EXHIBIT 10.3
COTT CORPORATION
PERFORMANCE SHARE UNIT PLAN
ARTICLE I
PURPOSE AND ESTABLISHMENT OF PLAN
1.1 PURPOSE.
The Company hereby establishes a Plan for the purposes of fostering and
promoting the long-term financial success of the Company and its Subsidiaries
and materially increasing the value of the Company and/or its Subsidiaries by
(i) encouraging the long-term commitment of key Employees, (ii) motivating
performance of key Employees by means of long-term performance related
incentives, (iii) attracting and retaining outstanding key Employees by
providing incentive compensation opportunities, and (iv) enabling participation
by key Employees in the long-term growth and financial success of the Company.
1.2 EFFECTIVE DATE.
The Plan shall become effective upon its approval by a majority of the
Company's shareholders at the Company's next annual meeting held after the
approval of the Plan by the Board.
ARTICLE II
DEFINITIONS
In this Plan, the following terms shall have the following meanings:
(a) "AWARD" means any award of the right to earn Performance Share
Units granted pursuant to the Plan;
(b) "AWARD AGREEMENT" means a written agreement between a
Participant and the Company which sets forth the terms of the
grant of an Award;
(c) "AWARD AMOUNT" means the value (stated in terms of Canadian
dollars) of the Award granted under the Plan to a Participant
in respect of a Performance Cycle, assuming the target
Performance Goals are attained for such Performance Cycle;
(d) "BOARD" means the Board of Directors of the Company;
(e) "CAUSE" means any action by the Participant or inaction by the
Participant that constitutes: (i) a breach of a written
employment agreement by that Participant; or (ii) misconduct,
dishonesty, disloyalty, disobedience or action that might
reasonably injure the Company or any of its Subsidiaries or
their respective business interests or reputation;
(f) "CHANGE OF CONTROL" means: (i) a consolidation, merger or
amalgamation of the Company with or into any other corporation
whereby the voting shareholders of the Company immediately
prior to such event receive less than 50% of the voting shares
of the consolidated, merged or amalgamated corporation; (ii) a
sale by the Company of all or substantially all of the
Company's undertakings and assets; or (iii) a proposal by or
with respect to the Company being made in connection with a
liquidation, dissolution or winding-up of the Company;
(g) "COMMITTEE" means the Human Resources and Compensation
Committee of the Board;
(h) "COMMON SHARES" means the common shares in the capital of the
Company;
(i) "COMPANY" means Cott Corporation, a corporation amalgamated
under the laws of Canada;
(j) "EMPLOYEE" means a full-time, part-time or contract employee
of an Employer;
(k) "EMPLOYER" means, in respect of a Participant, the Company or
the Subsidiary of the Company employing such Participant;
(l) "FAIR MARKET VALUE" means, with respect to a Common Share on
any determination date, the closing price of the Common Shares
on the Toronto Stock Exchange on the last trading day on which
Common Shares traded prior to such date; provided that if no
Common Shares traded in the five trading days prior to the
determination date, the Committee shall determine Fair Market
Value on a reasonable basis using a method that complies with
section 409A of the United States Internal Revenue Code of
1986, as amended, and guidance issued thereunder;
(m) "FISCAL YEAR" means the 12-month period beginning the first
Sunday following the immediately preceding Saturday closest to
December 31st and ending on the Fiscal Year End;
(n) "FISCAL YEAR END" means, with respect to each Fiscal Year, the
Saturday closest to December 31st of such Fiscal Year;
(o) "NORMAL RETIREMENT" means retirement from office or employment
with an Employer (at the election of the Employee and as
agreed to by the Employer);
(p) "PARTICIPANT" means any Employee(s) approved by the Committee
to participate in the Plan;
(q) "PERFORMANCE CYCLE" means a period of time determined at the
date of grant by the Committee, in its discretion, (not to be
longer than three Fiscal Years, the first year of which shall
be the Fiscal Year in which the award is granted and the last
day of which shall be the last day of a Fiscal Year) over
which performance is
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measured for the purpose of determining a Participant's
eligibility to earn, and the payment value of, any Performance
Share Units;
(r) "PERFORMANCE GOALS" shall mean the criteria and objectives
determined by the Committee in its discretion pursuant to the
Plan, which shall be satisfied or met during the applicable
Performance Cycle as a condition precedent to a Participant
