EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of this 1st day of August, 2006
BETWEEN:
COTT CORPORATION, a corporation incorporated under the laws of Canada
(hereinafter referred to as the "Corporation")
OF THE FIRST PART
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WYNN WILLARD (hereinafter referred to as the "Executive")
OF THE SECOND PART
WHEREAS the Executive commenced employment with the Corporation on this 1st
day of August 2006 as President, International of the Corporation;
AND WHEREAS the Corporation and the Executive have agreed to enter into
this Employment Agreement to formalize in writing the terms and conditions
reached between them governing the Executive's employment;
NOW THEREFORE in consideration of the covenants and agreements herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties, the parties hereto
agree as follows:
ARTICLE 1 - COMMENCEMENT AND TERM
1.1 TERM. Subject to earlier termination in accordance with this Section
1.1 or Article 5 hereof, the term of the Executive's employment under this
Agreement commences on August 1, 2006 (the "Hire Date") and shall continue for
an indefinite term (the "Term") until one party gives notice to the other that
he or it wishes to terminate the Executive's employment (a "Notice of
Termination"). In the event that a Notice of Termination is delivered, the
employment of the Executive shall end at the date specified in the Notice of
Termination.
ARTICLE 2 - EMPLOYMENT
2.1 POSITION. Subject to the terms and conditions hereof, the Executive
shall be employed by the Corporation in the office of President, International
of the Corporation effective as of August 1, 2006 and shall perform such duties
and exercise such powers and responsibilities of such office. The position will
be based in Tampa, Florida, USA, and the Executive shall report to the President
and Chief Executive Officer of the Corporation.
2.2 RESPONSIBILITIES. The Executive agrees to devote substantially all of
his business time and attention to the business and affairs of the Corporation,
to discharge the responsibilities assigned to the Executive, and to use the
Executive's best efforts to perform faithfully and efficiently such
responsibilities. The Executive shall be entitled to serve as a director on
external boards of directors only upon the prior written approval of the
Corporation, provided that such approval shall not be unreasonably withheld for
any request to serve on up to two (2) external boards of directors. Anything
herein to the contrary notwithstanding, nothing shall preclude the Executive
from (i) serving on the boards of directors of a reasonable number of trade
associations and/or charitable organisations, (ii) engaging in charitable
activities and community affairs, and (iii) managing his personal investments
and affairs, provided that any or all of the foregoing activities do not
materially interfere with the proper performance of his duties and
responsibilities as the Corporation's President, International.
2.3 NO EMPLOYMENT RESTRICTION. The Executive hereby represents and confirms
that he is not bound by any restrictive covenants that would prevent his
employment by the Corporation.
ARTICLE 3 - REMUNERATION
3.1 SALARY. During the Term, the Corporation shall pay the Executive a base
salary (the "Base Salary") payable bi-monthly. The Base Salary shall not be less
than $375,000 per annum (pro-rated for any period of employment less than a full
calendar year) and shall be reviewed no less frequently than annually for
increases at the discretion of the President and Chief Executive Officer and/or
Board of Directors. Such reviews will take into account the current remuneration
policy of the Corporation and should not be construed as an automatic increase.
3.2 INCENTIVES.
(a) ANNUAL BONUSES. Subject to the provisions of this Section 3.2, the
Executive shall be entitled to an annual performance-based bonus (the "Bonus")
of an amount equal to up to one hundred percent (100%) of Base Salary for
achievement of specified target goals (the "Target Bonus") and up to an
additional one hundred percent (100%) of Base Salary for achievement of
performance goals in excess of the target goals (the "Excess Bonus"). The
performance goals and measures shall be established by the Human Resources and
Compensation Committee of the Board of Directors, subject to approval by the
Board of Directors each year. The goals shall be set forth in writing and
achievement of the specified target goals and of specified performance goals in
excess of target goals shall be determined by the Board in its sole discretion.
Bonuses shall be earned and payable for fiscal years beginning after December
30, 2006 only upon completion of the relevant fiscal year and provided the
Executive is actively and continuously employed for the full duration thereof,
unless otherwise provided in Article 5. Any bonus paid to the Executive is
entirely discretionary and there is no contractual entitlement to receive it nor
shall it be deemed to become part of the contractual employment relationship.
The Corporation reserves in its absolute discretion the right to terminate or
amend any bonus scheme without notice to the Executive. Receipt of bonus one
year creates neither right to, nor expectation of, any bonus in the next year.
For the year 2006 only, the Executive shall be guaranteed a Target Bonus equal
to 100% of Base Salary as prorated
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for time actually worked in 2006; any earned Excess Bonus for 2006 shall also be
prorated to reflect the partial year of employment. The Bonus, if earned with
respect to a fiscal year, shall be paid no later than the last day of the month
of February following the end of the fiscal year.
(b) EXECUTIVE INCENTIVE PLAN. The Executive shall be entitled to
participate each year in the Corporation's Executive Incentive Share Purchase
Plan or any successor plan thereto (all such plans referred to in the aggregate
as the "EISPP") to the extent that the Executive's performance exceeds 100% of
the annual performance objectives established for him. Any award earned for 2006
shall be prorated to reflect employment in 2006 following the Hire Date. The
EISPP is governed by its terms and is subject to amendment to comply with the
requirements of Section 409A of the Internal Revenue Code of 1986, as amended
(the "Code").
