EXHIBIT 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT made with effect as of the 28th day of September, 2005
BETWEEN:
COTT CORPORATION
(the "CORPORATION")
-and-
MARK BENADIBA
(the "EXECUTIVE")
WHEREAS the Corporation currently employs the Executive and the Executive
wishes to continue to be employed by the Corporation.
AND WHEREAS the Corporation and the Executive are parties to an amended and
restated employment agreement dated October 15, 2003 and counter-signed by the
Executive on October 23, 2003 (the "2003 Employment Agreement").
AND WHEREAS the Corporation and the Executive wish to terminate the 2003
Employment Agreement as of the Effective Date (as defined below), and have
negotiated terms and conditions for a fixed-term period of employment.
AND WHEREAS the Corporation and the Executive have agreed to formalize the
terms and conditions agreed between them which will, as of the Effective Date,
govern the Executive's employment with the Corporation, all as set out in this
Agreement, and which will amend, supersede and replace any previous employment
agreement between the Corporation and the Executive (including, without
limitation, the 2003 Employment Agreement).
NOW THEREFORE in consideration of the mutual covenants and promises set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the Corporation and the
Executive, the parties hereby covenant and agree as follows:
ARTICLE I - DEFINITIONS AND INTERPRETATION
1.1 Definitions. For the purposes of this Agreement, the following words and
phrases shall have the following meanings:
(a) "AFFILIATE" has the same meaning as given to such word in the
Securities Act (Ontario), as amended or replaced from time to time.
-2-
(b) "AGREEMENT" means this agreement, including any schedules hereto, as
amended, supplemented, or modified in writing from time to time.
(c) "BENEFITS" means those benefits and perquisites as described in
Section 5.2 and in which the Executive is participating as at the Date
of Termination but, for greater certainty, excludes any share option,
share purchase, equity, profit-sharing, bonus, or other incentive
plans or entitlements.
(d) "BOARD" means the Board of Directors of the Corporation.
(e) "BUSINESS" means the business of manufacturing, selling, or
distributing non-alcoholic beverages or any other line of business
actively carried on by the Corporation or in the Corporation's active
contemplation to the knowledge of the Executive as at the Date of
Termination, including, without limitation, the business carried on by
any Affiliate.
(f) "COMPENSATION" shall mean the aggregate of the Executive's annual base
salary and annual automobile allowance as at the Date of Termination,
plus the Executive's target annual incentive bonus (such annual
incentive bonus being capped at 100%) but, for greater certainty,
excludes any retention or extraordinary bonuses, share option, share
purchase, equity, profit-sharing, or long-term incentive plans, awards
or entitlements.
(g) "CONFIDENTIAL INFORMATION" means information disclosed or accessible
to the Executive or acquired by the Executive as a result of his
employment with the Corporation and which is not in the public domain
or otherwise required to be publicly disclosed by applicable law and
includes, but is not limited to, information relating to the
Corporation's or any of its Affiliates' current, future or proposed
products/services or development of new or improved products/services,
marketing strategies, sales or business plans, the names and
information about the Corporation's past, present and prospective
customers and clients, technical data, records, reports, presentation
materials, interpretations, forecasts, test results, formulae,
projects, research data, personnel data, budgets, unpublished
financial statements, Innovations, and any other information received
by the Corporation from third parties pursuant to an obligation of
confidentiality.
(h) "DATE OF TERMINATION" means the date of cessation of the Executive's
employment without regard to any notice of termination, pay in lieu of
notice of termination, severance or other damages and, for greater
certainty, shall mean the earliest of the following dates:
(i) the expiry of the Term;
(ii) the date of the Executive's death; or
(iii) the date set out in any written notice of
termination/resignation delivered by the Corporation or the
Executive to the other party.
-3-
(i) "EFFECTIVE DATE" means the effective date of this Agreement as set
forth above, that is, September 28, 2005.
(j) "INNOVATIONS" means any:
(i) processes, machines and compositions of matter;
(ii) inventions and improvements (whether or not protectable under
patent laws);
(iii) techniques, ideas, concepts and programs;
(iv) works of authorship and information fixed in any tangible medium,
including source code for software, (whether or not protectable
under copyright laws) and all moral rights therein;
(v) mask works or integrated circuit topography;
(vi) trademarks, trade names, trade dress and trade secrets and
know-how (whether or not protectable under trade secret laws);
(vii) other subject matter protectable under patent, copyright, mask
work, trademark, trade secret or other similar laws; or
(viii) any derivative works, improvements, renewals, extensions,
continuations, divisionals, continuations in part, or continuing
patent applications relating to any Innovation.
(k) "JUST CAUSE" means:
(i) the wilful and continued failure by the Executive substantially
to perform his duties with the Corporation (other than a failure
resulting from his incapacity due to physical or mental illness)
after a written demand for substantial performances delivered to
the Executive by the Board, which demand specifically identifies
the manner in which the Board believes that the Executive has not
substantially performed his duties, and the Executive has failed
to correct such failure to perform his duties within thirty (30)
days after such written demand is delivered to him; or
(ii) the wilful engaging by the Executive in conduct that is
demonstrably and materially injurious to the Corporation,
monetarily or otherwise, provided that no act or failure to act
on the Executive's part shall be deemed "wilful" unless done, or
omitted to be done, by the Executive not in good faith and
without reasonable belief that his action or omission was in the
best interests of the Corporation
(l) "SEVERANCE PERIOD" shall mean the period commencing on the Date of
Termination and ending twenty-four (24) months thereafter.
