EXHIBIT 10.29
(COTT LOGO)
December 13, 2006
WITHOUT PREJUDICE
DELIVERED VIA EMAIL TO: hycoray@aol.com
B. Clyde Preslar
Dear Mr. Preslar:
Re: Cott Corporation ("Cott") - Termination of Employment Services
We are writing to notify you that your employment services with Cott are hereby
terminated without cause, effective December 1, 2006.
Cott appreciates your contribution to the corporation and with a view to
resolving all matters on an amicable basis, has prepared the following severance
arrangements, which are in accordance with your July 22, 2005 Employment
Agreement in the event of a without-cause termination.
The severance arrangements are as follows:
1. DATE OF TERMINATION
The effective date of termination of services was December 1, 2006 (the
"Termination Date").
2. ACCRUED SALARY AND VACATION PAY
You will be paid your salary and accrued vacation pay to the Termination Date.
These payments will be less applicable statutory deductions and withholdings and
paid in a lump-sum payment during the next pay period immediately following the
Termination Date.
3. TERMINATION OF SERVICES PAYMENT AND OUT-PLACEMENT
We have agreed to pay you a lump-sum payment in connection with salary and bonus
entitlements equal to $1,485,000.00, less applicable statutory withholdings and
deductions, to be paid on the later of (a) a date that falls between January 1,
2007 and January 5, 2007 and (b) within five (5) business days following the
expiry of the revocation period as set out in section 11 (d) herein.
In addition, we will pay for the out of pocket cost of the following
outplacement services for a maximum of six (6) months with Right Management
Consultants: EXECUTIVE SERVICE
4. BENEFITS
We confirm that all benefits entitlement ceases as of the Termination Date and
that you have no further entitlement to any benefits beyond the Termination Date
other than any rights under applicable law to purchase continuation coverage
under Cott's group health plan.
5. EXPENSES
To the extent that you have incurred any proper travel, entertainment or other
business expenses, you will be reimbursed in accordance with Cott's policy. All
expense reports must be submitted within 30 days of your Termination Date.
6. STOCK OPTIONS/SHARE PURCHASE PLAN/401K PLAN
All of your rights with respect to vested stock options and vested performance
share units that you hold personally will continue after the termination of your
employment, subject of course to the provisions of the Cott's Restated 1986
Common Share Option Plan as amended (the "Option Plan"), for 60 days following
the Termination Date, and thereafter such options and share units shall be null
and void.
All other rights under Cott's share purchase plans and other long-term incentive
plans, including, without limitation, all rights to unvested shares under the
Cott Corporation Executive Incentive Share Purchase Plan, 401k Plan, and all
rights under Cott's Performance Share Unit Plan, shall terminate on the
Termination Date in accordance with those plans.
7. NO OTHER PAYMENTS
The payments and other entitlements set out in this letter constitute your
complete entitlement and Cott's complete obligations whatsoever, including with
respect to the cessation of your employment, whether at common law, statute or
contract. For greater certainty, we confirm that you are not entitled to any
further payment (including any bonus payments), benefits, perquisites,
allowances or entitlements earned or owing to you from Cott pursuant to any
employment or any other agreement, whether written or oral, whatsoever, all
having ceased on the Termination Date without further obligation from Cott. All
amounts paid to you pursuant to this letter shall be deemed to include all
amounts owing pursuant to the Employment Standards Act, 2000, and such payments
represent a greater right or benefit than that required under the Employment
Standards Act, 2000.
8. RESIGNATION & RELEASE
You will resign as an officer and director of Cott (and any direct and indirect
affiliates, subsidiaries and associated companies) with effect as of the
Termination Date. In this respect, you agree to execute and deliver the
Resignation Notice attached hereto as Schedule "1" and such further
documentation as may be required by Cott, in its sole discretion, in order to
effect this resignation. You agree to sign the Release in the form attached as
Schedule "2" to this letter, which as set forth in your Employment Agreement is
a condition precedent to any severance payments.
9. YOUR CONTINUING OBLIGATIONS
(a) You will continue to abide by all of the applicable provisions of
your Employment Agreement, and the "Confidentiality Undertaking
and Restrictive Covenant" dated July 22, 2005 ("the
Confidentiality Agreement"), which are intended to continue
following the cessation of your employment, including but not
limited to the Confidentiality, Non-Solicitation, and Non-
Competition covenants provided in Articles 1 and 5 of the
Confidentiality Agreement, which in the case of the
confidentiality covenant continues forever, and in the case of
the Non-Solicitation and Non-Competition covenants, will apply
for a period of twenty-four (24) months from the Termination
Date.