(c) LONG-TERM INCENTIVES. The Executive shall be entitled to
participate in the long-term incentive plans and programs of the Corporation as
made available from time to time to executives of a similar level in the
organisation. For the year 2006 only, the Executive will receive within the
later of: (i) thirty (30) days following the Hire Date; and (ii) seven (7) days
following the execution of this Agreement by the Executive, a PSU Grant
(Performance Share Unit Grant) Award equal to a current value of $300,000 as a
sign-on award. Such Grant shall be subject to the provisions of the Performance
Share Unit Plan.
(d) SIGN ON - CASH AWARD. The Executive shall be entitled to receive a
one-time Sign On - Cash Award of $100,000 payable within the later of: (i)
fourteen (14) days following the Hire Date; and (ii) seven (7) days following
the execution of this Agreement by the Executive.
3.3 BENEFITS AND PERQUISITES.
(a) The Executive shall be entitled to participate in all of the
Corporation's group insurance benefit plans, currently including medical,
dental, vision, prescription drugs, short term and long term disability, travel,
life, and accident insurance as provided to executives of a similar level in the
organization. All plans are governed by their terms.
(b) The Executive shall receive an annual automobile allowance of
$16,000 per year payable on a bi-weekly basis through payroll.
(c) The Executive is not entitled to any other benefit or perquisite
other than as specifically set out in this Agreement or agreed to in writing by
the Corporation.
(d) The Executive will be entitled to participate in an executive
annual health assessment subject to a financial reimbursement capped at $5,000
per calendar year.
The Executive understands and acknowledges that the perquisites
contemplated by this Section 3.3 shall be recorded as taxable benefits within
the meaning of the Income Tax Act (Canada) and may have comparable treatment
under the United States Internal Revenue Code.
3.4 VACATION. The Executive shall be entitled to four (4) weeks' vacation
with pay annually. Such vacation shall be taken at a time or times acceptable to
the Corporation having
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regard to its operations. Accumulated vacation may be not carried forward except
with the written approval of the President and Chief Executive Officer.
3.5 EXPENSES.
(a) Consistent with its corporate policies as established from
time-to-time, the Corporation agrees to reimburse the Executive for all expenses
reasonably incurred in connection with the performance of his duties upon being
provided with proper vouchers or receipts.
(b) The Executive shall relocate his personal residence to the Tampa,
Florida area. The Corporation shall provide relocation assistance as referred to
in Schedule A.
ARTICLE 4 - COVENANTS OF THE PARTIES
4.1 CONFIDENTIALITY.
(a) The Executive acknowledges that in the course of carrying out,
performing and fulfilling his obligations to the Corporation hereunder, the
Executive will have access to and will be entrusted with information that would
reasonably be considered confidential to the Corporation or its Affiliates, the
disclosure of which to competitors of the Corporation or its Affiliates or to
the general public, will be highly detrimental to the best interests of the
Corporation or its Affiliates. Such information includes, without limitation,
trade secrets, know-how, marketing plans and techniques, cost figures, client
lists, software, and information relating to employees, suppliers, customers and
persons in contractual relationship with the Corporation. Except as may be
required in the course of carrying our his duties hereunder, the Executive
covenants and agrees that he will not disclose, for the duration of this
Agreement or at any time thereafter, any such information to any person, other
than to the directors, officers, employees or agents of the Corporation that
have a need to know such information, nor shall the Executive use or exploit,
directly or indirectly, such information for any purpose other than for the
purposes of the Corporation nor will he disclose nor use for any purpose, other
than for those of the Corporation or its Affiliates or any other information
which he may acquire during his employment with respect to the business and
affairs of the Corporation or its Affiliates. Notwithstanding all of the
foregoing, the Executive shall be entitled to disclose such information if
required pursuant to a subpoena or order issued by a court, arbitrator or
governmental body, agency or official, provided that the Executive shall first
have:
(i) notified the Corporation;
(ii) consulted with the Corporation on the advisability of taking
steps to resist such requirements;
(iii) if the disclosure is required or deemed advisable,
cooperate with the Corporation in an attempt to obtain an
order or other assurance (at the Corporation's expense) that
such information will be accorded confidential treatment.
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(b) For the purposes of this Agreement, "Affiliate" shall mean, with
respect to any person or entity (herein the "first party"), any other person or
entity that directs or indirectly controls, or is controlled by, or is under
common control with, such first party. The term "control" as used herein
(including the terms "controlled by" and "under common control with") means the
possession, directly or indirectly, of the power to: (i) vote fifty percent
(50%) or more of the outstanding voting securities of such person or entity, or
(ii) otherwise direct or significantly influence the management or policies of
such person or entity by contract or otherwise.
4.2 INVENTIONS.
(a) The Executive acknowledges and agrees that all right, title and
interest in and to any information, trade secrets, advances, discoveries,
improvements, research materials and data bases (collectively, "discoveries")
made or conceived by the Executive prior to or during his employment relating to
the business or affairs of the Corporation, shall belong to the Corporation. In
connection with the foregoing, the Executive agrees to execute any assignments
and/or acknowledgements as may be requested by the Board of Directors from time
to time.
(b) Notwithstanding Section 4.2(a), the Executive shall retain all
right, title and interest in and to the Executive's as yet un-named business
management text on which he is currently working, provided however this shall
not grant or transfer to the Executive any right, title or interest in or to any
discoveries that otherwise belong to the Corporation or negate or limit
Executive's obligations under Section 4.1 of this Agreement.
4.3 CORPORATE OPPORTUNITIES. Any business opportunities related to the
business of the Corporation which become known to the Executive during his
employment hereunder must be fully disclosed and made available to the
Corporation by the Executive, and the Executive agrees not to take or attempt to
take any action if the result would be to divert from the Corporation any
opportunity which is within the scope of its business.
