EXHIBIT 10.1
WITHOUT PREJUDICE
Private and Confidential- Hand Delivered
Thursday July 27th, 2006
Mark Benadiba
c/o Cott Canada
Dear Mark,
This letter confirms our discussion that your employment with Cott Corporation
("Cott") is hereby terminated without cause effective August 1, 2006.
Cott appreciates your 'contribution to the business over the years and has.
summarised the severance arrangements which are detailed in your Executive
Employment Agreement which was effective as of the 28th day of September, 2005
(the "EMPLOYMENT AGREEMENT").
1. DATE OF TERMINATION
The effective date of termination will be August 1,2006 (the "TERMINATION
DATE").
2. ACCRUED SALARY AND VACATION
You will be paid your salary, car allowance and accrued vacation to the
Termination Date. These payments Will be less applicable statutory withholdings
and deductions and paid in a lump sum payment during the next pay period
immediately following the Termination Date.
3. SEVERANCE
a) Severance - we have agreed to pay you a lump sum payment within ten (10)
business days following the Termination Date equal to two (2) times your
base salary, car allowance and bonus. This is equal to $2,190,000.00 (Two
Million, One Hundred and Ninety Thousand Dollars)
(Per Year-Car Allowance $20,000, Base Salary $500,000, Bonus at 100%
$575,000)
b) Pro-Rated Bonus - You shall also receive a pro-rated bonus for the period
up to Termination Date based on the achievement of 150% of the annual bonus
incentive target to such date (i.e. 7/12ths of 150% of $575,000 =
$503,125), which will be paid within ten (10) business days following the
Termination Date.
4. BENEFITS
You will continue to receive all of the following benefits for a 24 month period
as per your current participation: all health and dental benefits, life
insurance (including dependent life insurance and accidental death and
dismemberment insurance), short term disability, annual health spending account
and annual executive medical assessment costs.
Mark Benadiba.
July 27, 2006
Page 2
In addition, you shall receive a lump sum payment within ten (10) business day
following the Termination Date equal to $16,497.48 on account of and in lieu of
participation in the executive disability top up insurance program. Cott shall
also agree to reimburse you for your car insurance on your Mercedes Benz
automobile for 24 months following the Termination Date in accordance with the
terms of insurance in effect on the Termination Date.
5. OPTIONS
You will have sixty (60) days from the Termination Date to exercise any of your
currently vested stock options in accordance with the terms of Cott
Corporation's Common Share Option Plan. The balance of the stock options that
are not vested automatically expire upon the Termination Date.
6. EXECUTIVE INVESTMENT SHARE PURCHASE PLAN
The Human Resources and Compensation Committee has confirmed that the vesting of
the 'unvested shares (4,359) in the Executive Investment Share Purchase Plan
registered in your name be accelerated.
7. RETURN OF PROPERTY
It shall be a condition of this offer that you shall immediately return to Cott
all company property in your possession, power or control, including, but hot
limited to: computers, passes, credit cards, manuals, keys and proprietary
information and all records or files, pertaining to the affairs of the Company,
stored in any form whatsoever; (including. any electronic copies) together with
any copies or transcriptions thereof, in whole or part to Sandra Sterman by no
later than your last date of employment.
8. NO OTHER PAYMENTS
The payments, benefits and other entitlements set out in this letter constitute
your complete entitlement and Cott's complete obligations whatsoever, including
with respect to the cessation of your employment, whether at common law, statute
or contract. For greater certainty, we confirm. that you are not entitled to any
further payment (including any bonus payments), benefits; perquisites,
allowances or entitlements earned or owing to you from Cott pursuant to any
employment or any other agreement, whether written or oral, whatsoever, all
having ceased on the Termination Date without further obligation from Cott. All
amounts paid or benefits provided to you pursuant to this letter shall be deemed
to include all amounts owing pursuant to the Employment Standards Act. 2000, and
such payments and benefits represent a greater right or benefit than that
required under the Employment Standards Act, 2000.
9. RESIGNATION & RELEASE
You will resign as an officer and director of Cott (and all direct and indirect
affiliates, subsidiaries and associated companies) with effect as of the
Termination Date. In this respect, you agree to execute and deliver the
Resignation Notice attached hereto as Schedule "l" and such further
documentation as may be required by Cott, in its' sale discretion, in order to
effect this resignation. You agree to sign the Release in the form attached as
Schedule "2" to this letter.