earning Performance Share Units under an Award. Such criteria
and objectives may include earnings before interest, taxes,
depreciation and amortization; operating income; net operating
income after tax; pre-tax or after-tax income; cash flow; net
earnings; earnings per share; share price performance; return
on assets; return on equity; return on invested capital;
tangible net asset growth; any combination of the foregoing;
or any other financial criteria and objectives determined by
the Committee in its discretion;
(s) "PERFORMANCE SHARE UNIT" means a notional unit representing a
contingent right to receive Common Shares following the
Vesting Date based upon the achievement of certain Performance
Goals during a specified Performance Cycle;
(t) "PERMANENT DISABILITY" means the complete and permanent
incapacity of a Participant, as determined by a licensed
medical practitioner approved by the Committee, due to a
medically determinable physical or mental impairment which
prevents such Participant from performing substantially all of
the essential duties of his or her office or employment;
(u) "PLAN" means the Cott Corporation Performance Share Unit Plan,
as amended from time to time;
(v) "PSU FUND" means the trust fund or funds established under the
PSU Trust Agreement, which for purposes of the Plan
constitutes an "employee benefit plan" for purposes of the Tax
Act;
(w) "PSU TRUST AGREEMENT" means the agreement or agreements by and
among the Company, the Trustee, and the Agent (as defined
therein) to carry out the purposes of the Plan in respect of
Common Shares purchased on account of vested Performance Share
Units and any income attributable thereto in accordance with
the terms of the Plan;
(x) "SUBSIDIARY" has the meaning assigned thereto in the
Securities Act (Ontario) and "SUBSIDIARIES" shall have
a corresponding meaning;
(y) "SUPERIOR GOALS" has the meaning attributed to it in Section
4.2;
(z) "TARGET GOALS" has the meaning attributed to it in Section
4.2;
(aa) "TARGET PSU NUMBER" has the meaning attributed to it in
Section 4.3(b);
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(bb) "TAX ACT" means the Income Tax Act (Canada) and all
regulations thereunder, as amended or restated from time to
time. Any reference in the Agreement to a provision of the Tax
Act includes any successor provision thereto;
(cc) "TERMINATED PARTICIPANT" means a Participant who has incurred
a Termination Date and shall include, where context requires,
the personal representative(s) of a Participant;
(dd) "TERMINATION DATE" means the Participant's last day of active
service with his or her Employer (determined without regard to
any notice of termination owing pursuant to statute,
regulation, agreement or common law);
(ee) "THRESHOLD GOALS" has the meaning attributed to it in Section
4.2;
(ff) "TRUSTEE" means MRS Trust or its successor trustee under the
PSU Trust Agreement;
(gg) "UK TAX LIABILITY" has the meaning attributed to it in Section
8.7(b); and
(hh) "VESTING DATE" means, with respect to any Performance Share
Units earned in a Performance Cycle, the last day of the
Performance Cycle, except as otherwise provided in Section
5.3.
ARTICLE III
ADMINISTRATION OF THE PLAN
3.1 ADMINISTRATION OF THE PLAN.
The Plan shall be administered by the Committee. The Committee shall
have the power and authority to:
(a) adopt rules and regulations for implementing the Plan;
(b) other than with respect to the Chief Executive Officer of the
Company, determine the eligibility of persons to participate
in the Plan, when Awards shall be granted to eligible persons
and the amounts, terms and conditions of such Awards,
including the Award Amount (subject to the maximum Award
Amount set forth in Section 4.1(b));
(c) interpret and construe the provisions of the Plan, and any
such interpretation and construction of the Plan by the
Committee shall be final in all respects and, in particular,
shall not be subject to any appeals whatsoever;
(d) subject to statutory and regulatory requirements, make
exceptions to the Plan in circumstances which it determines to
be exceptional;
(e) delegate such administrative duties and powers as it may see
fit with respect to this Plan (excluding, for greater
certainty, the power to grant Awards) to any
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officers of an Employer (and any such duties performed or
powers exercised by any such officers shall be deemed to have
been performed or exercised, as the case may be, by the
Committee), such delegation to be evidenced by a written
resolution adopted by the Committee; and
(f) take such other steps as it determines to be necessary or
desirable to give effect to the Plan.