4.4 RESTRICTIVE COVENANTS.
(a) The Executive will not at any time, without the prior written
consent of the Corporation, during the Term of this Agreement or for a period of
eighteen (18) months after the termination of the Executive's employment
(regardless of the reason for such termination), either individually or in
partnership, jointly or in conjunction with any person or persons, firm,
association, syndicate, company or corporation, whether as agent, shareholder,
employee, consultant, or in any manner whatsoever, directly or indirectly:
(i) anywhere in the Territory, engage in, carry on or otherwise
have any interest in, advise, lend money to, guarantee the
debts or obligations of, permit the Executive's name to be
used in connection with any business which is competitive to
the Business or which provides the same or substantially
similar services as the Business; and/or
(ii) for the purpose of competing with any business of the
Corporation, solicit, interfere with, accept any business
from or render any
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services to anyone who is a client or a prospective client
of the Corporation or any Affiliate at the time the
Executive ceased to be employed by the Corporation or who
was a client during the twelve (12) months immediately
preceding such time; and/or
(iii) solicit or offer employment to any person employed or
engaged by the Corporation or any Affiliate at the time the
Executive ceased to be employed by the Corporation or who
was an employee or during the twelve (12) month period
immediately preceding such time.
(b) For the purposes of the Agreement:
(i) "Territory" shall mean the countries in which the
Corporation and its subsidiaries conduct the Business;
(ii) "Business" shall mean the business of manufacturing, selling
or distributing carbonated soft drinks, juices, water and
other non-alcoholic beverages to the extent such other
non-alcoholic beverages contribute, or are contemplated or
projected to contribute, materially to the profits of the
Corporation at the time of the Executive's termination of
employment.
(c) 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.
4.5 INSIDER POLICIES. The Executive will comply with all applicable
securities laws and the Corporation's Insider Trading Policy and Insider
Reporting Procedures (copies of which have been provided to the Executive) in
respect of securities of the Corporation issued or acquired by the Executive.
4.6 NONDISPARAGEMENT. The Executive shall not disparage the Corporation or
any of its affiliates, directors, officers, employees, or other representatives
in any manner and shall in all respects avoid any negative criticism of the
Corporation, provided that nothing herein shall be construed to prevent or
restrict the Executive from making any truthful statements in response to
comments about the Executive made by the Corporation and provided further that
nothing contained in this Section 4.6 shall in any way derogate from the
Executive's obligation of confidentiality owed to the Corporation under Section
4.1 hereof or otherwise.
4.7 GENERAL PROVISIONS.
(a) The Executive acknowledges and agrees that in the event of a
breach of the covenants, provisions and restrictions in this Article 4, the
Corporation's remedy in the form of monetary damages will be inadequate and that
the Corporation shall be and is hereby authorized and entitled, in addition to
all other rights and remedies available to it, to apply for and obtain from a
court of competent jurisdiction interim and permanent injunctive relief and an
accounting of all profits and benefits arising out of such breach.
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(b) The parties acknowledge that the restrictions in this Article 4
are reasonable in all of the circumstances and the Executive acknowledges that
the operation of restrictions contained in this Article 4 may seriously
constrain his freedom to seek other remunerative employment. If any of the
restrictions are determined to be unenforceable as going beyond what is
reasonable in the circumstances for the protection of the interests of the
Corporation but would be valid, for example, if the scope of their time periods
or geographic areas were limited, the parties consent to the court making such
modifications as may be required and such restrictions shall apply with such
modifications as may be necessary to make them valid and effective.
(c) Each and every provision of these Sections 4.1, 4.2, 4.3, 4.4,
4.5, 4.6, and 4.7 hereunder shall survive the termination of this Agreement or
the Executive's employment hereunder (regardless of the reason or such
termination).
ARTICLE 5 - TERMINATION OF EMPLOYMENT
5.1 TERMINATION BY THE CORPORATION FOR JUST CAUSE, DISABILITY OR DEATH OR
NOTICE OF TERMINATION.
(a) The Corporation may terminate this Agreement and the Executive's
employment hereunder without payment of any compensation either by way of
anticipated earnings or damages of any kind at any time for Just Cause,
Disability or death of the Executive, or by delivery of a Notice of Termination
by the Executive.
(b) For purposes of this Agreement, "Just Cause" shall mean:
(i) the Executive pleads guilty or no contest to, or is
convicted of, any act which is defined as a felony under
federal or state law; and/or
(ii) the Executive, in carrying out his duties, engages in
conduct that constitutes willful gross neglect or willful
gross misconduct (including willful breach of fiduciary
duties) resulting in either case, in material economic harm
to the Corporation; and/or
(iii) the Executive commits a willful and material breach of this
Agreement or commits a willful act of misappropriation or
fraud against the Corporation or its property.
There shall be no termination for Just Cause without the Executive
first being given written notice of the basis for termination for Just Cause and
an opportunity to be heard by the Board of Directors and the President and Chief
Executive Officer of the Corporation.
(c) For the purposes of this Agreement, "Disability" shall have
occurred if the Executive has been unable due to illness, disease, or mental or
physical disability (in the opinion of a qualified medical practitioner who is
satisfactory to the Executive and the Corporation acting reasonably), to
substantially perform the duties and responsibilities of his employment with the
Corporation for any consecutive six (6) month period or for any period of nine
(9) months (whether or not consecutive) in any consecutive twelve (12) month
period, or the
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Executive has been declared by a court of competent jurisdiction to be mentally
incompetent or incapable of managing his affairs.