-4-
(m) "TERRITORY" means:
(i) Canada;
(ii) every state or possession of the United States of America; and
(iii) every country in which the Corporation or any of its Affiliates
maintain an office and actively carry on the Business
ARTICLE II - TERM
2.1 Fixed Term. This Agreement shall commence on the Effective Date and this
Agreement and the Executive's employment shall be for a maximum fixed term of
three (3) years ending on September 27, 2008 (the "Term"), subject to earlier
termination of the Executive's employment in accordance with Article VI below.
At the end of the Term, this Agreement and the Executive's employment are wholly
and automatically at an end without notice or further obligation by the
Corporation to the Executive other than amounts or benefits earned and accrued
by the Executive and payable by the Corporation up to such expiry date. The
parties each acknowledge that there is no representation, warranty, covenant or
commitment to renew or extend the Term or the Executive's employment beyond the
expiry of the Term.
2.2 Consultancy: Notwithstanding Section 2.1 above, at the end of the Term and
effective as of the day following up the expiry of the Term, the Corporation and
the Executive shall enter into a consultancy agreement substantially including
the terms and conditions and in the form attached as Schedule "A" to this
Agreement.
ARTICLE III - EMPLOYMENT AND POSITION
3.1 Position. Subject to the terms and conditions set out in this Agreement, the
Corporation hereby agrees to employ the Executive, and the Executive hereby
agrees to serve the Corporation, in the position of Executive Vice President, or
such other position as may be assigned to the Executive by the Corporation's
President and Chief Executive Officer or the Board but provided that such
position is of at least equivalent stature and level of responsibilities within
the Corporation.
3.2 Executive's Covenant. The Executive represents and warrants to the
Corporation that he is free to enter this Agreement and that he is not subject
to any obligation or restriction (statutory, contractual, or at common law)
which would prevent or interfere with the performance of all of his obligations
hereunder.
3.3 Place of Employment. The Executive shall provide his duties and services to
the Corporation at its office in Toronto, Ontario, or at such other place or
places within the greater Toronto area as the Corporation may determine from
time-to-time. The Executive's place, of employment will not be moved outside of
the greater Toronto area without his consent. The Executive acknowledges that,
in the ordinary course of business and in carrying out his duties for the
Corporation, he will have customary business travel obligations.
-5-
ARTICLE IV - DUTIES
4.1 Full-Time. The Executive's position with Corporation is a full-time one.
Therefore, throughout the duration of his employment, the Executive shall devote
his full working time and attention to the business and affairs of the
Corporation, acting in the best interests of the Corporation at all times. The
Executive shall not, during his employment with the Corporation, accept nor hold
any position as an officer, director, employee, consultant, or any like position
for or on behalf of any entity without the prior written approval of the
Corporation, which approval may be withheld in its sole discretion.
4.2 Duties; Reporting. Reporting to and subject to the general direction of the
Corporation's President and Chief Executive Officer or as may otherwise be
designated by the Board (but provided that the Executive shall always report to
the most senior management executive officer of the Corporation), the Executive
shall perform such other duties and responsibilities consistent with such
position as may be assigned to him by the Corporation's President and Chief
Executive Officer or the Board from time-to-time. The Executive shall perform
all duties in accordance with the charter documents and by-laws of the
Corporation, the instructions of the Corporation's President and Chief Executive
Officer and the Board, and all of the Corporation's policies and codes of
conduct, rules and regulations in effect from time to time. In addition to the
duties and responsibilities associated with his position, the Executive shall
perform such other duties and responsibilities consistent with the position as
may be assigned to him by the Corporation's President and Chief Executive
Officer or the Board from time to time. The Corporation's President and Chief
Executive Officer or the Board retain full authority to change the Executive's
duties and responsibilities and reporting relationships (but provided that the
Executive shall always report to the most senior management executive officer of
the Corporation) and to assign new duties and responsibilities provided that
such changes do not result in a diminution of the scope or dignity of the
Executive's overall duties and responsibilities.
4.3 Compliance. Recognizing the Corporation's commitment to achieving the
highest standards of openness and accountability, the Executive shall raise, in
a prompt manner, any good faith concerns he has regarding the conduct of the
Corporation's business or compliance with the Corporation's financial, legal or
reporting obligations. Such good faith concerns should be brought first to the
attention of the Corporation's President and Chief Executive Officer or to the
Board.
ARTICLE V - COMPENSATION AND BENEFITS
5.1 Signing Bonus. As an inducement to the Executive to sign this Agreement and
in full and final satisfaction of all of the Executive's payments, benefits,
rights and entitlements due or payable under the 2003 Employment Agreement, the
Corporation shall pay to the Executive a signing bonus of $1,000,000.00, such
payment to be made on a lump sum basis within ten (10) business days of the
execution of this Agreement by the Executive.
5.2 Base Salary. During his employment, the Corporation shall pay the Executive
a base salary of $500,000.00 annually, paid in such instalments and at such
times and in the same manner as the Corporation pays its other senior executives
generally, but not less than monthly. The Executive's base salary will be
reviewed annually by the Human Resources and
-6-
Compensation Committee (or as may otherwise be delegated by the Board) for
consideration of an increase, if appropriate, in its discretion.
5.3 Benefits. During his employment, the Executive shall be eligible to
participate in all benefits and all perquisites (including medical,
prescription, dental, disability, life, AD&D and travel insurance), provided by
the Corporation on the same basis as similarly situated senior executives of the
Corporation employed in Canada, but excluding the Corporation's President and
Chief Executive Officer, as such plans and policies may be amended from
time-to-time. The Executive acknowledges and agrees that the benefits and
perquisites made available to him (including group insurance) are subject to
change in the Corporation's sole discretion, and further, any entitlement of the
Executive is subject to and shall be governed by the terms and conditions of any
written policies, plans, programs or contracts.