Any decision, approval or determination made by a person or group of persons
delegated the ability to make such decision, approval or determination pursuant
to Section 3.1(e) above shall be deemed to be a decision, approval or
determination, as the case may be, of the Committee; provided, that two officers
of the Company, one of whom must be the Chief Executive Officer, the Chief
Financial Officer, the Senior Vice President, Corporate Resources, or the
Secretary, are hereby authorized to sign and execute all instruments and
documents and do all things necessary or desirable for carrying out the
provisions of the Plan.
ARTICLE IV
OPERATION OF PLAN
4.1 ELIGIBILITY AND PARTICIPATION.
(a) All Employees are eligible for consideration to participate in
the Plan. Participants in the Plan shall be selected from time
to time by the Committee, in its discretion, from among those
Employees who, in the opinion of the Committee, are key
Employees in a position to contribute materially to the
continued growth, development and long-term financial success
of the Company and/or its Subsidiaries. Except with respect to
Awards granted to the Chief Executive Officer of the Company,
the Committee, in its discretion, shall determine the amounts,
terms and conditions of each Award granted hereunder,
including the Award Amount (subject to the maximum Award
Amount set forth in Section 4.1(b) below). Any grant of an
Award to the Chief Executive Officer of the Company and the
amounts, terms and conditions of such Award, including the
Award Amount (subject to the maximum Award Amount set forth
below), shall require the prior approval of the independent
(as understood within the rules of the New York Stock Exchange
and applicable Canadian securities laws) members of the Board,
upon the recommendation of the Committee.
(b) The maximum Award Amount that may be granted to an individual
Participant in a Fiscal Year shall not exceed 50% of the
aggregate Award Amounts granted to all Participants under this
Plan in such Fiscal Year.
(c) Subject to the foregoing, Awards may be granted by the
Committee at any time and from time to time to new
Participants, or to already-participating Participants, or to
a greater or lesser number of Participants, and may include or
exclude previous Participants, as the Committee shall
determine in its discretion. The grant of an Award shall be
evidenced by an Award Agreement setting forth such terms,
provisions, limitations and performance criteria (including
Performance
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Goals for the applicable Performance Cycle) as are approved by
the Committee, but not inconsistent with the Plan. The Award
Agreement shall also include the number of Performance Share
Units eligible to be earned by a Participant if the Threshold
Goals, Target Goals or Superior Goals are attained, as
determined pursuant to Section 4.3(b).
(d) Except as required by this Plan, Awards and the Award
Agreements evidencing the same need not contain similar
provisions. The Committee's determinations under the Plan
(including determinations of which Employees are to receive
Awards, the form, amount and timing of such Awards, the terms
and provisions of such Awards and the Award Agreements
evidencing same) need not be uniform and may be made by the
Committee selectively among Participants who receive, or are
eligible to receive, Awards under the Plan.
4.2 PERFORMANCE GOALS.
At the beginning of each Performance Cycle (and not later than (a) in
the case of a Performance Cycle of 12 months or more, the 89th day after the
beginning of the Performance Cycle, and (b) in the case of a Performance Cycle
of less than 12 months, the date by which 25% of the Performance Cycle has
elapsed), the Committee shall, in its discretion, (i) establish for each
Performance Cycle the specific Performance Goals as the Committee believes are
relevant to the Company's overall business objectives; (ii) determine the
threshold Performance Goals (the "THRESHOLD GOALS"), target Performance Goals
(the "TARGET GOALS") and superior Performance Goals (the "SUPERIOR GOALS") to be
attained in order to earn Performance Share Units for such Performance Cycle;
and (iii) instruct senior Human Resources management to notify each Participant
in writing of the established Threshold Goals, Target Goals and Superior Goals
for such Performance Cycle.