If the Executive and the Corporation cannot agree on a qualified medical
practitioner, each party shall select a medical practitioner, and the two
practitioners shall select a third who shall be the approved medical
practitioner for this purpose.
In the event of a termination of the Executive's employment on account of
death or Disability, the Executive will receive that portion of his Base Salary
which is payable to date of death or Disability. Participation in all bonus
plans (specifically including all short term and long term incentive plans) or
other stock option, equity or profit participation plans terminates immediately
upon the date of death or Disability (provided that, for greater certainty, any
unvested rights pursuant to such plans shall immediately vest in accordance with
such plans). The Corporation shall, however, pay to the Executive, if entitled
thereto, a Target Bonus based on achievement of the specified target goals to
such date and calculated pro rata for such year for the period up to the date of
death or Disability. The final portion of his Base Salary shall be paid on the
regularly scheduled pay date coincident with or next following the date of
termination of employment. The pro-rata Target Bonus, if any, shall be paid as
soon as practicable and in any event no later than the last day of the month of
February following the end of the fiscal year in which such death or Disability
occurred.
5.2 TERMINATION BY THE EMPLOYER WITHOUT CAUSE.
(a) If the Executive's employment is terminated by the Corporation,
including delivery by the Corporation of a Notice of Termination, for any reason
other than for Just Cause, Disability, death of the Executive, then the
Corporation shall pay to the Executive within thirty (30) days of the date of
his termination of employment, or if a six (6) month delay is required to comply
with Code section 409A, on the first business day following such delay period, a
lump sum amount equal to the sum of:
(i) 1.5 times his Base Salary at the time of his termination of
employment; and
(ii) 1.5 times the average of the aggregate of:
(A) the Target Bonus, and
(B) the Excess Bonus,
actually achieved by and awarded to the Executive for the
most recent two (2) completed fiscal years.
The Executive shall also receive that portion of his Base Salary which is
payable to the date of termination of employment. Participation in all bonus
plans (specifically including all short term and long term incentive plans) or
other stock option, equity or profit participation plans terminates immediately
on such date of termination (provided that the Executive's right to receive any
unvested Performance Share Units pursuant to the Performance Share Unit Plan of
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the Corporation in effect on the date hereof (or any successor thereto) shall,
subject to the approval of the Human Resources and Compensation Committee of the
Board of Directors of the Corporation, immediately vest). The Corporation shall,
however, pay to the Executive, if entitled thereto, a Target Bonus based on
achievement of the specified target goals to such date of termination and
calculated pro rata for such year for the period prior to his date of
termination. The final portion of such Base Salary payable for services
performed to the date of termination shall be paid on the regularly scheduled
pay date coincident with or next following the date of termination of
employment. The pro-rata Target Bonus, if any, shall be paid no later than the
last day of the month of February following the end of the fiscal year, or if a
six-month delay is required to comply with Code section 409A, on the first
business day following such delay period.
(b) In the event of the termination of the Executive's employment
under this Section 5.2, the Corporation shall, to the extent it may do so
legally and in compliance with the Corporation's benefit plans in existence from
time to time, continue medical and dental group insurance benefits (which for
greater certainty does not include short-term disability, long-term disability,
long-term care, life insurance or any other benefits) at a level equivalent to
those provided to the Executive immediately prior to the termination for a
period until the date which is eighteen (18) months following the date of
termination, provided that, the benefits contemplated by this sub-paragraph
shall terminate on the date the Executive obtains alternate employment providing
comparable benefits. Such coverage shall be applied toward the obligation to
provide continuation coverage under applicable law.
5.3 TERMINATION BY THE EXECUTIVE FOR GOOD REASON.
(a) The Executive may terminate his employment at any time for Good
Reason upon the occurrence, without the express written consent of the
Executive, of any of the following:
(i) a material diminution in the Executive's title or duties or
assignment to the Executive of materially inconsistent
duties; and/or
(ii) a reduction in the Executive's then current Base Salary or
Target Bonus opportunity as a percentage of Base Salary
except for reductions applicable to all senior management;
and/or
(iii) a change in the reporting structure so that the Executive
no longer reports directly to the President and Chief
Executive Officer; and/or
(iv) relocation of the Executive's principal place of employment
to a location other than the Tampa, Florida, area unless
such relocation is effected at the request of the Executive
or with the Executive's approval; and/or
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(v) a material breach by the Corporation of any provisions of
this Agreement; and/or
(vi) the failure of the Corporation to obtain the assumption in
writing of its obligation to perform this Agreement by any
successor to all or substantially all of the business or
assets of the Corporation within fifteen (15) days after a
merger, consolidation, sale, or similar transaction unless
the Executive shall have personally received the opinion of
counsel to the Corporation that such transaction does not
have an adverse legal effect on the rights of the Executive
hereunder.
There shall be no termination for Good Reason without written notice from
Executive describing the basis for the termination and the Corporation's having
a reasonable period to cure.
(b) In the event the Executive terminates this Agreement for Good
Reason, he shall be entitled to the same payments and benefits provided in
Section 5.2 above.
5.4 VOLUNTARY RESIGNATION; RETIREMENT. In the event the Executive wishes to
resign his employment voluntarily, he shall provide at least thirty (30) days'
notice in writing to the Corporation. The Corporation may waive such notice in
whole or in part by paying the Executive's Base Salary and continuing his group
benefits and perquisites to the effective date of resignation.
