grant, and 40% of the
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total Optioned unvested Option Shares commencing on the third anniversary of the
date of grant. The Option shall expire in respect of Optioned Shares not
theretofore acquired thereunder or in respect of which rights shall not
otherwise have terminated on the seventh annual anniversary of the date of
grant. The Executive acknowledges and agrees that no further options shall be
granted to him until after January 2006.
(b) The Executive agrees to acquire by no later than the third
anniversary of the date of his appointment as Chief Executive Officer, and to
thereafter maintain for the duration of his employment with the Corporation, not
less than that number of common shares in the Corporation as is equal in value
to his Base Salary multiplied by five and shall provide evidence of the shares
held by him as may be required by the Corporation from time to time. Shares
acquired on behalf of the Executive pursuant to the EISCP, whether or not vested
(Executive's "EISCP Shares"), shall be counted toward this requirement unless
and until the Executive shall have disposed of such shares.
(c) The Executive will comply with all applicable securities laws and
the Corporation's Xxxxxxx Xxxxxxx Policy and Insider Reporting Procedures
(copies of which have been provided to the Executive) in respect of the Optioned
Shares issued to the Executive and other shares of the Corporation acquired by
the Executive.
(d) All of the Executive's rights in respect of the Option in the
Optioned Shares shall be governed by the terms and conditions set out in the
Restated 1986 Common Share Option Plan (the "Option Plan") of the Corporation as
amended, as it may be amended from time to time, a copy of which has been
provided to the Executive, the provisions of which are incorporated into this
Agreement by reference.
ARTICLE 4 - COVENANTS OF THE PARTIES
4.1 CONFIDENTIALITY.
(a) The Executive acknowledges that in the course of carrying out,
performing and fulfilling his obligations to the Corporation hereunder, the
Executive will have access to and will be entrusted with information that would
reasonably be considered confidential to the Corporation or its Affiliates, the
disclosure of which to competitors of the Corporation or its Affiliates or to
the general public, will be highly detrimental to the best interests of the
Corporation or its Affiliates. Such information includes, without limitation,
trade secrets, know-how, marketing plans and techniques, cost figures, client
lists, software, and information relating to employees, suppliers, customers and
persons in contractual relationship with the Corporation. Except as may be
required in the course of carrying our his duties hereunder, the Executive
covenants and agrees that he will not disclose, for the duration of this
Agreement or at any time thereafter, any such information to any person, other
than to the directors, officers, employees or agents of the Corporation that
have a need to know such information, nor shall the Executive use or exploit,
directly or indirectly, such information for any purpose other than for the
purposes of the Corporation (subject to his rights and obligations under Section
3.6), nor will he disclose nor use for any purpose, other than for those of the
Corporation or its Affiliates or any other information which he may acquire
during his employment with respect to the business and affairs of the
Corporation or its Affiliates. Notwithstanding all of the foregoing, the
Executive shall be entitled to disclose such information if required pursuant to
a subpoena or order issued
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by a court, arbitrator or governmental body, agency or official, provided that
the Executive shall first have:
(i) notified the Corporation;
(ii) consulted with the Corporation on the advisability of taking
steps to resist such requirements;
(iii) if the disclosure is required or deemed advisable, cooperate
with the Corporation in an attempt to obtain an order or other
assurance that such information will be accorded confidential
treatment.
(b) For the purposes of this Agreement, "Affiliate" shall mean, with
respect to any person or entity (herein the "first party"), any other person or
entity that directs or indirectly controls, or is controlled by, or is under
common control with, such first party. The term "control" as used herein
(including the terms "controlled by" and "under common control with") means the
possession, directly or indirectly, of the power to: (i) vote 50% or more of the
outstanding voting securities of such person or entity, or (ii) otherwise direct
or significantly influence the management or policies of such person or entity
by contract or otherwise.
4.2 INVENTIONS. The Executive acknowledges and agrees that all right, title
and interest in and to any information, trade secrets, advances, discoveries,
improvements, research materials and data bases made or conceived by the
Executive prior to or during his employment relating to the business or affairs
of the Corporation, shall belong to the Corporation. In connection with the
foregoing, the Executive agrees to execute any assignments and/or
acknowledgements as may be requested by the board of directors from time to
time.