4.3 ATTAINMENT OF PERFORMANCE GOALS.
(a) Upon completion of the Performance Cycle, the Committee shall
certify the level of the Performance Goals attained and the
number of Performance Share Units earned by Participants as a
result thereof. The basis for earning Performance Share Units
for a given Performance Cycle shall be as set forth in Section
4.3(b). Each Participant's Performance Share Units will be
subject to vesting as described in Section 5.1.
(b) Attainment of the Target Goals for a Performance Cycle shall
result in a Participant earning a number of Performance Share
Units equal to the number obtained by dividing such
Participant's Award Amount in respect of such Performance
Cycle by the Fair Market Value on the date of grant of such
Participant's Award (such number, the "TARGET PSU NUMBER").
Failure to attain the Threshold Goals for a Performance Cycle
shall result in the failure to earn any of the Performance
Share Units eligible to be earned under the Award granted for
such Performance Cycle, and such Award shall terminate in full
and all contingent rights thereunder shall cease. Attainment
between the Threshold Goals and Target Goals for a Performance
Cycle shall result in the earning by the
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Participant of a portion of such Participant's Target PSU
Number of Performance Share Units, determined by application
of a pre-determined mathematical formula which shall be
determined by the Committee in its discretion and set out in
the Award Agreement governing such Award.
(c) In addition to the above targets, if performance in a
Performance Cycle exceeds the Target Goals, a Participant will
earn additional Performance Share Units over and above such
Participant's Target PSU Number of Performance Share Units for
such Performance Cycle, as determined by application of a
pre-determined mathematical formula which shall be determined
by the Committee in its discretion and set out in the Award
Agreement governing such Award.
ARTICLE V
VESTING
5.1 VESTING GENERALLY.
If a Participant earns Performance Share Units for a Performance Cycle,
such Performance Share Units shall vest in full on the applicable Vesting Date;
provided, that except as provided in Section 5.2, no Performance Share Units
shall vest unless the Participant is an Employee as of the applicable Vesting
Date and has been continuously employed by an Employer since the date of grant
of the Award. Any Performance Share Units that do not vest in accordance with
the provisions of this Plan shall be forfeited, and all contingent rights of a
Participant thereunder shall cease.
5.2 TERMINATION OF EMPLOYMENT.
(a) In the event a Participant's employment with an Employer is
terminated for Cause (as determined by the Committee in its
discretion) or by the Participant voluntarily (other than upon
Normal Retirement), all of the Participant's unvested
Performance Share Units will be forfeited immediately.
(b) Except as provided in Section 5.3, in the event a
Participant's employment is terminated without Cause, all of
the Participant's unvested Performance Share Units shall be
forfeited immediately, unless the Committee in its discretion
waives the employment requirement under Section 5.1, in which
case the Committee shall determine, in its discretion, the
number of Performance Share Units to be deemed earned by such
Participant on each subsequent applicable Vesting Date, such
number not to exceed the pro rata number of Performance Share
Units that he or she would have earned on that Vesting Date
had he or she been continuously employed through such date, as
calculated by reference to the portion of the applicable
Performance Cycle during which the Participant was actually
employed.
(c) In the event of a Participant's death while in the employ of
an Employer, or if a Participant's employment with an Employer
is terminated due to Permanent Disability or Normal
Retirement, the employment requirements of Section 5.1
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shall not apply, in which case the number of Performance Share
Units to be deemed earned by such Participant on each
subsequent applicable Vesting Date shall equal the pro rata
number of Performance Share Units that he or she would have
earned on that Vesting Date had he or she been continuously
employed through such date, as calculated by reference to the
portion of the applicable Performance Cycle during which the
Participant was actually employed.
5.3 CHANGE OF CONTROL.
In the event of a Change of Control, the Committee may, in its
discretion, recommend to the Board whether to accelerate the vesting (without
regard to attainment of any Performance Goals) of all or a portion of the
unvested Performance Share Units of any Participant whose employment is
involuntarily terminated without Cause in connection with such Change of
Control. The Board may elect, in its sole and absolute discretion, to accelerate
the vesting of none, some or all of such Participants' unvested Performance
Share Units, and any such election shall be final in all respects and, in
particular, shall not be subject to any appeals whatsoever. The Vesting Date
with respect to any such unvested Performance Share Units shall be the date of
such termination of employment.