5.4 Automobile. During his employment, the Corporation shall pay to the
Executive an annual automobile allowance in accordance with the Corporation's
policy as it may be amended from time-to-time.
5.5 Vacation. For each year of employment during the Term, the Executive shall
accrue vacation in accordance with the Corporation's vacation policy for
management, currently five (5) weeks' paid vacation per calendar year, such
vacation to extend for such periods and to be taken at such intervals as shall
be appropriate and consistent with the proper performance of the Executive's
duties and as agreed upon between the Executive and the Corporation. To the
extent permitted by applicable law, accumulated vacation time or pay may not be
carried forward except with the prior approval of the Board.
5.6 Annual Bonus Incentive. For each year of employment during the Term, the
Executive shall be eligible for an annual bonus incentive with a target bonus
award of $575,000.00 (at 100%), and a potential maximum award based on exceeding
achievements of $1,150,000.00 (at 200%). The Executive's annual bonus incentive
shall include the following components, terms and conditions:
(a) Objectives (including all performance thresholds, targets and maximum
goals) will be set annually by the Human Resources and Compensation
Committee (or as may otherwise be delegated by the Board).
(b) The level of achievement of all objectives will be evaluated by the
Human Resources and Compensation Committee (or as may otherwise be
delegated by the Board) as soon as possible following each fiscal
year.
(c) Subject to Sections 6.3 and 6.4 below, bonuses, if any, shall be
earned only upon completion of the relevant fiscal year of the
Corporation and shall be payable after completion of the Corporation's
audited financial statements for such fiscal year.
5.7 Reimbursement of Expenses. Upon presentation of proper receipts or other
proof of expenditure and subject to such reasonable guidelines or limitations
provided by the Corporation from time to time, the Corporation shall reimburse
the Executive for all reasonable and necessary expenses actually incurred by the
Executive directly in connection with the business affairs of the Corporation
and the performance of his duties hereunder. The Executive shall comply with
-7-
such reasonable limitations and reporting requirements with respect to such
expenses as the Board may establish from time to time.
5.8 Continuation of Benefits. All benefits, stock options and annual bonus
incentives to which the Executive was entitled immediately prior to the
execution of this Agreement shall, unless otherwise replaced or set out in this
Agreement, continue without loss or change as of the Effective Date. For greater
certainty, all grants of stock options to the Executive shall be governed by the
applicable plans and policies, specifically including and without limitation,
the Restated 1986 Common Share Option Plan of the Corporation, as they may be
amended from time-to-time.
5.9 No Other Entitlements. The Executive is not entitled to any other payment,
benefit, perquisite, allowance or entitlement other than as specifically set out
in this Agreement or as otherwise agreed to in writing and signed by the
Corporation and the Executive.
ARTICLE VI - TERMINATION OF EMPLOYMENT
6.1 Early Termination. Notwithstanding any other provision in this Agreement,
the Executive's employment may be terminated at any time as follows:
(a) Death. This Agreement and the Executive's employment shall
automatically terminate upon the death of the Executive.
(b) Just Cause. The Corporation may terminate this Agreement and the
Executive's employment at any time forthwith for any Just Cause.
(c) Without Just Cause. The Corporation may terminate this Agreement and
the Executive's employment at any time without Just Cause and for any
reason or no reason whatsoever by providing written notice to the
Executive specifying the effective Date of Termination (which may be
forthwith).
(d) Resignation. The Executive may terminate this Agreement and his
employment at any time by providing written notice to the Board
specifying the effective date of termination (such date being not less
than three (3) months and not more than six (6) months after the date
of the Executive's written notice). The Corporation may elect to deem
any date prior to the date specified in the notice as the Date of
Termination.
6.2 Termination for Just Cause or Resignation. If this Agreement and the
Executive's employment is terminated pursuant to subsections 6.1(b) or 6.1(d)
above, then the Corporation shall pay to the Executive an amount equal to the
base salary and vacation pay earned by and payable to the Executive up to the
Date of Termination and the Executive shall have no entitlement to any further
notice of termination, payment in lieu of notice of termination, severance, or
any damages whatsoever. Participation in all bonus plans (specifically including
all short and long term incentive plans) or other stock option, equity, or
profit participation plans terminates immediately upon the Date of Termination
and the Executive shall not be entitled to any additional bonus or incentive
award, pro rata or otherwise, except as may have been owing to him for the
Corporation's fiscal year immediately preceding the Date of Termination.
-8-
6.3 Termination by Reason of Death. If this Agreement and the Executive's
employment is terminated pursuant to subsections 6.1(a) above, then the
Corporation shall pay to the Executive an amount equal to the base salary and
vacation pay earned by and payable to the Executive up to the Date of
Termination and the Executive shall have no entitlement to any further notice of
termination, payment in lieu of notice of termination, severance, or any damages
whatsoever. Participation in all bonus plans (specifically including all short
and long term incentive plans) or other stock option, equity, or profit
participation plans terminates immediately upon the Date of Termination, but the
Corporation shall pay to the Executive his bonus or incentive entitlements (if
any) calculated pro rata for the period up to the Date of Termination based on
achievement of the bonus incentive target to such date, such payment(s) being
made immediately if the amount can be readily determined but, in any event, no
later than thirty (30) days following the completion of the audited financial
statements for the fiscal year in which the Date of Termination occurs.