4.3 CORPORATE OPPORTUNITIES. Any business opportunities related to the
business of the Corporation which become known to the Executive during his
employment hereunder must be fully disclosed and made available to the
Corporation by the Executive, and the Executive agrees not to take or attempt to
take any action if the result would be to divert from the Corporation any
opportunity which is within the scope of its business.
4.4 RESTRICTIVE COVENANTS.
(a) The Executive will not at any time, without the prior written
consent of the Corporation, during the Term of this Agreement or for a period of
24 months after the termination of the Executive's employment (regardless of the
reason for such termination), either individually or in partnership, jointly or
in conjunction with any person or persons, firm, association, syndicate, company
or corporation, whether as agent, shareholder, employee, consultant, or in any
manner whatsoever, directly or indirectly:
(i) anywhere in the Territory, engage in, carry on or otherwise
have any interest in, advise, lend money to, guarantee the
debts or obligations of, permit the Executive's name to be
used in connection with any business which is competitive to
the Business or which provides the same or substantially
similar services as the Business;
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(ii) for the purpose of competing with any business of the
Corporation, solicit, interfere with, accept any business from
or render any services to anyone who is a client or a
prospective client of the Corporation or any Affiliate at the
time the Executive ceased to be employed by the Corporation or
who was a client during the 12 months immediately preceding
such time;
(iii) solicit or offer employment to any person employed or engaged
by the Corporation or any Affiliate at the time the Executive
ceased to be employed by the Corporation or who was an
employee or during the 12 month period immediately preceding
such time.
(b) For the purposes of the Agreement:
(i) "Territory" shall mean the countries in which the Corporation
and its subsidiaries conduct the Business;
(ii) "Business" shall mean the business of manufacturing, selling
and distributing non-alcoholic beverages.
(c) Nothing in this Agreement shall prohibit or restrict the Executive
from holding or becoming beneficially interested in up to one (1%) percent of
any class of securities in any corporation provided that such class of
securities are listed on a recognized stock exchange in Canada or the United
States.
4.5 GENERAL PROVISIONS.
(a) The Executive acknowledges and agrees that in the event of a breach
of the covenants, provisions and restrictions in this Article 4, the
Corporation's remedy in the form of monetary damages will be inadequate and that
the Corporation shall be and is hereby authorized and entitled, in addition to
all other rights and remedies available to it, to apply for and obtain from a
court of competent jurisdiction interim and permanent injunctive relief and an
accounting of all profits and benefits arising out of such breach.
(b) The parties acknowledge that the restrictions in this Article 4 are
reasonable in all of the circumstances and the Executive acknowledges that the
operation of restrictions contained in this Article 4 may seriously constrain
his freedom to seek other remunerative employment. If any of the restrictions
are determined to be unenforceable as going beyond what is reasonable in the
circumstances for the protection of the interests of the Corporation but would
be valid, for example, if the scope of their time periods or geographic areas
were limited, the parties consent to the court making such modifications as may
be required and such restrictions shall apply with such modifications as may be
necessary to make them valid and effective.
(c) Each and every provision of these Sections 4.1, 4.2, 4.3, 4.4 and
4.5 hereunder shall survive the termination of this Agreement or the Executive's
employment hereunder (regardless of the reason or such termination).
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ARTICLE 5 - TERMINATION OF EMPLOYMENT
5.1 TERMINATION BY THE CORPORATION FOR JUST CAUSE, DISABILITY OR DEATH OR
NOTICE OF TERMINATION.
(a) The Corporation may terminate this Agreement and the Executive's
employment hereunder without payment of any compensation either by way of
anticipated earnings or damages of any kind at any time for Just Cause,
Disability or death of the Executive, or by delivery of a Notice of Termination
by the Executive.
(b) "Just Cause" shall mean:
(i) gross misconduct or dishonesty in the discharge of his duties
hereunder;
(ii) theft, misappropriation or fraud against the Corporation or
its property;
(iii) alcoholism or addiction to a substance which materially
impairs the Executive's ability to perform his duties
hereunder;
(iv) wilful breach of fiduciary duties;
(v) gross negligence in the performance of the Executive's duties;
or
(vi) the Executive commits a wilful and material breach of this
Agreement,
unless, in the case of an act or omission described in clause (iv) or (v) above,
the Executive remedies same, after notice from the Corporation, within a period
which is reasonable in the circumstances.