ARTICLE VI
PAYMENT OF PERFORMANCE SHARE UNITS
6.1 PAYMENT IN RESPECT OF PERFORMANCE SHARE UNITS.
(a) All Performance Share Units earned by a Participant that vest
in accordance with the terms of the Plan shall entitle such
Participant to receive an equivalent number of Common Shares.
(b) With respect to each Participant whose Performance Share Units
have vested hereunder, as soon as practicable following the
determination of the number of Performance Share Units earned
by and vested in a Participant, but in no event later than 50
days following the Vesting Date, the Company shall cause such
Participant's Employer to contribute to the Trustee an amount
sufficient to permit the Trustee to purchase that number of
Common Shares equal to the number of vested Performance Share
Units. As soon as practicable following the receipt of funds
from the applicable Employer under this Section 6.1(b) and
prior to the time specified in Section 6.1(c) below, the
Trustee shall use such funds to purchase Common Shares on the
New York Stock Exchange at the prevailing market price for
Common Shares as of the time and date of such purchases.
(c) Within 60 days of the Vesting Date, but in no event later than
March 15 of the calendar year following the calendar year in
which the Vesting Date occurs, the Common Shares purchased by
the Trustee hereunder shall be registered in the name of the
Trustee for the benefit of the respective Participant as
beneficial owner, or, in the event of death, a designated
beneficiary, and transferred to the Participant's account
under the PSU Fund, net of all applicable statutory
withholdings.
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(d) The Trustee, in its capacity as trustee of the PSU Fund, shall
make provision for the reporting and withholding of any
Canadian, U.S., UK or Mexican federal or national, provincial,
state or local taxes that may be required to be withheld prior
to such transfer and shall complete applicable tax withholding
and reporting and remit the amounts withheld to the relevant
Employer to pay to the appropriate taxing authorities. Until
distributed to the Participant, the Trustee, in its capacity
as trustee of the PSU Fund, shall hold all such Common Shares
in accordance with the terms of the PSU Trust Agreement.
6.2 WITHDRAWAL OF VESTED INTEREST.
A Participant may request, at any time and from time to time, by a
written notice to the Company in the form approved by the Committee, and subject
to Section 6.4, the delivery to him or her of the share certificates
representing all or a portion of the Common Shares held in the Participant's
account under the PSU Fund, net of any applicable statutory withholdings. The
Common Shares constituting such payment shall be delivered by the Trustee within
30 days following the delivery of the written notice.
6.3 PAYOUT OF VESTED INTEREST AT TERMINATION.
A Terminated Participant must deliver written direction, in the manner
prescribed by the Committee, to the Committee within ninety (90) days following
his or her Termination Date to request delivery to him or her of share
certificates evidencing all Common Shares to which he or she is entitled
hereunder. If a Terminated Participant fails to deliver such written direction
to the Committee within said ninety (90)-day period, the Committee, subject to
Section 6.4, shall instruct the Trustee to deliver to the Terminated Participant
the share certificates evidencing all of the Common Shares credited to the
Terminated Participant's account as of the Termination Date.
6.4 RESTRICTIONS ON VESTED SHARES.
Except as set forth in the Company's policies respecting the trading of
the Common Shares by Employees or as restricted by applicable law, Common Shares
that have been distributed to a Participant hereunder are not subject to any
restrictions concerning their sale or use.
6.5 NO PARTIAL SHARES.
Only certificates representing whole Common Shares shall be transferred
to a Participant's account under Section 6.1(c) or delivered under Sections 6.2
and 6.3. If a Participant is entitled to a fraction of a Common Share under
Section 6.1, such entitlement shall be satisfied by payment within the time
specified in Section 6.1(c) of the cash equivalent of such fraction, determined
by reference to the Fair Market Value of such Common Share on the Vesting Date.
