EXHIBIT 10.7
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
- and -
ALBILIO GONZALEZ (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 Chief People Officer 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 Chief People Officer 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. 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 Chief People Officer.
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 $325,000 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
23, 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 for time actually worked in 2006; any earned
Excess Bonus for 2006 shall also be prorated to
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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 30 days
of the Hire Date a PSU Grant (Performance Share Unit Grant) Award equal to a
current value of $200,000 as a sign-on award. Such Grant shall be subject to the
provisions of the Performance Share Unit Plan. For subsequent years, in
accordance with current practices, PSU Grants to the Executive are currently
projected (without any guarantees or commitment) to be based on an award amount
equal to two times the Executive's Base Salary, provided that, for greater
certainty, such PSU Grants shall be subject to the discretion and approval of
the Human Resources and Compensation Committee, which discretion shall in no way
be fettered by the provisions of this Agreement.
(d) SIGN ON - CASH AWARD. The Executive shall be entitled to receive a
one-time Sign On - Cash Award of $200,000 payable within 14 days of the Hire
Date.
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
organisation. All plans are governed by their terms.
(b) The Executive shall receive an annual automobile allowance of
$13,500 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 One.
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 that such information will be
accorded confidential treatment.
(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
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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 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. 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 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.
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
12 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;
(ii) for the purpose of competing with any business of the
Corporation, solicit, interfere with, accept any business
from or render any 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 12 months
immediately preceding such time;
(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 12 month period immediately
preceding such time.
(b) For the purposes of the Agreement:
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(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 (1%) percent of
any class of securities in any corporation provided that such class of
securities are listed on a recognized stock exchange in Canada or the United
States or on the NASDAQ.
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 shares issued to the Executive and other shares of the Corporation
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.
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.
(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).
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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;
(ii) the Executive's ability to perform his duties is impaired by
alcoholism or drug addiction;
(iii) the Executive commits theft, misappropriation or fraud
against the Corporation or its property;
(iv) the Executive, in carrying out his duties, engages in
conduct that constitutes gross neglect or gross misconduct
or dishonesty;
(v) the Executive commits a willful breach of fiduciary duties;
or
(vi) the Executive commits a willful and material breach of this
Agreement.
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 President and Chief Executive Officer.
(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 12 month period, or
the 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 (if living) will receive that portion of his
Base Salary which is payable
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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. 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 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 30 days of the date of his
termination of employment, or if a six month delay is required to comply with
Code section 409A, on the first business day of the seventh month following the
month in which termination of employment occurred, a lump sum amount equal to
the sum of:
(i) an amount equal to his annual Base Salary at the time of his
termination of employment; and
(ii) a Target Bonus in an amount equal to the average of the
Target Bonus payment 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. 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, and if later, on the first business day of the seventh month following the
month in which termination of employment occurred.
(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 12 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
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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;
(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;
(iii) a change in the reporting structure so that the Executive
no longer reports directly to the President and Chief
Executive Officer;
(iv) relocation of the Executive's principal place of employment
to a location other than the Tampa, Florida, or Toronto,
Ontario, areas unless such relocation is effected at the
request of the Executive or with the Executive's approval;
(v) a material breach by the Corporation of any provisions of
this Agreement; 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.
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5.5 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.
5.6 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.
5.7 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 satisfactory to the Corporation,
acting reasonably.
5.8 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 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.
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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 Arbitrations Act (Ontario) 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 409A.
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.
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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:
(a) in the case of the Corporation:
Cott Corporation
207 Queen's Quay West
Suite 800
Toronto, Ontario
M5J 1A7
Facsimile: (416) 203-5609
Attention: President and Chief Executive Officer
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Attention: General Counsel
(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.
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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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
COTT CORPORATION
Per: /s/ Brent Willis
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Brent Willis
I have authority to bind the Corporation
Per: /s/ Mark Halperin
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Mark Halperin
I have authority to bind the Corporation
SIGNED, SEALED & DELIVERED)
in the presence of )
)
)
) /s/ Abilio Gonzalez
----------------------------------------
ABILIO GONZALEZ
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COTT CORPORATION
SCHEDULE ONE: RELOCATION DETAILS
Please find details about the relocation assistance available as part of this
offer of employment.
HOME SELLING COSTS
You will be eligible to receive a cash payment of no more than $100,000.00 (One
Hundred Thousand Dollars) and grossed up for taxes to offset the potential
difference in purchase and selling price of your current property in Seattle.
Such payment will be made on the satisfactory receipt of appropriate back up
documentation.
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
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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 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 (90) 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.
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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.
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 Senior Vice President, Corporate
Resources 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.
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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.
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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