For the purposes of his Agreement, "Disability" shall have occurred
if the Executive has been unable due to illness, disease, or mental or physical
disability (in the opinion of a qualified medical practitioner who is
satisfactory to the Executive and the Corporation acting reasonably), to fulfill
his obligations hereunder either for any consecutive six (6) month period or for
any period of 9 months (whether or not consecutive) in any consecutive 12 month
period, or the Executive has been declared by a court of competent jurisdiction
to be mentally incompetent or incapable of managing his affairs.
If the Executive and the Corporation cannot agree on a qualified
medical practitioner, each party shall select a medical practitioner, and the
two practitioners shall select a third who shall be the approved medical
practitioner for this purpose.
In the event of a termination of the Executive's employment on
account of death or Disability, the Executive (if living) and his spouse and
daughter shall be entitled to the retiree health benefit described in Section
3.3(e) above.
5.2 TERMINATION BY THE EMPLOYER WITHOUT CAUSE.
(a) If the Executive's employment is terminated by the Corporation,
including delivery by the Corporation of a Notice of Termination, for any reason
other than for Just Cause,
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Disability, death of the Executive, then the Corporation shall pay forthwith to
the Executive or as he may direct, a lump sum amount equal to:
(i) 24 months' of (A) Base Salary, (B) Bonus (based, for any
termination of employment prior to January 1, 2006, on the
target Bonus as described in Section 3.2(a), and for any
termination thereafter on the average of the Bonus paid or
payable to the Executive in respect of the most recent two
completed fiscal years),
(ii) a pro rated Bonus for the year in which Executive's
termination occurs (based on the average of the Bonuses paid
or payable to the Executive in respect of the most recent two
completed fiscal years); plus
(iii) the amount contributed to the EISCP on the Executive's behalf
for the fiscal year immediately preceeding the Executive's
termination, such contributions for any termination of
employment prior to January 1, 2006, to be deemed to be
$600,000.
(b) In the event of the termination of the Executive's employment under
this Section 5.2, the Corporation shall, to the extent it may do so legally and
in compliance with the Corporation's benefit plans in existence from time to
time, continue all group insurance benefits at a level equivalent to those
provided to the Executive immediately prior to the termination for a period
until the date which is 24 months following the date of termination, provided
that, (a) the benefits contemplated by this sub-paragraph shall terminate on the
date the Executive obtains alternate employment providing comparable benefits;
and (b) if the Corporation cannot continue any particular group insurance
benefit, the Corporation shall reimburse the Executive for any expenses incurred
by the Executive to replace such group insurance benefit.
(c) In the event of the termination of the Executive's employment under
this Section 5.2, the Corporation shall provide Health Insurance Benefits to the
Executive, his spouse, and his daughter in accordance with Section 3.3(e).
5.3 TERMINATION BY THE EXECUTIVE FOR GOOD REASON.
(a) The Executive may terminate his employment at any time for Good
Reason upon the occurrence, without the express written consent of the
Executive, of any of the following:
(i) a reduction in the Executive's then current Base Salary or
target award opportunity under the Corporation's annual Bonus
plan;
(ii) the termination or material reduction of any employee benefit
or perquisite enjoyed by him (other than as part of an
across-the-board reduction applicable to all executive
officers of the Corporation);
(iii) the Executive is not elected (or appointed) or reelected (or
reappointed) to any of the executive officer positions
described in Section 2.1 or is removed from any such position;
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(iv) a material diminution in the Executive's duties or the
assignment to the Executive of duties which are materially
inconsistent with his duties or which materially impair the
Executive's ability to function as the President and Chief
Executive Officer of the Corporation;
(v) the failure to continue the Executive's participation in any
incentive compensation plan (including, for greater certainty
the EISCP) unless a plan providing a substantially similar
opportunity is substituted;
(vi) the failure of the Corporation to obtain the assumption in
writing of its obligation to perform this Agreement by any
successor to all or substantially all of the business or
assets of the Corporation on or before the date of such
succession, unless the Executive shall have personally
received the opinion of counsel to the Corporation that such
transaction does not have an adverse legal effect on the
rights of the Executive hereunder;
(vii) any relocation of the Executive's principal place of
employment that would require the Executive to relocate his
principal place of residence to any location more than thirty
miles from Tampa, Florida, unless the Executive consents to
such relocation; or
(viii) as provided in Section 5.4(a) below;
which, in any of the foregoing events, has not been remedied or cured by the
Corporation within a reasonable period after notice from the Executive.