Mark Benadiba
July 27, 2006
Page 3
10. YOUR CONTINUING OBLIGATIONS
a) You will continue to abide by all of the applicable provisions of your
Employment Agreement, as amended which are intended to continue following
the cessation of your employment, including but not limited to the
Confidentiality (Section 7.1), Non-Solicitation, and Non-Competition
(Article IX) covenants and, which in the case of the Confidentiality
covenant continues forever, and in the case of the Non-So1icitation and
Non-Competition covenants, will apply for a period of twenty-four (24)
months from the Termination Date. You agree that in the event of a breach
of any these covenants, Cott will be entitled to, in addition to any of the
remedies set out in the Employment Agreement for the breach of these
covenants, discontinue any and all payments, benefits, and other
entitlements as set out in this letter, and you will forfeit any and all
claims; actions, demands, or payments whatsoever.
b) You will agree to cooperate reasonably with Cott, and its legal advisors,
in connection with: (i) any business matters in which you were involved; or
(ii) any existing or potential claims, investigations, administrative
proceedings, lawsuits and other legal and business matters which arose
during your employment or involving Cott; (iii) effecting compliance with
respect to any regulatory requirements; and (iv) completing any further
documents required to give effect to the terms set out in this letter with
respect to which you have knowledge of the underlying facts. Cott shall pay
you a consulting fee equal to $256.00 per hour, plus applicable GST, for
the services provided to Cott at its request hereunder. In addition, you
will not voluntarily aid, assist or cooperate with any claimants or
plaintiffs or their attorneys or agents in any claims or lawsuits commenced
in the future against Cott, provided, however, that nothing in this letter
wilt be construed to prevent you from testifying at an administrative
hearing, a deposition/discovery, or in court in response to a lawful
subpoena in any litigation or proceedings involving Cott.
11. GENERAL
a) Entire Agreement: The agreement confirmed by this letter constitutes the
entire agreement between you and Cott with reference to any of the matters
herein provided or with reference to your employment or office with Cott,
or the cessation thereof. All promises, representations, collateral
agreements, offers and understandings not expressly incorporated in this
letter agreement are hereby superseded and have no further effect.
b) Severability: The provisions of this letter agreement shall be deemed
severable and the invalidity or unenforceability of any provision set out
herein shall not affect the validity or enforceability of the other
provisions hereof, all of which shall continue in accordance with their
terms.
c) Full Understanding: By signing this letter, you confirm that: (i) you have
had an adequate opportunity to read and consider the terms set out herein,
including the Release attached, and that you fully understand them and
their consequences; (ii) you have been advised, through this paragraph, to
consult with legal counsel and have obtained such legal or other advice as
you consider advisable with respect to this letter agreement, including
attachments; and (iii) you are signing this letter voluntarily, without
coercion, and without reliance on any representation, express or implied,
by Cott, or by any director, trustee, officer, shareholder, employee or
other representative of Cott.
Mark Benadiba
July 27, 2006
Page 4
d) Currency: All dollar amounts set forth or referred to in this letter refer
to Canadian currency.
e) Governing Law: The agreement confirmed by this letter shall be governed by
the laws of the Province of Ontario, Canada.
f) Payment: All payments made to you will be less applicable statutory
withholdings and deductions.
Mark, if you have any questions please feel tree to contact me. I am also
attaching a copy of the Executive Employment Agreement dated 28th day September,
2005.
Yours very truly,
/s/ Brent D. Willis
- -------------------------------------
Brent D. Willis
President and Chief Executive Officer
Attachment
Acknowledged, Agreed and Accepted this 2nd day of August, 2006
/s/ Mark Benadiba
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Mark Benadiba
SCHEDULE "1"
RESIGNATION NOTICE
TO: COTT CORPORATION
AND TO: ALL DIRECT AND INDIRECT AFF1LIATES, SUBSIDIARIES AND ASSOCIATED
CORPORATIONS THEREOF
AND TO: ALL DIRECTORS THEREOF
I MARK BENADIBA confirm my resignation as director and from all offices held by
me of COTT CORPORATION, including all direct and indirect affiliates,
subsidiaries, and associated corporations, with effect as of August 1,. 2006.