5.5 TERMINATION UPON A CHANGE OF CONTROL.
(a) If, upon a Change of Control, or as a consequence of the Change of
Control prior to the Change of Control, or within twelve (12) months following a
Change of Control, the Executive's employment is terminated without Just Cause
or if the Executive terminates his employment for Good Reason, the Executive
shall be entitled to the payments and benefits provided in Section 5.2 plus
shall be entitled to have all unvested rights and entitlements under the
Corporation's Performance Share Unit Plan, Executive Incentive Share Purchase
Plan and Stock Appreciation Rights Plan, accelerated under such plans such that
such rights and entitlements shall fully vest to the maximum extent permitted
under such plans.
(b) For the purposes of this Agreement, a "Change of Control" shall
mean the occurrence of anyone or more of the following:
(i) a take-over bid (within the meaning of the Securities Act
(Ontario)), other than a take-over bid exempt from the
requirements of Part XX of such Act, pursuant to subsections
93(1)(b) or (c) thereof, is completed in respect of more
than twenty percent (20%) of the Corporation's common shares
and the majority of the members who were members of the
Board of Directors of the Corporation prior to completion of
such take-over bid are replaced within sixty (60) days
following the completion of such take-over bid;
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(ii) any of the following occur: (A) any consolidation, merger or
amalgamation of the Corporation with or into any other
corporation whereby the voting shareholders of the
Corporation immediately prior to such event receive less
than fifty percent (50%) of the voting shares of the
consolidated, merged or amalgamated corporation; (B) a sale
by the Corporation of all or substantially all of the
Corporation's undertakings or assets; (C) a proposal by or
with respect to the Corporation being made in connection
with a liquidation, dissolution or winding up of the
Corporation; (D) any reorganization, reverse stocle split or
recapitalization of the Corporation that would result in a
Change of Control as otherwise defmed herein; or (E) any
transaction or series of related transactions having,
directly or indirectly, the same effect as any of the
foregoing.
(c) Notwithstanding the foregoing, if payment is to be made under this
Section 5.5 within the first three years of the Executive's employment and if
the payment provided for under this Section 5.5, alone or together with any
other payments and/or benefits to be made to or for the benefit of the
Executive, whether pursuant to this Agreement or otherwise, would constitute a
parachute payment, as defined in Code section 280G(b)(2), such payments shall be
reduced so that the present value of the aggregate payments shall be 299.99% of
the Executive's base amount, as defined in Code section 280G, if such reduction
would result in the Executive retaining on an after-tax basis, an amount equal
to or greater than the Executive would retain after payment of all taxes,
including the parachute excise tax, if such payments were not reduced. Following
the third anniversary of the Executive's employment, if any amount becomes
payable under this Section 5.5 and if such payment, alone or together with any
other payment and/or benefits to be made to or for the benefit of the Executive,
whether pursuant to this Agreement or otherwise, would constitute a parachute
payment, as defined in Code section 280G(b)(2), such payments shall be reduced
so that the present value of the aggregate payments shall be 299.99% of the
Executive's base amount so that no portion of the amounts received by the
Executive will be subject to the excise tax imposed by Code section 4999. In
either case if such reduction occurs, the Executive may designate the payment or
portion thereof to be reduced.
(d) The determination of whether payments made upon a Change of
Control constitute a parachute payment, as provided in (i) above, and, if so,
the amount to be paid to the Executive shall be made by an independent auditor
(the "Auditor") jointly selected by the Corporation and the Executive and paid
by the Corporation. The Auditor shall be a nationally recognized United States
public accounting firm. If the Executive and the Corporation cannot agree on the
firm to serve as the Auditor, then the Executive and the Corporation shall each
select one accounting firm and those two firms shall jointly select the
accounting firm to serve as the Auditor. Notwithstanding anything to the
contrary, however, in the event that the foregoing parachute payment
determination shall be challenged by the Internal Revenue Service, the final
resolution of such challenge (by way of settlement or court decision) shall
govern for purposes of computing any applicable limitation under (i) above, and
the Executive shall repay to the Corporation any adjustment amount that results
from such recomputation,
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together with interest on such adjustment amount computed at the applicable
Federal rate as of the date of the original payment to the Executive under (i)
above.
5.6 PAYMENT TO DATE OF TERMINATION. Regardless of the reasons for the
termination, the Corporation shall make payment to the Executive to the
effective date of termination for all Base Salary, any accrued but unpaid
vacation entitlements, and, other than in the event of a termination for Just
Cause, any other amounts earned and owing to the Executive but not yet paid as
well as other or additional benefits in accordance with applicable plans or
programs of the Corporation.
5.7 RETURN OF PROPERTY. Upon any termination of his employment, the
Executive shall forthwith deliver or cause to be delivered to the Corporation
all books, documents, computer disks, and diskettes and other electronic data,
effects, money, securities, or other property belonging to the Corporation or
for which the Corporation is liable to others, which are in the possession,
charge, control or custody of the Executive.
5.8 RELEASE. The Executive acknowledges and agrees that the payments
pursuant to this Article shall be in full satisfaction of all terms of
termination of his employment, including termination pay and severance pay
pursuant to the applicable employment standards or other legislation as amended
from time to time. Except as otherwise provided in this Article, the Executive
shall not be entitled to any further termination payments, damages or
compensation whatsoever. As condition precedent to any payment pursuant to this
Article, the Executive agrees to deliver to the Corporation prior to any such
payment, a full and final release from all actions or claims in connection
therewith in favour of the Corporation, its affiliates, subsidiaries, directors,
officers, employees and agents, in the form attached hereto as Schedule B
Schedule A.