(b) In the event the Executive terminates this Agreement for Good
Reason, he shall be entitled to the same payments and benefits provided in
Section 5.2 above.
(c) Notwithstanding any other provision in this Section 5.3, prior to
the date the Executive becomes Chief Executive Officer, clause (iii) of Section
5.3(a) shall not apply, and clause (iv) of Section 5.3(a) shall be read to refer
to the functions of Chief Operating Officer and President. This Section 5.3(c)
shall not limit the application of Section 1.2 above.
5.4 TERMINATION UPON A CHANGE OF CONTROL.
(a) If, following a Change in Control, the Executive's employment is
terminated without Just Cause or the Executive terminates his employment for
Good Reason, the Executive shall be entitled to the payments and benefits
provided in this Section 5.4. Also, immediately following a Change in Control,
all amounts, entitlements or benefits in which the Executive is not vested shall
become fully vested. Following a Change of Control the Executive may terminate
his employment at any time for Good Reason by providing written notice to the
Corporation within six months of the occurrence of such Change of Control, in
which case the effective date of such termination and the termination of the
Executive's employment shall be 30 days from the date of such written notice.
(b) For the purposes of this Agreement, a "Change of Control" shall
mean: (i) the occurrence, at any time during the Term of any person or group of
persons acting jointly or in
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concert acquiring more than 50% of the outstanding voting shares in the
Corporation, whether by way of takeover bid, merger, amalgamation or otherwise;
(ii) a sale by the Corporation of all or substantially all of the Corporation's
undertaking and assets; or (iii) the voluntary liquidation, dissolution or
winding-up of the Corporation, in connection with which a distribution is made
to the holders of the Corporation's common shares.
(c) In the event of termination of the Executive's employment pursuant
to this Section 5.4, then the following provisions shall apply:
(i) The Corporation shall pay forthwith to the Executive or as he
may direct, a lump sum amount equal to 36 months of (A) Base
Salary, (B) Bonus (based, for any termination of employment
prior to January 1, 2006, on the target Bonus as described in
Section 3.2(a), and for any termination thereafter on the
average of the Bonuses paid or payable to the Executive in
respect of the most recent two completed fiscal years), and
(C) past contributions to the EISCP on the Executive's behalf,
such contributions to be calculated, for any termination of
employment prior to January 1, 2006, as $600,000 per year and
for any termination thereafter as the average contributions to
the EISCP on the Executive's behalf for the most recent two
completed fiscal years;
(ii) The Corporation shall continue, to the extent it may do so
legally and in compliance with the Corporation's benefit plans
in existence from time to time, all group and insurance
benefits at a level equivalent to those provided to the
Executive immediately prior to the termination for a period of
36 months following the date of termination, provided that, if
the Corporation cannot continue any particular group insurance
benefit, the Corporation shall reimburse the Executive for any
expenses incurred by the Executive to replace such group
insurance benefit.
(iii) The Corporation shall provide Health Insurance Benefits to the
Executive, his spouse, and his daughter in accordance with
Section 3.3(e).