(b) You are required to return forthwith to Cott all of the property
of Cott in your possession or in the possession of your family or
agents including, without limitation, other wireless devices and
accessories, computer and office equipment, keys, passes, credit
cards, customer lists, sales materials, manuals, computer
information, software and codes, files and all documentation (and
all copies thereof) dealing with the finances, operations and
activities of Cott, its clients, employees or suppliers. You
shall be entitled to retain your cell phone provided all ongoing
usage charges and invoices relating thereto from the date hereof
shall be from your own account. It is your responsibility to make
all of the necessary arrangements to effect the transfer of the
usage charges to your own personal account as soon as possible,
and in any event, within 10 days from the Termination Date. Cott
acknowledges that you have returned your blackberry and computer.
(c) You will maintain the severance arrangements as set out in this
letter in the strictest confidence and will not disclose them
except to your immediate family, or to the extent that such
disclosure may be required by law, or to permit you to obtain tax
planning, legal or similar advice. Cott will also keep the terms
of the settlement confidential, except to Cott's professional
advisors, or to the extent that such disclosure may be required
by law.
(d) You will agree to cooperate reasonably with Cott, and its legal
advisors, at Cott's request, direction and reasonable cost, in
connection with: (i) any Cott business matters in which you were
involved during your employment with Cott; or (ii) any existing
or potential claims, investigations, administrative proceedings,
lawsuits and other legal and business matters which arose during
your employment involving Cott; (iii) effecting routine
administrative compliance with respect to any regulatory
requirements that were applicable to Cott during the period of
your employment; and (iv) completing any further documents
required to give effect to the terms set out in this letter with
respect to which you have knowledge of the underlying facts.
10. TAXES
All payments referred to in this letter will be less applicable withholdings and
deductions, and you shall be responsible for all tax liability resulting from
your receipt of the payment and benefits referred to in this letter, except to
the extent that Cott has withheld funds for remittance to statutory authorities.
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11. GENERAL
(a) Entire Agreement: The agreement confirmed by this letter and the
attached schedules constitutes the entire agreement between you and
Cott with reference to any of the matters herein provided or with
reference to your employment or office with Cott, or the cessation
thereof. All promises, representations, collateral agreements, offers
and understandings not expressly incorporated in this letter agreement
are hereby superseded and have no further effect.
(b) Severability: The provisions of this letter agreement shall be deemed
severable, and the invalidity or unenforceability of any provision set
out herein shall not affect the validity or enforceability of the
other provisions hereof, all of which shall continue in accordance
with their terms.
(c) Period of Review: You have twenty-one (21) days from the date set
forth above to consider this letter agreement, including attachments.
No change to this letter agreement, whether material or immaterial,
will initiate a new twenty-one (21) day period. If you so desire, you
may voluntarily and knowingly sign, but are not required to sign, this
letter agreement before the end of the twenty-one (21) day period.
(d) Right to Revoke: You may revoke your acceptance of this letter
agreement at any time before the end of the seventh day after your
execution of the letter. In order for your revocation to be effective,
you must provide written notice of your intent to revoke to Sher Zaman
at the following address prior to the end of the seventh day after
execution:
Cott Corporation
207 Queen's Quay West, Suite 340
Toronto, ON M5J 1A7
You understand that, in the event you revoke this letter agreement, it
shall be of no effect, and you shall forfeit all of the consideration
which is being provided to you in exchange for their entering into
this letter agreement, including but not limited to Cott's promise to
make the payments described herein.
(e) Full Understanding: By signing this letter, you confirm that: (i) you
have had an adequate opportunity to read and consider the terms set
out herein, including the Release attached, and that you fully
understand them and their consequences; (ii) you have been advised,
through this paragraph, to consult with legal counsel and have
obtained such legal or other advice as you consider advisable with
respect to this letter agreement, inducting attachments; and (iii) you
are signing this letter voluntarily, without coercion, and without
reliance on any representation, express or implied, by Cott, or by any
director, trustee, officer, shareholder, employee or other
representative of Cott.
(f) Arbitration: In the event any dispute arises between you and Cott with
respect to the interpretation, effect or construction of any
provisions of this Agreement, either Cott or you may refer the matter
to final and binding arbitration without right of
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appeal, pursuant to the Arbitration Act, Ontario, for the disputed
matters to be determined by an arbitrator that is to be mutually
agreed upon, upon written notice to the other, whereupon, subject to
the availability of such an arbitrator, the arbitration hearing will
commence within 30 days of the said notice, without formality, with
the costs of the arbitration to be shared equally between the parties,
subject to such order for costs as the arbitrator may determine in his
or her sole discretion.