5.9 NO MITIGATION; SET-OFF; NATURE OF PAYMENTS. In the event of any
termination of employment under this Article 5, the Executive shall be under no
obligation to seek other employment and there shall be no offset against amounts
due to the Executive under this Agreement on account of any remuneration
attributable to any subsequent employment that he may obtain except as
specifically provided in this Agreement; provided, however, the Executive
authorizes the Corporation to deduct from any payment due to him pursuant to
this Agreement, any amounts owed by him to the Corporation by reason of
purchases, advances, loans, or other similar contractual obligations to pay
money. This provision shall be applied so as not to conflict with any applicable
legislation. Any amounts due under this Article 5 are in the nature of severance
payments considered to be reasonable by the Corporation and are not in the
nature of a penalty.
ARTICLE 6 - DIRECTORS AND OFFICERS
6.1 RESIGNATION. If the Executive is a director or officer at the relevant
time, the Executive agrees that after termination of his employment with the
Corporation he will tender his
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resignation from any position he may hold as an officer or director of the
Corporation or any of its affiliated or related companies.
6.2 INSURANCE. The Corporation shall maintain such directors' and officers'
liability insurance for the benefit of the Executive in accordance with
corporate policies and as generally provided to the directors of the
Corporation.
6.3 INDEMNIFICATION. The Corporation agrees that, if the Executive is made
a party, or is threatened to be made a party, to any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "Proceeding"), by
reason of the fact that he is or was a director, officer or employee of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, member, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether or not the basis of such Proceeding
is the Executive's alleged action in an official capacity while serving as a
director, officer, member employee or agent, the Executive shall be indemnified
and held harmless by the Corporation to the fullest extent legally permitted or
authorized by the Corporation's certificate bylaws or resolutions of the
Corporation's Board of Directors, against all cost, expense, liability, and loss
reasonably incurred or suffered by the Executive in connection therewith, and
such indemnification shall continue as to the Executive even if he has ceased to
be a director, member, employee or agent of the Corporation or other entity and
shall inure to the benefit of the Executive's heirs, executors and
administrators. The Corporation shall advance to the Executive all reasonable
costs and expenses incurred by him in connection with a Proceeding within twenty
(20) days after receipt by the Corporation of a written request for such
advance. Such request shall include an undertaking by the Executive to repay the
amount of such advance if it shall ultimately be determined that he is not
entitled to be indemnified against such cost and expenses.
ARTICLE 7 - ARBITRATION
7.1 All matters in difference between the parties in relation to this
Agreement, shall be referred to the arbitration of a single arbitrator, if the
parties agree upon one, otherwise to three arbitrators, one to be appointed by
the Corporation and one to be appointed by the Executive and a third to be
chosen by the first two arbitrators named before they enter upon the business of
arbitration. The arbitration shall be conducted in Tampa, Florida, in accordance
with the rules of the American Arbitration Association as it may from time to
time be amended, and each party shall be responsible for its own expenses
related to the arbitration. The award and determination of the arbitrator or
arbitrators or any of two of three arbitrators shall be binding upon the parties
and their respective heirs, executors, administrators and assigns.
ARTICLE 8 - AMENDMENT
8.1 The Corporation and Executive recognize that certain amounts which may
become payable under this Agreement are or may be subject to Code section 409A,
that final guidance under Code section 409A has not been issued but is
anticipated in the near future, and that failure to comply with Code section
409A will result in adverse tax consequences to the Executive. Therefore,
Corporation and Executive agree to the amendment of this Agreement following the
issuance of such final guidance to the extent necessary with respect to amounts
which may become payable hereunder either to provide for the exemption of such
amounts from the requirements of Code section 409A or to comply with the
requirements of Code section
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409A, provided that no such amendment shall have any materially adverse economic
impact on the Executive.
ARTICLE 9 - CONTRACT PROVISIONS
9.1 HEADINGS. The headings of the Articles and paragraphs herein are
inserted for convenience of reference only and shall not affect the meaning or
construction hereof.
9.2 INDEPENDENT ADVICE. The Corporation and the Executive acknowledge and
agree that they have each obtained independent legal advice in connection with
this Agreement and they further acknowledge and agree that they have read,
understand and agree with all of the terms hereof and that they are executing
this Agreement voluntarily and in good faith.
9.3 GENDER. Words denoting any gender include both genders.
9.4 GOVERNING LAW. This Agreement shall be construed and interpreted in
accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein. Each of the parties hereby irrevocably attorns to the
jurisdiction of the court of the Province of Ontario with respect to any matters
arising out of this Agreement.
9.5 ENTIRE AGREEMENT. This Agreement, together with the plans and documents
referred to herein, constitutes and expresses the whole agreement of the parties
hereto with reference to any of the matters or things herein provided for or
herein before discussed or mentioned with reference to such employments for the
Executive and supersedes and replaces all prior agreements between the parties
hereto in respect of the matters or things herein provided for. All promises,
representation, collateral agreements and undertakings not expressly
incorporated in this Agreement are hereby superseded by this Agreement.
9.6 SEVERABILITY. If any provision contained herein is determined to be
void or unenforceable in whole or in part, it shall not be deemed to affect or
impair the validity of any other provision herein and each such provision is
deemed to be separate and distinct.
9.7 NOTICE. 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:
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(a) in the case of the Corporation:
Cott Corporation
207 Queen's Quay West
Suite 340
Toronto, Ontario
M5J 1A7
Facsimile: (416) 203-6207
Attention: Chief Executive Officer
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Attention: Chief Legal Officer
(b) in the case of the Executive:
to the last address of the Executive in the records of the
Corporation and its subsidiaries
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.