(iv) In the event that any payment or other amount (a "Payment) is
determined to constitute a parachute payment, as such term is
defined in Section 280G(b)(2) of the United States Internal
Revenue Code of 1986 as amended (a "Parachute Payment"), the
Corporation shall pay to the Executive, prior to the time any
excise tax imposed by Section 4999 of the Internal Code
("Excise Tax") is payable with respect to the Payment, an
additional amount which, after the imposition of all income
and excise taxes thereon, is equal to the aggregate of all
Excise Taxes on all Payments such that the Executive is in the
same position as if no Excise Taxes had been imposed with
respect to any Payments. The determination of whether the
Payment constitutes a Parachute Payment and, if so, the amount
to be paid to the Executive and the time of payment pursuant
to this 5.4(c)(iv) shall be made by an independent auditor
(the "Auditor") jointly selected by the Corporation and the
Executive and paid by the Corporation. The Auditor shall be a
nationally recognized United States
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public accounting firm which has not, during the two years
preceding the date of its selection, acted in any way on
behalf of the Corporation or any Affiliate thereof. If the
Executive and the Corporation cannot agree on the firm to
serve as the Auditor, then the Executive and the Corporation
shall each select one accounting firm and those two firms
shall jointly select the accounting firm to serve as the
Auditor. Each of the Corporation and the Executive agree that
if the Auditor determines that the Payments constitute, or are
likely to constitute, a Parachute Payment, each of the
Corporation and the Executive will in good faith consider any
reasonable recommendation of the Auditor, to structure the
Payments such that the Payments do not constitute a Parachute
Payment.
(v) Such termination shall otherwise be treated as, or deemed to
be, a "retirement" under Section 16(iii) of the Option Plan
with respect to all Options, and such termination shall be
considered or deemed to be a "Normal Retirement" for purposes
of the EISCP.
5.5 VOLUNTARY RESIGNATION; RETIREMENT. In the event the Executive wishes to
resign his employment voluntarily, he shall provide at least one hundred and
twenty (120) days' notice in writing to the Corporation. The Corporation may
waive such notice in whole or in part by paying the Executive's Base Salary and
continuing his group benefits and perquisites to the effective date of
resignation.
5.6 SHARE OPTIONS; INCENTIVE SHARES.
(a) Upon any termination of the Executive's employment under this
Agreement (other than for Just Cause) and provided that the Executive is at
least 55 years of age, such termination shall otherwise be treated as, or deemed
to be, a "retirement" under Section 16(iii) of the Option Plan with respect to
all Options.
(b) Any termination of the Executive's employment under this Agreement
(other than for Just Cause) shall, provided that the Executive is at least 55
years of age, be considered or deemed to be a "Normal Retirement" for purposes
of the EISCP.
5.7 PAYMENT TO DATE OF TERMINATION. Regardless of the reasons for the
termination, the Corporation shall make payment to the Executive to the
effective date of termination for all Base Salary, any accrued but unpaid
vacation entitlements, any earned but unpaid Bonus and, other than in the event
of a termination for Just Cause, any other amounts earned, accrued (including
Bonus and EISCP entitlements for the year in which the termination occurs) or
owing to the Executive but not yet paid as well as other or additional benefits
in accordance with applicable plans or programs of the Corporation.
5.8 RETURN OF PROPERTY. Upon any termination of his employment, the Executive
shall forthwith deliver or cause to be delivered to the Corporation all books,
documents, computer disks, and diskettes and other electronic data, effects,
money, securities, or other property belonging to the Corporation or for which
the Corporation is liable to others, which are in the possession, charge,
control or custody of the Executive.
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5.9 RELEASE. The Executive acknowledges and agrees that the payments pursuant
to this Article shall be in full satisfaction of all terms of termination of his
employment, including termination pay and severance pay pursuant to the
Employment Standards Act (Ontario) as amended from time to time. Except as
otherwise provided in this Article, the Executive shall not be entitled to any
further termination payments, damages or compensation whatsoever. As condition
precedent to any payment pursuant to this Article, the Executive agrees to
deliver to the Corporation prior to any such payment, a full and final release
from all actions or claims in connection therewith in favour of the Corporation,
its affiliates, subsidiaries, directors, officers, employees and agents, in the
form satisfactory to the Corporation, acting reasonably.
5.10 NO MITIGATION; SET-OFF; NATURE OF PAYMENTS. In the event of any
termination of employment under this Article 5, the Executive shall be under no
obligation to seek other employment and there shall be no offset against amounts
due to the Executive under this Agreement on account of any remuneration
attributable to any subsequent employment that he may obtain except as
specifically provided in this Agreement; provided, however, the Executive
authorizes the Corporation to deduct from any payment due to him pursuant to
this Agreement, any amounts owed by him to the Corporation by reason of
purchases, advances, loans, or other similar contractual obligations to pay
money. This provision shall be applied so as not to conflict with any applicable
legislation. Any amounts due under this Article 5 are in the nature of severance
payments considered to be reasonable by the Corporation and are not in the
nature of a penalty.