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ARTICLE VII
DIVIDENDS AND OTHER RIGHTS
7.1 CASH EARNINGS.
Cash dividends or earnings, if any, received by the Trustee in respect
of Common Shares held in the PSU Fund shall be held by the Trustee for the
benefit of the Participant for whom such Common Shares are beneficially held.
Until distributed to the Participant, the Trustee shall hold such cash amounts
in accordance with the terms of the PSU Trust Agreement.
7.2 STOCK DIVIDENDS.
Stock dividends, if any, received by the Trustee in respect of Common
Shares held in the PSU Fund shall be held by the Trustee for the benefit of the
Participant for whom such Common Shares are beneficially held. Until distributed
to the Participant, the Trustee shall hold such stock dividends in accordance
with the terms of the PSU Trust Agreement.
7.3 VOTING RIGHTS.
Each Participant shall be entitled to receive notice of and attend all
meetings of the holders of Common Shares and the Trustee shall vote the rights
associated with any Common Shares as directed by the Participant for whom such
Common Shares are held in his or her account under the PSU Fund.
7.4 NOTIFICATION OF RIGHTS.
The Trustee shall promptly transmit to each Participant all notices of
conversion, redemption, tender, exchange, subscription or other rights or powers
that the Trustee receives from the Company relating to the Common Shares held in
the Participant's account under the PSU Fund. The Participants shall have no
ability to exercise any rights associated with unvested Performance Share Units.
ARTICLE VIII
GENERAL
8.1 ADJUSTMENTS.
(a) The aggregate number of Performance Share Units earned under
this Plan shall be proportionally adjusted for an increase or
decrease in the number of Common Shares due to a stock split
or share consolidation.
(b) The Committee shall have the discretion to make appropriate
adjustments to exclude the effect of extraordinary corporate
transactions, such as acquisitions, divestitures,
recapitalizations and reorganizations, and shall have the
discretion to not take into account extraordinary or
non-recurring accounting charges and items, insofar as they
may otherwise affect the results under the applicable
Performance Goals.
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8.2 NON-TRANSFERABILITY.
Performance Share Units may not be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated, other than by a Participant's
last will and testament or by the laws of descent and distribution. All rights
with respect to Performance Share Units earned by a Participant under the Plan
shall be exercisable during his lifetime only by such Participant. Upon any
attempt to transfer, assign, pledge, hypothecate or otherwise dispose of any
Performance Share Units contrary to the provisions of this Plan, or upon the
levy of any attachment or similar process upon the Performance Share Units or
upon a Participant's beneficial rights to such Performance Share Units, the
Performance Share Units and such rights shall, at the election of the Committee,
in its discretion, cease and terminate immediately.
8.3 BENEFICIARY DESIGNATION.
Each Participant under the Plan may, subject to compliance with all
applicable laws, name, from time to time, any beneficiary or beneficiaries (who
may be named contingently or successively) to whom any benefit under the Plan is
to be paid in the event of such Participant's death before such Participant
receives any or all of such benefit. Each designation will revoke all prior
designations by the same Participant, shall be in a form prescribed by the
Committee, and will be effective only when filed by the Participant in writing
with the Committee during his lifetime. In the absence of any such designation,
benefits remaining unpaid at the Participant's death shall be paid to his
estate.
8.4 COMPLIANCE WITH STATUTES AND REGULATIONS.
The granting of Awards and the purchase and delivery of Common Shares
by the Trustee under this Plan upon the vesting of Performance Share Units shall
be carried out in compliance with applicable law, including, without limitation,
the rules, regulations and by-laws of the Toronto Stock Exchange, the New York
Stock Exchange, the U.S. Securities Exchange Act of 1934, as amended, and the
rules and regulations (including Rule 10b-5) promulgated thereunder, and the
policies and regulations of applicable securities regulatory authorities. If the
Committee determines in its discretion that, in order to comply with any such
statutes or regulations, certain action is necessary or desirable as a condition
of or in connection with the granting of an Award or the purchase or delivery of
Common Shares under this Plan, no Award may be granted and no Common Shares may
be purchased or delivered unless that action shall have been completed in a
manner satisfactory to the Committee.