(g) Currency: All dollar amounts set forth or referred to in this letter
refer to U.S. currency.
(h) Governing Law: The agreement confirmed by this letter shall be
governed by the laws of the Province of Ontario, Canada.
* * *
If this offer is acceptable to you once you have had an opportunity to review
it, please sign the acknowledgement below to confirm your acceptance of same and
return to Abilio Gonzalez.
If you have any questions regarding the terms set out in this letter, please
feel free to contact Abilio Gonzalez.
Yours very truly,
COTT CORPORATION
PER:
/s/ Abilio Gonzalez
- -------------------------------------
Enclosures:
1. Schedule "1" - Resignation Notice
2. Schedule "2" - Release
Acknowledgement and Acceptance
I acknowledge having been provided at least twenty-one (21) days to review this
letter and the attached Release and Resignation Notice. I also acknowledge that
I have been advised, by this paragraph, and have had the opportunity to obtain
independent legal advice and that the only consideration for the Release is as
referred to in this letter. I confirm that no other promises or representations
of any kind have been made to me to cause me to sign this acknowledgement and
acceptance.
/s/ B. Clyde Preslar 12/14/06
- ------------------------------------- ---------------
B. Clyde Preslar Date
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SCHEDULE "1"
RESIGNATION NOTICE
TO: COTT CORPORATION
AND TO: ALL DIRECT AND INDIRECT AFFILIATES, SUBSIDIARIES AND ASSOCIATED
COMPANIES THEREOF
AND TO: ALL DIRECTORS THEREOF
I, B. CLYDE PRESLAR confirm my resignation as a director and from all offices
held by me of COTT CORPORATION, including all direct and indirect affiliates,
subsidiaries, and associated companies, with effect as of December 1, 2006.
/s/ B. Clyde Preslar
----------------------------------------
B. CLYDE PRESLAR
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SCHEDULE "2"
RELEASE
FROM: B. CLYDE PRESLAR ("PRESLAR")
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 letter from Cott to Preslar
dated December 13, 2006 (the "Agreement"), the receipt and sufficiency of
which consideration are hereby acknowledged, and except for the obligations
owed to Preslar and referred to in the Agreement, Preslar 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 Preslar'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 Preslar 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. Employment 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 arc 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.
2. Preslar 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 Preslar might have against the Releasees and,
therefore, in this respect, Preslar 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 EquiAct, 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 Preslar's employment or other engagement with Cott.
In the event that Preslar 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. Preslar
confirms that he has no right to re-instatement, re-call or re-employment
with any of the Releasees, and Preslar 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. Preslar further agrees not to make or assist in the commencement of any
claims (expressly including any cross-claim, counterclaim, third party
action or application) against any other person or corporation who might
claim contribution or indemnity against the persons or corporations
discharged by this Release, including under the provisions of the
Negligence Act or any other statute.
4. With the exception of disclosure to Preslar'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), Preslar 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 Preslar and his heirs, executors,
administrators, successors and assigns and shall ensure to the benefit of
Cott and to the benefit of all of the Cott's heirs, executors,
administrators, successors and assigns.
6. Preslar 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. Preslar 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. Preslar
further confirms that no other promises or representations of any kind have
been made to Preslar to cause him to sign this Release.
7. Preslar acknowledges that this Release, the settlement of any dispute
between Preslar and Cott, or the payment of any monies to Preslar, shall
not constitute an admission of liability on the part of Cott, which
liability is denied.
8. Preslar 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. Preslar agree 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.
9. Notwithstanding the foregoing or anything herein to the contrary, this
Release in no way releases Cott or any of the other Releasees from any
indemnification obligations such
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party or parties may hereafter have with respect to Preslar as provided for
in, and subject to all limitations of, the charter documents, by laws or
other agreements or documents of such parties, or by law, as the case may
be, as of the date hereof, all of which shall continue to at least the same
extent as currently exist with respect to Cott's directors and/or most
senior officers.
SIGNED, SEALED AND DELIVERED THIS 14TH DAY OF DECEMBER, 2006
/s/ Beverly S. Weaver /s/ B. Clyde Preslar
- ------------------------------------- ----------------------------------------
Witness B. CLYDE PRESLAR
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