5.11 PROVINCIAL LEGISLATION. All payments made and notice given pursuant to
this Article 5 shall include notice of termination and severance pay as defined
in the Employment Standards Act (Ontario) as it may from time to time be
amended, the provisions of which are deemed to be incorporated into this
Agreement and shall prevail to the extent greater.
ARTICLE 6 - DIRECTORS AND OFFICERS
6.1 RESIGNATION. If the Executive is a director or officer at the relevant
time, the Executive agrees that after termination of his employment with the
Corporation he will tender his resignation from any position he may hold as an
officer or director of the Corporation or any of its affiliated or related
companies.
6.2 INSURANCE. The Corporation shall maintain such directors' and officers'
liability insurance for the benefit of the Executive in accordance with
corporate policies and as generally provided to the directors of the
Corporation.
6.3 INDEMNIFICATION. The Corporation agrees that, if the Executive is made a
party, or is threatened to be made a party, to any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "Proceeding"), by
reason of the fact that he is or was a director, officer or employee of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, member, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether or not the basis of such Proceeding
is the Executive's alleged action in an official capacity while serving as a
director, officer, member employee or agent, the Executive shall be indemnified
and held harmless by the Corporation to the fullest extent legally permitted or
authorized by the Corporation's certificate of incorporation or bylaws or
resolutions of the Corporation's Board of Directors or, if greater, by the laws
of the Province of Ontario, and the federal Laws of Canada
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applicable to the Corporation, against all cost, expense, liability, and loss
(including, without limitation, attorney's fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by the Executive in connection therewith, and such
indemnification shall continue as to the Executive even if he has ceased to be a
director, member, employee or agent of the Corporation or other entity and shall
inure to the benefit of the Executive's heirs, executors and administrators. The
Corporation shall advance to the Executive all reasonable costs and expenses
incurred by him in connection with a Proceeding within 20 days after receipt by
the Corporation of a written request for such advance. Such request shall
include an undertaking by the Executive to repay the amount of such advance if
it shall ultimately be determined that he is not entitled to be indemnified
against such cost and expenses.
ARTICLE 7 - ARBITRATION
7.1 All matters in difference between the parties in relation to this
Agreement, shall be referred to the arbitration of a single arbitrator, if the
parties agree upon one, otherwise to three arbitrators, one to be appointed by
the Corporation and one to be appointed by the Executive and a third to be
chosen by the first two arbitrators named before they enter upon the business of
arbitration. The arbitration shall be conducted in accordance with the
Arbitrations Act (Ontario) as it may from time to time be amended. The award and
determination of the arbitrator or arbitrators or any of two of three
arbitrators shall be binding upon the parties and their respective heirs,
executors, administrators and assigns.
ARTICLE 8 - CONTRACT PROVISIONS
8.1 HEADINGS. The headings of the Articles and paragraphs herein are inserted
for convenience of reference only and shall not affect the meaning or
construction hereof.
8.2 INDEPENDENT ADVICE. The Corporation and the Executive acknowledge and
agree that they have each obtained independent legal advice in connection with
this Agreement and they further acknowledge and agree that they have read,
understand and agree with all of the terms hereof and that they are executing
this Agreement voluntarily and in good faith.
8.3 GENDER. Words denoting any gender include both genders.
8.4 GOVERNING LAW. This Agreement shall be construed and interpreted in
accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein. Each of the parties hereby irrevocably attorns to the
jurisdiction of the court of the Province of Ontario with respect to any matters
arising out of this Agreement.
8.5 ENTIRE AGREEMENT. This Agreement, together with the plans and documents
referred to herein, constitutes and expresses the whole agreement of the parties
hereto with reference to any of the matters or things herein provided for or
herein before discussed or mentioned with reference to such employments for the
Executive and supersedes and replaces all prior agreements between the parties
hereto in respect of the matters or things herein provided for, including,
effective September 1, 2004, the employment agreement between the Executive and
the Corporation dated December 21, 2001, as amended. All promises,
representation, collateral agreements and undertakings not expressly
incorporated in this Agreement are hereby superseded by this Agreement.