6.4 Termination Without Just Cause. If this Agreement and the Executive's
employment is terminated by the Corporation without Just Cause pursuant to
subsection 6.1(c) above, then the following provisions shall apply:
(a) The Corporation shall pay to the Executive an amount equal to the base
salary, car allowance, and vacation pay earned by him and payable to
him up to the Date of Termination.
(b) Participation in all bonus plans (specifically including all short and
long term incentive plans) stock option, equity, or profit
participation plans terminates immediately upon the Date of
Termination. However, the Corporation shall pay to the Executive his
bonus (if any) calculated pro rata for the period up to the Date of
Termination based on achievement of the annual bonus incentive target
to such date, such payment(s) being made immediately if the amount can
be readily determined but, in any event, not later than thirty (30)
days following the completion of the audited financial statements for
the fiscal year in which the Date of Termination occurs.
(c) The Corporation shall pay to the Executive, or as he may direct,
severance in an amount equivalent to two (2) times the Compensation
(for greater certainty, such severance being no less than
Cdn.$2,150,000.00), payable in a lump sum within ten (10) business
days following the Date of Termination.
(d) To the extent that the Corporation may do so legally and in compliance
with its plans and policies in existence from time to time, the
Corporation shall continue all Benefits for the Severance Period,
provided that, if the Corporation cannot continue any particular
Benefit, then the Corporation shall reimburse the Executive for all
reasonable expenses incurred by him to replace such Benefit for an
equivalent duration.
6.5 No Mitigation. The Executive shall not be required to mitigate damages by
seeking other employment or otherwise, nor shall any amount provided for under
this Agreement be reduced in any respect in the event that the Executive shall
secure or not reasonably pursue alternative employment following the termination
of the Executive's employment with the Corporation,
-9-
provided that, to the extent that the Executive substantially replaces any
Benefit(s) following the Date of Termination, the Executive shall advise the
Corporation forthwith and the Corporation shall be no longer be required to
continue any Benefit(s) which has been so replaced by the Executive.
6.6 Release. The parties agree that the provisions of this Article VI are fair
and reasonable and that the payments, benefits and entitlements included in
Section 6.4 hereof are reasonable estimates of the damages which will be
suffered by the Executive in the event of the termination of this Agreement and
of his employment with the Corporation and shall not be construed as a penalty.
The Executive acknowledges and agrees that the payments pursuant to this Article
VI 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, 2000 (Ontario), as amended from time to time, the minimum provisions of
which are deemed incorporated into this Agreement and which shall prevail to the
extent greater. Except as otherwise provided in this Article VI, the Executive
shall not be entitled to any further notice of termination, payment in lieu of
notice of termination, severance, damages, or any additional compensation
whatsoever. As a condition precedent to any payment of benefits pursuant to
subsections 6.4(b), (c), or (d) hereof (but provided that the Corporation has
complied with its obligations under this Agreement), the Executive shall deliver
a full and final release from all actions or claims, known and unknown, in
connection with the Executive's employment with the Corporation or the
termination thereof in favour of the Corporation, its Affiliates, and all of
their respective officers, directors, trustees, shareholders, employees,
attorneys, insurers and agents, such release to be in a form satisfactory to the
Corporation. No payment or benefits under subsections 6.4(b), (c) or (d) shall
be made until such release has been signed and returned by the Executive and any
right of revocation under applicable law has expired.
6.7 Resignation as Director and Officer. The Executive covenants and agrees
that, upon any termination of this Agreement and of his employment, howsoever
caused, he shall forthwith tender his resignation from all offices,
directorships and trusteeships then held by the Executive at the Corporation or
any of the Affiliates, such resignation to be effective upon the Date of
Termination. If the Executive fails to resign as set out above, the Executive
will be deemed to have resigned from all such offices, directorships and
trusteeships and the Corporation is hereby authorized by the Executive to
appoint any person in the Executive's name and on the Executive's behalf to sign
any documents or do anything necessary or required to give effect to such
resignation.
6.8 Return of Property. All equipment, keys, pass cards, credit cards, software,
material, data, written correspondence, memoranda, communication, reports, or
other documents or property pertaining to the business of the Corporation used
or produced by the Executive in connection with his employment, or in his
possession or under his control, shall at all times remain the property of the
Corporation. The Executive shall return all property of the Corporation in his
possession or under his control in good condition forthwith upon any request by
the Corporation or upon any of the termination of this Agreement and of the
Executive's employment (regardless of the reason for such termination).
-10-
ARTICLE VII - CONFIDENTIALITY
7.1 Protection of Confidential Information. While employed by the Corporation
and following the termination of this Agreement and the Executive's employment
(regardless of the reason for any termination), the Executive shall not,
directly or indirectly, in any way use or disclose to any person any
Confidential Information except as provided for herein. The Executive agrees and
acknowledges that the Confidential Information of the Corporation is the
exclusive property of the Corporation to be used exclusively by the Executive to
perform the Executive's duties and fulfil his obligations to the Corporation and
not for any other reason or purpose. Therefore, the Executive agrees to hold all
such Confidential Information in trust for the Corporation and the Executive
further confirms and acknowledges his fiduciary duty to use his best efforts to
protect the Confidential Information, not to misuse such information, and to
protect such Confidential Information from any misuse, misappropriation, harm or
interference by others in any manner whatsoever. The Executive agrees to protect
the Confidential Information regardless of whether the information was disclosed
in verbal, written, electronic, digital, visual or other form, and the Executive
hereby agrees to give notice immediately to the Corporation of any unauthorized
use or disclosure of Confidential Information of which he becomes aware. The
Executive further agrees to assist the Corporation in remedying any such
unauthorized use or disclosure of Confidential Information. In the event that
the Executive is requested or required to disclose to third parties any
Confidential Information or any memoranda, opinions, judgments or
recommendations developed from the Confidential Information, the Executive will,
prior to disclosing such Confidential Information, provide the Corporation with
prompt notice of such request(s) or requirement(s) so that the Corporation may
seek appropriate legal protection or waive compliance with the provisions of
this Agreement. The Executive will not oppose action by, and will cooperate with
the Corporation to obtain legal protection or other reliable assurance that
confidential treatment will be accorded the Confidential Information.
