EXHIBIT 10.3
WITHOUT PREJUDICE
PRIVATE AND CONFIDENTIAL- HAND DELIVERED
Thursday July 27th, 2006
Colin Walker
c/o Cott Canada
Dear Colin,
This letter confirms our discussion that your employment with Cott is hereby
terminated without cause effective August 1, 2006.
Cart appreciates your contribution to the business over the years and have
summarised the severance arrangements which are detailed in your Offer of
Employment which was effective as of the 20th August, 1998 (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
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 target bonus. This is equal to 1,468,000.00 (One
Million, four hundred and sixty eight thousand Dollars).
4. BENEFITS
You will continue to receive all of the following benefits (or Cott shall
reimburse you for all expenses incurred by you to replace such benefits) for a
24 month period as per your current participation: all health (excluding, for
greater certainty, long and short term disability coverage and out of country
benefits) and dental benefits, life insurance (excluding executive supplemental
life and disability insurance), annual health spending account, executive
medical, dependant life insurance and accidental death and dismemberment
insurance.
In addition, you shall receive a lump sum payment within ten (10) business days
following the Termination Date equal to: (i) $32,727 (thirty two thousand, seven
hundred and twenty seven Dollars) (less applicable withholdings and deductions)
on account of and in lieu of participation in Cott's group RRSP/DPSP and,
employee share purchase plan for a 24 month period; and (ii) $12,367 (twelve
thousand, three hundred and thirty seven Dollars) (grossed-up for taxes) on
account of and in lieu of executive supplemental life and disability insurance
premiums for a 24 month period
Colin Walker
July 27, 2006
Page 2
5. OPTIONS AND EISPP SHARES
(a) 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 balances of
the stock options that are not vested automatically expire upon the
Termination Date.
(b) The Human Resources and Compensation Committee has confirmed that the
vesting of unvested shares (2909) in the Executive Investment Share
Purchase Plan registered in your name shall be accelerated.
6. 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 not
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 Sher Zaman by no later
than your last date of employment.
7. NO OTHER PAYMENT
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.
8. 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 "1" 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.
Notwithstanding anything in the Release to the contrary, any rights to
indemnification that you have or had as a director, officer and/or employee of
Cott (and all indirect and direct affiliates, subsidiaries and associated
companies) in respect of any acts or commissions by you in such capacity will
continue in accordance with the terms of such indemnification and, for greater
certainty, nothing in the Release shall in any way detract or derogate from such
indemnification rights.
9. 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, Non-Solicitation, and Non-Competition
covenants provided in Article 4 of the covenants schedule in your
Colin Walker
July 27, 2006
Page 3
Employment Agreement, which in the case of the Confidentiality
covenant continues forever, and in the case of the Non-Solicitation
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. 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 will 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.
10. 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) Severabilitv: 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.
(d) Currencv: 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, unless otherwise expressly stated,
will be less applicable statutory withholdings and deductions.
Colin Walker
July 27, 2006
Page 4
Colin if you have any questions please feel free to contact me. I am also
attaching a copy of the Offer of Employment dated 20th day August, 1998.
Yours very truly,
Brent D. Willis
President and Chief Executive Officer
/s/ Mark Halperin
- -------------------------------------
Mark Halperin
Chief Legal &
Corporate Development Officer
I have authority to bind the Corporation
Attachment
Acknowledged, Agreed and Accepted this 8th day of August, 2006
/s/ Colin Walker
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Colin Walker
SCHEDULE "1"
RESIGNATION NOTICE
TO: COTT CORPORATION
AND TO: ALL DIRECT AND INDIRECT AFFILIATES, SUBSIDIARIES AND ASSOCIATED
CORPORATION THEREOF
AND TO: ALL DIRECTORS THEREOF
I COLIN WALKER 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/ Colin Walker
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Colin Walker
SCHEDULE "2"
RELEASE
FROM: COLIN WALKER ("WALKER")
TO: COTT CORPORATION ("COTT"), ITS DIRECT AND INDIRECT AFFILIATES, ASSOCIATES,
SUBSIDIARIES, PARENTS AND RELATED ORGANIZATIONS AND ALL OF THEIR RESPECTIVE
PAST AND PRESENT SHAREHOLDERS, PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES,
CONTRACTORS, CONSULTANTS, AGENTS, REPRESENTATIVES, TRUSTEES, ADMINISTRATORS
AND ATTORNEYS (ALL COLLECTIVELY REFERRED TO AS "RELEASEES")
1. In consideration of the terms as set out in the letter from Cott to
Walker dated July 27, 2006 (the "Agreement"), the receipt and
sufficiency of which consideration are hereby acknowledged, and except
for the obligations owed to Walker and referred to in the Agreement,
Walker hereby remises, releases and forever discharges Cott and the
other Releasees of and from all manner of actions, causes of action,
suits, debts, dues, accounts, bonds, contracts, liens, 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 Walker'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 Walker may have under any United States, Canada
or other law, statute 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 all wages, vacation pay,
termination and severance pay under the Emplqymet1t Standards Act,
2000.
2. Walker confirms that the Agreement has been entered into by the
parties for the purposes of fully and finally settling and
compromising all possible claims that Walker might have against the
Releasees and, therefore, in this respect, Walker 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 Occupational
Health & Safety 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
Walker's employment or other engagement with Cott. In the event that
Walker 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.
Walker confirms that he has no right to re-instatement, re-call or
re-employment with any of the Releasees, and Walker 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. Walker 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), Walker 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. Walker 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. Walker further confirms that no
other promises or representations of any kind have been made to Walker
to cause him to sign this Release.
7. Walker acknowledges that this Release, the settlement of any dispute
between Walker and Cott, or the payment of any monies to Walker, shall
not constitute an admission of liability on the part of Cott, which
liability is denied.
8. Walker 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. Walker 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 8th day of August, 2006
"[Signature illegible]" /s/ Colin Walker
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Witness Colin Walker