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8.6 SEVERABILITY. If any provision contained herein is determined to be void
or unenforceable in whole or in part, it shall not be deemed to affect or impair
the validity of any other provision herein and each such provision is deemed to
be separate and distinct.
8.7 NOTICE. Any notice required or permitted to be given under this Agreement
shall be in writing and shall be properly given if personally delivered,
delivered by facsimile transmission (with confirmation of receipt) or mailed by
prepaid registered mail addressed as follows:
(a) in the case of the Corporation:
Cott Corporation
000 Xxxxx'x Xxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Facsimile:(000) 000-0000
Attention: Chairman
-and-
Attention: General Counsel
(b) in the case of the Executive:
to the last address of the Executive
in the records of the Corporation
and its subsidiaries
or to such other address as the parties may from time to time specify by notice
given in accordance herewith. Any notice so given shall be conclusively deemed
to have been given or made on the day of delivery, if personally delivered, or
if delivered by facsimile transmission or mailed as aforesaid, upon the date
shown on the facsimile confirmation of receipt or on the postal return receipt
as the date upon which the envelope containing such notice was actually received
by the addressee.
8.8 SUCCESSORS. This Agreement shall enure to the benefit of and be binding
upon the parties hereto and their respective personal or legal representatives,
heirs, executors, administrators, successors and assigns. The Executive's spouse
and daughter are intended third party beneficiaries with regard to their
benefits as described in Section 3.3(e) above.
8.9 SURVIVORSHIP. Upon the termination of Executive's employment, the
respective rights and obligations of the parties shall survive such termination
to the extent necessary to carry out the intended preservation of such rights
and obligations.
8.10 TAXES. All payments under this Agreement shall be subject to withholding
of such amounts, if any, relating to tax or other payroll deductions as the
Corporation may reasonably determine and should withhold pursuant to any
applicable law or regulation.
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8.11 CURRENCY. All dollar amounts set forth or referred to in this Agreement
refer to U.S. currency.
8.12 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
COTT CORPORATION
Per: /s/ Xxxxx X. Xxxxx
-----------------------------------
Xxxxx X. Xxxxx
I have authority to bind the Corporation
Per: /s/ Xxxxx Xxxxx
-----------------------------------
Xxxxx Xxxxx
I have authority to bind the Corporation
SIGNED, SEALED & DELIVERED )
in the presence of )
)
)
/s/ Xxxx Xxxxxxxxx ) /s/ Xxxx X Xxxxxxxx l/s
-----------------------------------
XXXX X. XXXXXXXX
COTT CORPORATION
STATEMENT OF RESPONSIBILITIES
- CHIEF EXECUTIVE OFFICER -
The Chief Executive Officer of Cott Corporation (the "Corporation") shall be
responsible for directing the Corporation with the objective of providing
maximum profit and return on invested capital, establishing short-term and
long-term objectives, plans, performance standards and policies subject to the
approval of the Board of Directors. To that end, the Chief Executive Officer
will be ultimately responsible for:
- Preparing, at least annually, a statement of objectives, plans,
performance standards and policies for the Corporation, which shall be
reviewed by the Human Resources, Compensation and Corporate Governance
Committee and shall be approved by the Board of Directors.
- Ensuring that the Corporation's material operating plans, performance
standards and policies are uniformly understood and properly interpreted
and administered by subordinates.
- Presenting proposed operating and capital expenditure budgets for review
and approval by the Board of Directors.
- Directing all investigations and negotiation pertaining to material
acquisitions or dispositions, mergers and joint ventures.
- Representing the Corporation as appropriate in its relationship with major
customers, suppliers, competitors, commercial and investment bankers,
investment analysts, the media, security holders, government agencies,
professional associations, unions, employees and the public generally.
- Analyzing the operating results of the Corporation and its principal
divisions relative to established objectives and taking appropriate steps
to correct unsatisfactory conditions.
- Making recommendations to the Human Resources, Compensation and Corporate
Governance Committee as regards Senior Officer succession planning and
compensation.
- Insuring the adequacy and soundness of the Corporation's financial
structure and reviewing projections of working capital requirements.
- Delegating any or all of the above-noted responsibilities and maintaining
ultimate supervisory responsibility to ensure that they are performed.