7.2 Corporate Opportunities. Any business opportunities related in any way to
the business and affairs of the Corporation or any of its Affiliates which
become known to the Executive during his employment hereunder shall be fully
disclosed and made available to the Corporation and shall not be appropriated by
Executive under any circumstance without the written consent of the Corporation.
ARTICLE VIII - PROPRIETARY RIGHTS
8.1 Innovations. The Executive understands, acknowledges, and agrees that all
Innovations which the Executive, solely or jointly with others, conceives,
reduces to practice, creates, derives, develops or makes in the course of or in
connection with the Executive's employment with the Corporation shall, to the
maximum extent allowed by applicable law, belong solely to the Corporation and
all such Innovations which constitute works of authorship shall be "works made
in the course of employment" pursuant to the Copyright Act (Canada), as amended
and "works for hire" under the Copyright Act (U.S.). The Executive shall
promptly disclose to the Corporation in writing any and all Innovations,
conceived, reduced to practice, created, derived, developed or made in the
course of or otherwise in connection with the Executive's employment with the
Corporation, whether alone or with others, and whether during regular working
hours or through the use of facilities and properties of the Corporation or
otherwise which may in any way relate to the business of the Corporation.
-11-
8.2 Assignment of Innovations. The Executive hereby assigns and agrees to assign
to the Corporation or such other party as the Corporation may designate all of
the Executive's right, title, and interest (including but not limited to patent
rights and copyrights) in and to all Innovations and all related patents, patent
applications, copyright and copyright applications, and does hereby waive all
moral rights, if any, that the Executive may have therein in favour of the
Corporation or such other party as the Corporation may designate and, at the
Corporation's request, the Executive agrees to provide whatever assistance the
Corporation (or such other party, as the case may be) may require to register,
record, perfect, or otherwise secure the Corporation's (or such other party's,
as the case may be) rights in the Innovations. The Executive hereby irrevocably
appoints and designates the Corporation and its duly authorized officers and
agents as his agents and attorneys-in-fact to act for and in the Executive's
behalf and instead of the Executive, to execute such documents and to take such
actions as the Corporation believes are necessary to effect the foregoing
assignment.
ARTICLE IX - RESTRICTIVE COVENANTS
9.1 Non-Competition: The Executive covenants that he will not (without prior
written consent of the Corporation) at any time during the Term, during the
consultancy referred to in Section 2.2 above, or during the twenty-four (24)
month period following the date the Executive ceases to be an employee of the
Corporation or other termination of this Agreement (regardless of who initiated
the termination and whether with or without Just Cause), directly or indirectly,
anywhere within the Territory, either individually or in partnership, jointly or
in conjunction with any other person, firm, association, syndicate, company or
corporation, whether as agent, shareholder, employee, consultant, or in any
manner whatsoever, engage in, carry on or otherwise be concerned with, be
employed by, associated with or in any other manner connected with, or have any
interest in, manage, advise, lend money to, guarantee the debts or obligations
of, render services or advice to, permit the Executive's name, or any part
thereof to be used or employed in connection with, in whole or in part, any
business the same or similar to or in competition with that of the Business.
9.2 Non-Solicitation. The Executive covenants that he will not (without prior
written consent of the Corporation) at any time during the Term, during the
consultancy referred to in Section 2.2 above, or during the twenty-four (24)
month period following the date the Executive ceases to be an employee of the
Corporation or other termination of this Agreement (regardless of who initiated
the termination and whether with or without Just Cause), directly or indirectly,
either individually or in partnership, jointly or in conjunction with any other
person, firm, association, syndicate, company or corporation, whether as agent,
shareholder, employee, consultant, or in any manner whatsoever:
(a) solicit or entice away, or endeavour to solicit or entice away from
the Corporation, employ, or otherwise engage (as an employee,
independent contractor or otherwise) any person who is employed or
engaged by the Corporation (including, for greater certainty, any
Affiliate) as at the Date of Termination or who was so employed or
engaged within the twelve (12) month period preceding such date; or
(b) for any purpose competitive with the Business, canvass, solicit or
approach for orders, or cause to be canvassed or solicited or
approached for orders, or accept
-12-
any business or patronage from any person or entity who is or which is
a customer, client, supplier, licensee or business relation of the
Corporation (including, for greater certainty, any Affiliate) as at
the Date of Termination or within the twelve (12) month period
preceding such date; or
(c) induce or attempt to induce any customer, client, supplier, licensee
or business relationship of the Corporation (including, for greater
certainty, any Affiliate) to cease doing business with the
Corporation.
9.3 Passive Investments. Nothing in this Agreement shall prohibit or restrict
the Executive from holding or becoming beneficially interested in up to one
percent (1%) 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.
ARTICLE X - REMEDIES
10.1 Remedy. The Executive acknowledges and agrees that he is employed in a
fiduciary capacity, with obligations of trust and loyalty owed by him to the
Corporation. Accordingly, the Executive agrees that the restrictions in Article
VII, Article VIII and Article IX are reasonable in the circumstances of the
Executive's employment and that the business and affairs of the Corporation
cannot be properly protected from the adverse consequences of the actions of the
Executive other than by the restrictions set forth in this Agreement. 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.