8.5 NO RIGHT TO EMPLOYMENT.
Nothing contained in this Plan or in any Award granted under this Plan
shall confer upon any person any rights to continued employment with an Employer
or interfere in any way with the rights of an Employer in connection with the
employment or termination of employment of any such person.
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8.6 PARTICIPATION.
No Employee shall have a right to be selected as a Participant or,
having been so selected, to be selected again as a Participant.
8.7 OBLIGATION TO WITHHOLD.
(a) If, for any reason whatsoever, an Employer becomes obligated
to withhold and/or remit to any applicable tax authority
(whether domestic or foreign) any amount in connection with
this Plan in respect of a Participant, then the Employer shall
provide written notice of such obligation to the Participant
and shall make the necessary arrangements, as acceptable to
the Employer, in connection with the amount that must be
withheld and/or remitted.
(b) If, for any reason whatsoever, an Employer becomes obligated
to make any tax payment or primary Class 1 national insurance
contribution in the United Kingdom in respect of the
acquisition of Common Shares by a Participant pursuant to this
Plan (the "UK TAX LIABILITY") or otherwise in relation to the
Common Shares so acquired then, by virtue of his or her
participation in the Plan, each Participant acknowledges that
the applicable Employer shall be entitled to recover all such
amounts from the Participant by deduction, withholding or by
any means whatsoever. For the avoidance of doubt, the Company
or another Employer (or an agent instructed by the Company or
such other Employer) shall be entitled to retain, out of the
aggregate number of Common Shares to which the Participant
would otherwise be entitled pursuant to the Plan, and sell as
agent for the Participant such number of Common Shares as in
the opinion of the Company or such other Employer will realise
an amount equivalent to the UK Tax Liability and to pay such
proceeds to the appropriate Employer to reimburse it for the
UK Tax Liability. The Company may also require a Participant
to enter into a taxation agreement contained within the Award
Agreement.
8.8 RIGHT TO AMEND AND TERMINATE.
Except as restricted by Section 8.9 and subject to applicable laws and
regulations of governmental authorities and applicable stock exchanges (i) the
Committee or the Board may amend any provisions of the Plan at any time, and
(ii) the Committee or the Board may terminate the Plan at any time, in either
case in their discretion. If the Plan is so terminated, no further Awards shall
be granted but the Awards then outstanding shall continue in full force and
effect in accordance with the provisions of this Plan.
8.9 RESTRICTIONS.
Notwithstanding Section 8.8, no such amendment or termination of the
Plan shall divest any Participant of his or her existing rights under the Plan
with respect to any Awards previously granted to such Participant without the
prior written consent of the Participant except as may be required to avoid
adverse tax consequences to any Participant, including but not limited to,
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modifications with respect to exemption from the requirements of section 409A of
the United States Internal Revenue Code of 1986, as amended, or compliance with
the requirements thereof.
8.10 GOVERNING LAW.
The Plan is established under the laws of the Province of Ontario and
the rights of all parties and the construction and effect of each and every
provision of this Plan shall be according to the laws of the Province of Ontario
and the laws of Canada applicable therein.
8.11 LANGUAGE.
The Company states its express wish that this Plan and all documents
related thereto be drafted in the English language only; la societe a par les
presentes exprime sa volonte expresse que ce regime, de meme que tous les
documents y afferents, soient rediges en anglais seulement.
8.12 SUBJECT TO APPROVAL.
The Plan is adopted subject to the approval, if required, of the
Toronto Stock Exchange, The New York Stock Exchange and the shareholders of the
Company and any other required regulatory or stock exchange approval. To the
extent a provision of the Plan requires regulatory approval which is not
received, such provision shall be severed from the remainder of the Plan until
the approval is received and the remainder of the Plan shall remain in effect.
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NOW THEREFORE, this Plan is hereby adopted as of the effective date
described in Section 1.2.
COTT CORPORATION
By: /s/ Mark Halperin
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Name: Mark Halperin
Title: Senior Vice President, General
Counsel & Secretary
By:
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Name:
Title:
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