9.8 SUCCESSORS. This Agreement shall enure to the benefit of and be binding
upon the parties hereto and their respective personal or legal representatives,
heirs, executors, administrators, successors and assigns.
9.9 SURVIVORSHIP. Upon the termination of Executive's employment, the
respective rights and obligations of the parties shall survive such termination
to the extent necessary to carry out the intended preservation of such rights
and obligations.
9.10 TAXES. All payments under this Agreement shall be subject to
withholding of such amounts, if any, relating to tax or other payroll deductions
as the Corporation may reasonably determine and should withhold pursuant to any
applicable law or regulation.
9.11 CURRENCY. All dollar amounts set forth or referred to in this
Agreement refer to U.S. currency.
9.12 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
COTT CORPORATION
Per: /s/ Brent Willis
-----------------------------------
Brent Willis
I have authority to bind the Corporation
SIGNED, SEALED & DELIVERED )
in the presence of )
)
)
) /s/ Wynn Willard
----------------------------------------
WYNN WILLARD
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SCHEDULE A
RELOCATION DETAILS
Please find details about the relocation assistance available as part of this
offer of employment.
HOME FINDING TRIP
Employees will be reimbursed for reasonable expenses, submitted on an approved
expense report including receipts for those expenses incurred during a 2 x 5-day
home finding trip. All travel must be booked through the company travel agency.
These expenses may include:
- - Round trip economy class (coach fare) airfare by commercial travel for
employee and spouse. Other family members may be included with prior
approval from the employee's Manager.
- - Car rental, parking and toll charges (if applicable).
- - Lodging, meals, telephone, laundry charges, Hotel and meal expenses
should be consistent with Cott's travel and expense policy.
IN-TRANSIT TRAVEL
Reimbursement will be made for reasonable one-way travel. If upon arrival in the
new location you are required to spend a night in a hotel reimbursement of one
night's lodging plus meal expenses for the employee and family will be
reimbursed.
HOME SELLING EXPENSES:
In the event that the employee owns a property that is not a vacation or income
producing property, and it is deemed to be the employee's principal residence,
Cott will reimburse for the customary, non recurring, legally required selling
costs incurred for those items that would normally be paid by the seller.
Specifically these are:
- - Real Estate commission (not to exceed 6% unless the rate is
customarily higher in the employee's area).
- - Attorney's fees related to the closing or escrow.
- - Land transfer taxes.
- - Mortgage loan pre-payment penalty fees to a maximum of three months.
- - Recording and processing fees
- - Title insurance fees
- - Inspection fees (termite, well/water, structural) up to $500.00
- - Up to $250.00 for professional services associated with the sale
including additional required surveys.
HOME PURCHASE EXPENSES
The following are the customary, non-recurring, and legally required purchase
costs you will be reimbursed for related to the purchase of a home at the new
location. This reimbursement applies to employees who were homeowners at the
prior location. Cott will reimburse the following customary closing costs
incurred for those items that are normally paid by the buyer:
- - Appraisal and/or Title insurance fees
- - Document preparation fees
- - Recording fees
- - Real estate transfer tax
- - Survey fees
- - Inspection fees (termite, well/water, structural) up to $500.00
- - All mortgage application fees
- - Land transfer taxes
- - Loan origination fee up to 1%.
- - Notary fees
The closing expenses which are not eligible for reimbursement by Cott include:
interest buy down points, hazard, fire, flood or any other type of homeowner
insurance premiums, prorated interest on mortgage, prorated rent, prorated
utility billings, home warranties, mortgage finder's fee, closing costs on
construction loans, building permits and/or inspections required by governmental
agencies.
DUPLICATE CARRYING COSTS
In the event the new property closes before the sale of the principal residence,
Cott will reimburse duplicate carrying costs, specifically, mortgage, interest
and property taxes for a period of up to 90 days. You are strongly encouraged to
coordinate the closing and purchase dates. Duplicate carrying costs will be
reimbursed on the lesser of the two properties.
PHYSICAL GOODS MOVE
Cott has contracted with several professional moving carriers to transport
personal and household goods to the new home. Human Resources can assist with
organizing the moving carrier service for employees. Two estimates should be
obtained from professional moving
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carriers to transport personal and household goods to the
new home. The following services will be covered:
- - Packing, loading and shipment of your personal and household
belongings from your principal residence to your new residence or to
storage.
- - Insurance required to protect the household and personal belongings
during the move. This will be arranged through the moving company.
The following items are NOT covered:
- - Boats, trailers, recreational vehicles, mobile homes, pets, satellite
dishes, large gym or fitness equipment, workshop equipment, large
machinery, live plants, perishable items, chemicals, lumber, firewood,
paint, playground equipment, hot tubs, storage sheds, disassembly or
assembly of equipment/items, crating (unless prior approval granted)
and special services e.g., piano tuning.
SHIPMENT OF VEHICLES
Transportation of up to a maximum of two (2) family automobiles to the new
location by the most economical means available are included, however, if
relocation is to another continent, this provision may not apply.
STORAGE
Through our moving carriers, Cott will pay for the cost of storing household
goods for a period not to exceed sixty (60) days. Cott will pay for the movement
of goods out of storage and into a permanent residence. This includes
warehouse-handling costs in and out of storage and delivery out of storage.