10.2 Injunctions, Etc. The Executive acknowledges and agrees that in the event
of a breach of the covenants, provisions and restrictions in Article VII,
Article VIII and Article IX by the Executive, the Corporation's remedy in the
form of monetary damages will be inadequate. Therefore, the Corporation shall be
and is hereby authorized and entitled, in addition to all other rights and
remedies available to it, to apply to a court of competent jurisdiction for
interim and permanent injunctive relief and an accounting of all profits and
benefits arising out of such breach without the necessity of posting a bond or
other security.
10.3 Survival. Each and every provision of Article I, Article VII, Article VIII
and Article IX, and Article X shall survive the termination of this Agreement or
the Executive's employment hereunder (regardless of the reason for such
termination).
ARTICLE XI - TERMINATION OF 2003 EMPLOYMENT AGREEMENT
11.1 2003 Employment Agreement. The Corporation and the Executive agree that the
2003 Employment Agreement is terminated and of no further force or effect as of
this Effective Date. The Executive confirms that he has received all of the
payments, benefits, perquisites, allowances and entitlements due or payable to
him pursuant to the 2003 Employment Agreement and that the Corporation has no
further obligations to the Executive in this regard, including any payments,
benefits perquisites, allowances or entitlements which would have arisen in
connection with the termination of the 2003 Employment Agreement.
-13-
ARTICLE XII - GENERAL CONTRACT TERMS
12.1 Recitals. The Corporation and the Executive represent and warrant to each
other that the Recitals set out above are true.
12.2 Currency. All amounts payable pursuant to this Agreement are expressed in
and shall be paid in Canadian currency.
12.3 Withholding. All amounts paid or payable and all benefits, perquisites,
allowances or entitlements provided to the Executive under this Agreement are
subject to applicable taxes and withholdings. Accordingly, the Corporation shall
be entitled to deduct and withhold from any amount payable to the Executive
hereunder such sums that the Corporation is required to withhold pursuant to any
federal, provincial, state, local or foreign withholding or other applicable
taxes or levies. Notwithstanding the foregoing, the Executive acknowledges and
agrees that he is solely responsible for all tax liability arising from his
receipt of any payments, benefits, perquisites, allowances or entitlements as
set out in this Agreement.
12.4 Rights and Waivers. All rights and remedies of the parties are separate and
cumulative, and none of them, whether exercised or not, shall be deemed to be to
the exclusion of any other rights or remedies or shall be deemed to limit or
prejudice any other legal or equitable rights or remedies which either of the
parties may have.
12.5 Waiver. Any purported waiver of any default, breach or non-compliance under
this Agreement is not effective unless in writing and signed by the party to be
bound by the waiver. No waiver shall be inferred from or implied by any failure
to act or delay in acting by a party in respect of any default, breach or
non-observance or by anything done or omitted to be done by the other party. The
waiver by a party of any default, breach or non-compliance under this Agreement
shall not operate as a waiver of that party's rights under this Agreement in
respect of any continuing or subsequent default, breach or non-observance
(whether of the same or any other nature).
12.6 Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of the prohibition or unenforceability and shall be severed from
the balance of this Agreement, all without affecting the remaining provisions of
this Agreement or affecting the validity or enforceability of such provision in
any other jurisdiction.
12.7 Notices. 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:
to the Corporation at:
207 Queen's Quay West
Suite 340
Toronto, ON M5J 1A7
Facsimile No. (416) 203-6207
Attention: Chair
-14-
the Executive at:
25 Parkwood Avenue
Toronto, ON M4V 2W9
or the last address in the Corporation's records
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.
12.8 Time of Essence. Time shall be of the essence of this Agreement in all
respects.
12.9 Successors and Assigns. This Agreement shall inure to the benefit of, and
be binding on, the parties and their respective heirs, administrators,
executors, successors and permitted assigns. The Corporation shall have the
right to assign this Agreement to any of its Affiliates or to any successor
(whether direct or indirect, by purchase, amalgamation, arrangement, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Corporation. The Executive by the Executive's signature hereto
expressly consents to such assignment and, provided that such successor agrees
to assume and be bound by the terms and conditions of this Agreement, all
references to the "Corporation" hereunder shall include its successor. The
Executive shall not assign or transfer, whether absolutely, by way of security
or otherwise, all or any part of the Executive's rights or obligations under
this Agreement without the prior consent of the Corporation, which may be
arbitrarily withheld.
12.10 Amendment. No amendment of this Agreement will be effective unless made in
writing and signed by the parties.
12.11 Entire Agreement. This Agreement (together with the plans and policies
referred to herein) constitutes the entire agreement between the parties
pertaining to the subject matter of this Agreement and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written. There are no conditions, warranties, representations or other
agreements between the parties in connection with the subject matter of this
Agreement (whether oral or written, express or implied, statutory or otherwise)
except as specifically set out in this Agreement.
12.12 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable in that Province and shall be treated, in all respects, as an Ontario
contract.
12.13 Headings. The division of this Agreement into Sections and the insertion
of headings are for convenience or reference only and shall not affect the
construction or interpretation of this Agreement.
12.14 Independent Legal Advice. The parties acknowledge that prior to executing
this Agreement they have each had the opportunity to obtain independent legal
advice and that they
-15-
fully understand the nature of this Agreement and that they are entering into
this Agreement voluntarily.
12.15 Ambiguities. As each party and its legal counsel has participated in the
review and revision of this Agreement, any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not apply
in interpreting this Agreement.
