EXHIBIT 10.18
CONFIDENTIALITY UNDERTAKING AND RESTRICTIVE COVENANT
TO: Cott Beverages Inc. ("Cott"), its subsidiaries, parents, affiliates
and associated companies (collectively and individually, the
"Corporation")
FROM: ROBERT J. FLAHERTY (the "Executive")
FOR GOOD AND VALUABLE CONSIDERATION, including without limitation the
Executive's employment with the Corporation and the wages and salary and other
benefits received and to be received by the Executive in respect of such
employment, the receipt and sufficiency of which consideration the Executive
hereby acknowledges:
1. CONFIDENTIALITY
The Executive acknowledges that in the course of carrying out, performing and
fulfilling his obligations to the Corporation, the Executive has had and will
have access to and has been and will be entrusted with information that would
reasonably be considered confidential to the Corporation, the disclosure of
which to competitors of the Corporation or to the general public, will be highly
detrimental to the best interests of the Corporation. Such information
("Confidential Information") includes, without limitation, trade secrets,
know-how, marketing plans and techniques, cost and pricing figures, customer
lists, supplier lists, software, and information relating to employees,
suppliers, customers and persons in contractual relationships with the
Corporation. Except as may be required in the course of carrying out his duties
to the Corporation, the Executive covenants and agrees that he will not
disclose, so long as he is employed by the Corporation or at any time
thereafter, any of such Confidential Information to any person, other than to
the directors, officers, employees or agents of the Corporation that have a need
to know such Confidential Information, nor shall the Executive use or exploit,
directly or indirectly, such Confidential Information for any purpose other than
for the purposes of the Corporation, nor will he disclose nor use for any
purpose, other than for those of the Corporation any other information which he
may acquire during his employment with respect to the business and affairs of
the Corporation. Notwithstanding all of the foregoing, the Executive shall be
entitled to disclose such Confidential Information if required pursuant to a
subpoena or order issued by a court, arbitrator or governmental body, agency or
official, provided that the Executive shall first have:
(a) notified the Corporation;
(b) consulted with the Corporation on the advisability of taking steps to
resist such requirements; and
(c) if the disclosure is required or deemed advisable, cooperate with the
Corporation in an attempt to obtain an order or other assurance that such
Confidential Information will be accorded confidential treatment.
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 exclusively to the Corporation. The Executive waives any and all moral
rights he may have in respect of any such items and acknowledges that all of
them shall be considered to be "works for hire" and owned by the Corporation. In
connection with the foregoing, the Executive agrees to execute any assignments
and/or acknowledgements as may be requested by the Corporation from time to
time.
3. CORPORATE OPPORTUNITIES
Any business opportunities related to the business of the Corporation which
become known to the Executive during his employment 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. PROPERTY
Upon termination of the Executive's employment, for whatever reason, the
Executive will return to the Corporation all property belonging to the
Corporation, including without limitation, all Confidential Information, keys,
manuals, customer lists, computer software and hardware, correspondence, files,
records (howsoever maintained), money, cards and supplies which may be in the
Executive's possession or control.
5. 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 this Agreement or the Executive's
employment (regardless of the reason for such termination), either
individually or in partnership, jointly or in conjunction with any other
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;
(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 during the 12
month period immediately preceding such time.
(b) For the purposes of this Agreement:
(i) "Territory" shall mean Canada, the United States, Mexico and the
United Kingdom;
(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.
6. GENERAL PROVISIONS
(a) The Executive acknowledges and agrees that in the event of a breach of the
covenants, provisions and restrictions in this Undertaking, the
Corporation's remedy in the form of monetary damages
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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 Undertaking are
reasonable in all of the circumstances. 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 Sections 1, 2, 3, 4 and 5 and this Section 6
shall survive the termination of the Executive's employment (regardless of
the reason for such termination).
(d) This Undertaking will be construed and interpreted in accordance with the
laws of the State of Florida and the federal laws of the United States
applicable therein.
EXECUTED AS OF THIS 5TH DAY OF DEC., 2004.
/S/ ROBERT J. FLAHERTY L/S
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NAME:
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