INSURANCE
Insurance for your household goods while in transit will be provided through a
designated insurance provider or directly through the moving carrier. This
insurance covers your household goods through packing, transit, storage
in-transit and unloading. All claims should be filed directly with the moving
carrier and/or insurance provider.
TEMPORARY LIVING EXPENSES
Temporary living expenses may be reimbursed if you are required to report to
your new assignment, or to vacate your former residence before your new
residence is available. You may be reimbursed for:
- - Reasonable and actual lodging/rent, meals, laundry and telephone
charges for a period not to exceed ninety (90) days.
- - For temporary housing, other than hotels, you are encouraged to submit
grocery bills instead of restaurant receipts.
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In the event the employee's family must remain at the old location, the employee
will be reimbursed for coach airfare visits to his/her family for up to a
maximum of three visits.
LEASE CANCELLATION EXPENSES
Before approving any lease cancellation reimbursement for either accommodation
or vehicles, the hiring Manager and the Chief People Officer must agree upon and
approve the reasonableness of the expenses. Settlement of a leased home or
apartment or vehicle may be based on one of the following:
- - The amount to be paid to the landlord/leasing company for cancellation
of the lease.
- - Such other equitable arrangements as agreed to by Cott.
RELOCATION ALLOWANCE
Cott will provide a relocation allowance of the equivalent of 2 months base
salary (net) payable after the move has been completed. This allowance is
generally used to cover the incidental costs incurred during a relocation for
which the employee is not required to retain receipts. This allowance may be
used for such things as:
- - Utilities hook-up and connection charges.
- - Appliance hook-up.
- - Drivers' licensing when relocating to a different
province/state/country.
- - Transportation of pets.
- - Installation/removal or cleaning of drapes and/or carpeting.
- - Extra labour such as maid service.
- - Shipment of other personal vehicles not included with the personal
belongings, such as boats, recreational vehicles.
TERMINATION OF EMPLOYMENT
In the event that your employment is terminated whether voluntarily or
involuntarily with Cott within 12 months of your start date you will forfeit any
remaining Relocation Policy benefits as of the date of termination.
If Cott terminates you within 12 months of joining, Cott will provide you with
an option to transfer back to your place of origin. Your relocation will include
those items listed above (but will exclude the relocation allowance) that are in
keeping with your original relocation assistance.
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EXPENSE REPORT
During your relocation you will be required to track your expenses for those
items other than those covered by the relocation allowance. Such expenses as the
house-hunting trip, temporary housing, family travel, etc., will be submitted
for reimbursement on a Relocation Expense Report. This is the only expense
report that will be approved for relocation expenses. Relocation expenses must
never be mixed with regular business expenses. Completed expense reports should
be signed by your manager and then submitted to Human Resources, Corporate.
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SCHEDULE A
RELEASE
FROM: WYNN WILLARD (THE "EXECUTIVE")
TO: COTT CORPORATION ("COTT") , ITS RESPECTIVE 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, ATTORNEYS AND INSURERS (ALL COLLECTIVELY
REFERRED TO AS "RELEASEES")
1. In consideration of the terms as set out in the agreement from Cott to the
Executive dated _____ (the "Agreement"), the receipt and sufficiency of
which consideration are hereby acknowledged, and except for the obligations
owed to the Executive and referred to in the Agreement, the Executive
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 the
Executive'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 the Executive may have
under any United States, Canada, state, province, or local statute or
ordinance, including without limitation the U.S. Age Discrimination in
Employment Act, the U.S. Civil Rights Acts of 1964 and 1991, the U.S.
Family and Medical Leave Act, the U.S. Employee Retirement Income Security
Act ("ERISA"); the Florida Civil Rights Act of 1992; 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 Employment Standards Act, 2000. Notwithstanding
anything herein to the contrary, in no event shall this Release apply to
(i) the Executive's rights as a holder of common shares of Cott; (ii) the
enforcement of the obligations of Cott or any Releasee under the Agreement;
(iii) the Executive's right to indemnification under the Agreement or
otherwise in effect on the date of this Release; and (iv) any claims for
workers' compensation benefits or vested retirement or welfare benefits to
which the Executive is entitled, if any, under the terms of Cott's
retirement and welfare benefit plans, as in effect from time to time,
determined in accordance with the terms of those plans.
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2. The Executive 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 the Executive might have against the Releasees and,
therefore, in this respect, the Executive 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 the Executive's employment or other engagement with Cott. In
the event that the Executive 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.
The Executive confirms that he has no right to re-instatement, re-call or
re-employment with any of the Releasees, and the Executive 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. The Executive further agrees not to make or voluntarily 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, including under the
provisions of the Negligence Act or any other statute.
4. With the exception of disclosure to the Executive's immediate family or to
his legal or professional advisors (but provided any such person agrees not
to disclose such information to any other person), the Executive 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 the Executive and his heirs, executors,
administrators, successors and assigns and shall enure to the benefit of
the Releasees and to the benefit of all of the Releasees' heirs, executors,
administrators, successors and assigns.
6. The Executive acknowledges that he has had an opportunity to review this
Release for no less than twenty-one (21) days and the right to revoke his
acceptance of the Release for a period of seven (7) days after his
execution of the Release. The Executive also 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. The Executive
further confirms that no other promises or representations of any kind have
been made to the Executive to cause him to sign this Release.
7. The Executive acknowledges that this Release, the settlement of any dispute
between the Executive and Cott, or the payment of any monies to the
Executive, shall not constitute an admission of liability on the part of
Cott, which liability is denied.
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8. The Executive 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. The Executive 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 DAY OF ________________, ______________.
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Witness WYNN WILLARD
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