IN WITNESS WHEREOF this Agreement has been signed by the parties hereto
under seal with effect on the date set out above.
SIGNED, SEALED AND
DELIVERED IN THE PRESENCE OF COTT CORPORATION
Per: /s/ Colin D. Walker
-----------------------------------
Title SVP
Per: /s/ John K. Sheppard
-----------------------------------
Title President & CEO
/s/ J. Pacheco ) /s/ Mark Benadiba
- -------------------------------------) --------------------------------
Witness ) MARK BENADIBA l/s
EXHIBIT 10.2
SCHEDULE "A"
TO THE EXECUTIVE EMPLOYMENT AGREEMENT
MADE AS OF NOVEMBER ____, 2005
INDEPENDENT CONTRACTOR AGREEMENT
THIS AGREEMENT made with effect as of the 28th of September, 2008.
BETWEEN:
COTT CORPORATION
(hereinafter called "Cott")
- and -
MARK BENADIBA, of the City of Toronto
(hereinafter called the "Contractor")
WHEREAS the Contractor has been an employee of Cott pursuant to a fixed
term contract, such fixed-term employment contract to expire and employment to
cease on September 27, 2008;
AND WHEREAS Cott and the Contractor have negotiated an arrangement on the
terms and conditions set out herein whereby the Contractor will be available to
provide consulting services from time-to-time as requested by and for the
benefit of Cott subsequent to the expiry of the fixed-term employment contract
and cessation of the Contractor's employment;
AND WHEREAS the terms set out in this Agreement shall be effective from
September 28, 2008 (the "Effective Date") and the Contractor shall be entitled
to payment in accordance with the payment terms set out herein;
NOW THEREFORE, in consideration of the promises and mutual covenants herein
contained, the parties hereto intending to be legally bound, do hereby agree as
follows:
1. CONSULTING SERVICES: Commencing on the Effective Date, Cott agrees to
retain the Contractor (who agrees to be retained by Cott) as a consultant
to provide such consulting services as requested by and for the benefit of
Cott or its affiliates from time-to-time and as more specifically described
in Appendix "1" attached hereto (the "Consulting Services"). The Consulting
Services shall be performed at Cott's premises or at such other locations
in Toronto, Canada, Tampa Bay, Florida, or such other mutually agreeable
locations, or for the benefit of such customers, suppliers or organizations
as Cott may direct. The Contractor is expected to observe all existing and
future rules and regulations as identified to him by Cott.
2. TERM: The Consulting Services and the Contractor's availability therefor
shall commence on the Effective Date and shall continue thereafter for a
fixed period of two
-2-
(2) years ending on September 27, 2010 (the "Term"). Unless specifically
renewed or extended in writing signed by Cott and the Contractor this
Agreement shall be wholly and automatically terminated without further
payment obligation from Cott at the expiry of the Term. The Contractor
specifically acknowledges that Cott is under no obligation to renew or
extend this Agreement.
3. CONSULTING FEES: In order to maintain the Contractor's availability to
perform the Consulting Services during the Term, Cott shall pay to the
Contractor an annual retainer, inclusive of all taxes, during the Term of
Cdn. $125,000.00 (the "Retainer"). The Retainer will include up to 75
business days of performance of the Consulting Services per year during the
Term if and when required by Cott. The Retainer shall be paid in equal
monthly instalments commencing on the Effective Date and the Contractor
shall provide invoices on a monthly basis as a condition of payment. There
shall be no other fees due or payable to the Contractor during the Term
except as may be specifically agreed in writing and signed by Cott. The
Contractor acknowledges that he is not eligible for any vacation pay or
employee benefits or perquisites from Cott pursuant to this Agreement. Cott
makes no representations as to any minimum level of Consulting Services
that will be required of the Contractor nor any minimum level of
compensation beyond the agreed rate of the Retainer.
4. BINDING THE CORPORATION: During the Term, the Contractor shall not, without
the prior written consent of Cott, enter into any contract or commitment in
the name of or on behalf of Cott nor bind Cott in any respect whatsoever.
5. EXPENSES: The parties shall be responsible for their own expenses, except
that the Contractor will be reimbursed in accordance with Cott's policy for
all business and travel expenses and provided appropriate receipts,
invoices, etc., are supplied. Cott will provide administrative support to
the extent practicable in order to facilitate the provision of the
Consulting Services.
6. INDEPENDENT CONTRACTOR: The parties acknowledge and agree that in
performing the Consulting Services, the Contractor is not an employee of
Cott but is performing services as an independent contractor. To the extent
required by law, the Contractor agrees to register for and include a GST
registration number on all invoices and shall report and pay all taxes,
employment insurance, Canada Pension Plan or similar contributions as are
required by law. The Contractor acknowledges and agrees that Cott shall not
be required to make any deductions or contributions (including employment
insurance, Canada Pension Plan, workers' compensation, employer health tax
or similar levies) in respect of his engagement. The Contractor shall:
(a) be responsible to report to the proper authorities and pay all taxes,
employment insurance contributions, Canada Pension Plan contributions,
employer health tax, workers' compensation premiums, goods and
services tax, or any other levies or taxes for which the Contractor
may be liable at law in respect of any payments to him from Cott;
-3-
(b) where required by the Workplace Safety & Insurance Act, register for
coverage and maintain all contributions and assessments required on an
up-to-date basis, paying all of them as required; and
(c) indemnify and save Cott and its directors, officers and employees
harmless from all liabilities, damages, fines, interest or penalties
which any of them may incur arising out of or relating to any breach
by the Contractor of this Agreement (including negligent performance
of the Consulting Services) or any failure by the Contractor to make
any payments, withholdings, deductions or remittances as may be
required by law to be made by him.