/s/ Mark Benadiba
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MARK BENADIBA
SCHEDULE "2"
RELEASE
FROM: MARK BENADIBA ("BENADIBA")
TO: COTT CORPORATION ("COTT"), ITS DIRECT ,AND INDIRECT RESPECTIVE
AFFILIATES, ASSOCIATES, SUBSIDIARIES, PARENTS AND RELATED ORGANIZATIONS
AND ALL OF THEIR RESPECTIVE PAST AND PRESENT SHAREHOLDERS, PARTNERS,
DIRECTORS, OFFICERS, EMPLOYEES, CONTACTORS, CONSULTANTS, AGENTS,
REPRESENTATIVES; TRUSTEES, ADMINISTRATORS, ATTORNEYS AND INSURERS (ALL
COLLECTIVELY REFERRED TO AS "RELEASEES")
1. In consideration of the terms as set out in the letter from Cott to
Benadiba dated July 27, 2006 (the "Agreement"), the receipt and sufficiency
of which consideration are hereby acknowledged, and except for the
obligations owed to Benadiba, and referred to in the Agreement, Benadiba
hereby remises, releases and forever discharges Cott and the other
Re1easees of and from all manner of actions, causes of action, suits,
debts, dues, accounts, bonds, contacts, 1iens, claims and demands
whatsoever which against the Releasees he now has, ever had or hereafter
can, shall or may have for or by reason of any cause, matter or thing
whatsoever existing to the present time, ,and particularly and without
limiting the generality of the foregoing, of and from all claims and
demands of every nature and kind in any way related to or arising from
Benadiba's employment or other engagement with Cott or the termination of
such employment, engagement or other agreements, including all damages,
salary, remuneration, commission, vacation pay, overtime pay, termination
pay, severance pay, notice of termination, profit-sharing, stock options or
other equity, bonuses, proceeds of any insurance or disability plans,
pension or retirement benefits or any other fringe benefit or perquisite of
any kind whatsoever and including any claims Benadiba may have; uncle!: any
United States, Canada, or other statute, law or ordinance; any contract or
agreement (except the Agreement); and any common law principle. The
payments, 'benefits, and other entitlements referred to in the Agreement
are deemed to satisfy all requirements or money owing under all applicable
laws including without limitation, any and a1l wages, vacation pay,
termination and severance pay under the Employment Standards Act, 2000.
2. Benadiba confirms that the Agreement has been entered into by the parties
for the purposes off fully and finally settling and compromising all
possible claims that Benadiba might have against the Releasees and,
therefore, in this respect, Benadiba covenants and agrees not to file any
complaint or initiate any proceeding under the Employment Standards Act,
2000, under 'the. Ontario Human Rights Code, under the, Workplace Safety
and Insurance Act, under the Labour Relations Act, under the Pay Equity
Act, or pursuant to any other applicable law or legislation, including the
statutes and laws set forth and/or referenced in the preceding paragraph,
in any jurisdiction governing or related to Benadiba 's employment or other
engagement with Cott. In the event that Benadiba hereafter makes any claim
or demand or commences or threatens to commence any action, claim or
proceeding or to make any complaint against Cott in this respect, this
Release may be raised as an estoppel and complete bar to any such action,
claim or proceeding. Benadiba confirms that he has no right to
reinstatement, re-call or re-employment with any of the Releasees, and
Benadiba waives and releases all rights he had or may have had in
this regard. This paragraph shall not release any rights that may not
legally be waived.
3. Benadiba further agrees not to make or assist in the commencement of any
claims (expressly including any cross-claim, counterclaim, third party
action or application) against any other person or corporation who might
claim contribution or indemnity against the persons or corporations
discharged by this Release.
4. With the exception of disclosure to immediate family or to his legal or
professional advisors (but provided any such person agrees not to disclose
such information to any other person), Benadiba agrees that the terms and
contents of this Release, the consideration included in the Agreement, the
contents of the negotiations and discussions resulting .in this Release,
and any dispute resolved by this Release, shall all remain privileged and
confidential and shall not be disclosed except to the extent required by
law or as otherwise agreed to in writing by Cott.
5. This Release shall be binding upon his heirs, executors, administrators,
successors and assigns and shall enure to the benefit of Cott and to the
benefit of all of the Cott's successors- and assigns.
6. Benadiba acknowledges that he has been advised to and has in fact obtained
Independent legal advice and that the only consideration for this Release
is as referred to above. Benadiba further confirms that no other promises
or representations of any kind have been made to Benadiba to cause him to
sign this Release.
7. Benadiba acknowledges that this Release, the settlement of any dispute
between Benadiba and Cott, or the payment of any monies to Benadiba, shall
not constitute an admission of liability on the part of Cott, which
liability is denied.
8. Benadiba agrees that he alone shall be responsible for all tax liability
resulting from his receipt of the payments referred to in the Agreement,
except to the extent that Cott has withheld funds for remittance to
statutory authorities. Benadiba agrees to indemnify and save Cott harmless
from any and all amounts payable or incurred by Cott (save and except any
penalties and interest that are attributable to Cott's not having deducted
sufficient funds by its own direction) if it is subsequently determined
that any greater amount should have been withheld in respect of income tax
or any other statutory withholding.
SIGNED, SEALED AND DELIVERED THIS 2ND DAY OF AUGUST, 2006
/s/ Ines Marra /s/ Mark Benadiba
- ------------------------------------- ----------------------------------------
WITNESS MARK BENADIBA