7. CONFIDENTIALITY: Unless required by law to do so, the Contractor shall not
disclose to any person and shall not use for his own purposes or for any
purposes other than for the benefit of Cott any confidential or proprietary
information concerning Cott or any such information the Contractor acquired
in relation to any of the businesses of Cott (including its affiliates
customers, suppliers, or employees). This paragraph 7 shall apply before
and subsequent to the termination of this Agreement, howsoever caused,
provided that it shall not apply to the extent that such confidential
information is publicly available without breach of any obligation by the
Contractor hereunder.
8. PROPRIETARY INFORMATION: All reports, research, working papers, data,
procedures, computer programs (including source code and documentation),
and other material or information produced or created in the performance of
the services by the Contractor, or by any agent, employee, or
sub-contractor of the Contractor, for the use of Cott, or to fulfill any
requirement under this Agreement (all of which are hereafter called the
"Property") shall be assigned to and constitute the sole property of Cott
and may not be published or released without Cott's prior written consent.
The Contractor agrees to deliver the Property and all copies thereof to
Cott forthwith upon request. Upon termination of this Agreement, however
caused, the Contractor will return to Cott all the Property belonging to
Cott, including all confidential information, which may be in his
possession.
9. OTHER SERVICES BY CONTRACTOR: The Contractor is free to offer services
during the Term to any other person or entity except any time that the
Contractor is required to provide Consulting Services to Cott and except to
or on behalf of any other person or entity that carries on the business of
manufacturing, selling, or distributing non-alcoholic beverages or any
other line of business actively carried on by Cott or is in Cott's act of
contemplation to the knowledge of the Contractor including, without
limitation, the business carried on by any of Cott's affiliates or
subsidiaries.
10. ASSIGNMENT: The Contractor agrees that this Agreement may be assigned by
Cott to any of its affiliates, provided that such assignee expressly
assumes all of Cott's obligations to the Contractor hereunder on a joint
and several basis with Cott. Cott agrees that this Agreement may be
assigned by the Contractor to any corporation or business entity of which
the Contractor is an employee, provided that such assignee expressly
assumes all of the Contractor's obligations to Cott hereunder on a joint
and several basis with the Contractor, and further, provided that the
Contractor shall perform the Consulting Services personally and without
sub-contracting any of them.
-4-
11. GENERAL:
(a) The parties hereto covenant and agree to execute such instruments or
other documents and to take such actions as they may deem necessary or
desirable to give full effect to the terms and conditions of this
Agreement.
(b) The parties acknowledge that they have been afforded the opportunity
to obtain independent legal advice with respect to this Agreement and
they each confirm that they are acting of their own free will and not
under duress nor undue influence.
(c) This Agreement shall be interpreted and construed in accordance with
the laws of the Province of Ontario, to which jurisdiction the parties
attorn notwithstanding their current domicile or domicile in the
future.
(d) This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, administrators,
legal personal representatives, successors and assigns.
(e) If any provision of this Agreement is held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the
remaining provisions of this Agreement shall not in any way be
affected nor impaired but shall be enforced in accordance with their
terms.
(f) Except for those provisions in the Contractor's executive employment
agreement with Cott that continue notwithstanding following the
termination of such executive employment agreement (in particular,
Article I, Article VII, Article VIII, Article IX and Article X
thereof), which provisions shall continue in accordance with their
terms, this Agreement represents the entire agreement between the
parties with respect to the subject matter hereof, namely the terms
and conditions of the provision of independent contract/consulting
services by the Contractor to the Corporation, and cancels and
supersedes any prior understandings and agreements between the parties
with respect thereto. There are no other promises, representations nor
inducements upon which the parties rely in entering into this
Agreement other than as expressly set forth herein.
(g) Any notice to be made or given in connection with this Agreement shall
be made or given in writing and may be made by personal delivery or
registered mail addressed to the recipient as follows:
To the Contractor:
Mark Benadiba
25 Parkwood Avenue
Toronto, ON M4V 1A7
-5-
To the Corporation:
Cott Corporation
207 Queen's Quay West
Suite 340
Toronto, ON M5J 1A7
Attention: Chair
or such other address or individual as may be designated by notice by
either party to the other. Any notice made or given by personal
delivery shall be conclusively deemed to have been given on the day of
actual delivery and if made or given by registered mail, on the third
day, other than a Saturday, Sunday or statutory holiday in Ontario,
following the deposit in the mail.
(h) Nothing in this Agreement shall restrict Cott from retaining other
independent contractors, consultants or employees to perform the same
services or similar services as provided by the Contractor.
(i) The parties represent and warrant to each other that the recitals set
out above are true.
IN WITNESS WHEREOF, the parties have executed this Agreement under seal as
of the day and year first above written.
COTT CORPORATION
Per: /s/ Colin D. Walker
-----------------------------------
Name: Colin D. Walker
Title: SVP
Per: /s/ John K. Sheppard
-----------------------------------
Name: John K. Sheppard
Title: President & CEO
/s/ J. Pacheco ) /s/ Mark Benadiba l/s
- -------------------------------------) ----------------------------------------
Witness ) MARK BENADIBA
EXHIBIT 10.2
APPENDIX 1
DESCRIPTION OF CONSULTING SERVICES
The consulting services shall include:
- - meetings with Cott management, customers and suppliers;
- - reasonable notice (at least five business days)of meetings to be provided
by Cott to the Contractor;
- - staff and team meetings
- - strategy and planning meetings
- - other support to be determined