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EXHIBIT 10.9
COTT CORPORATION
1999 EXECUTIVE INCENTIVE SHARE COMPENSATION PLAN
1.0 PURPOSE AND ESTABLISHMENT OF THIS PLAN
1.1 Cott Corporation hereby establishes a Plan to be known as the "Cott
Corporation 1999 Executive Incentive Share Compensation Plan" (the
"Plan") for the purpose of rewarding certain Employees of Cott
Corporation and its affiliates for exceeding one hundred percent (100%)
of their respective annual performance objectives and to which
contributions for such purpose will be made by or on behalf of the
Participating Companies.
2.0 DEFINITIONS
2.1 "ACT" means the Income Tax Act (Canada), as amended.
2.2 "ANNUAL PERFORMANCE OBJECTIVES" means the annual performance objectives
as established or approved by the Committee from time to time with
respect to each Participant in Cott's 1999 fiscal year (being the
period from January 3, 1999 to January 1, 2000).
2.3 "COMMITTEE" means the Human Resources and Compensation Committee of the
board of directors of Cott.
2.4 "COMMENCEMENT OF THE PLAN" means January 3, 1999.
2.5 "COMMON SHARES" means whole and fractional common shares in the capital
of Cott.
2.6 "COTT" means Cott Corporation, a corporation amalgamated under the laws
of Canada.
2.7 "EMPLOYEE" means a full-time or regular part-time employee of any of
the Participating Companies.
2.8 "NORMAL RETIREMENT" means retirement from office or employment with a
Participating Company (at the election of the Participant and as agreed
to by the Participating Company) coincident with or following the
attainment by the Participant of age fifty-five years.
2.9 "PARTICIPANT" means an Employee during Cott's 1999 fiscal year and who
is designated as a Participant from time to time by the Committee and,
in the case of death of a Participant, includes the personal
representative of the Participant.
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2.10 "PARTICIPATING COMPANIES" means Cott, BCB USA Corp., Cott Beverages
Limited and any other company designated as a Participating Company
from time to time by the Committee.
2.11 "PERMANENT DISABILITY" means the complete and permanent incapacity of a
Participant, as determined by a Cott approved licensed medical
practitioner, due to a medically determinable physical or mental
impairment which prevents such Participant from performing
substantially all of the essential duties of his or her office or
employment.
2.12 "TERM" means the term of the Plan beginning on January 3, 1999 and
ending on the date that the Common Shares purchased on behalf of each
Participant fully vest as set out in section 5.3 (b) below.
2.13 "TERMINATION DATE" in respect of a Terminated Participant's termination
pursuant to Section 5.5 means the Participant's last day of active
service (without regard to any notice of termination owing pursuant to
statute, regulation, agreement or common law).
2.14 "TERMINATED PARTICIPANT" means a Participant who has been terminated in
accordance with Section 5.5 of the Plan.
2.15 "TRUST" means the "1999 Cott Corporation Executive Incentive Share
Compensation Plan Trust" as embodied in a trust agreement entered into
between Cott and the Trustee.
2.16 "TRUSTEE" means The Canada Trust Company or its successor for the time
being in the trusts created hereby and by the Trust.
2.17 "UNVESTED SHARES" means Common Shares that have been allocated to a
Participant pursuant to section 5.1, but which have not yet vested in
such Participant pursuant to the provisions of this Plan.
2.18 "VESTING DATE" means, in the singular, the date that the Common Shares
vest pursuant to Section 5.3 (a) or (b) of this Agreement and
collectively, shall be referred to as the "Vesting Dates".
2.19 "VESTED SHARES" means those Common Shares held by the Trustee under the
Plan for the benefit of particular Participants that have vested for
the purposes of the Plan.
3.0 PARTICIPATION
3.1 Participants will be automatically enrolled in this Plan at the time
that the Committee or its designee designates such individual as a
"Participant".
3.2 Each Participant will be provided with a copy of this Plan.
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4.0 OPERATION OF THIS PLAN
4.1 Within 120 days after the end of Cott's 1999 fiscal year, the Committee
shall determine in respect of such fiscal year,
(a) the Employees of the Participating Companies who shall be
designated as "Participants" for this Plan for such fiscal
year on the basis of whether such Participant exceeded one
hundred percent (100%) of his or her annual performance
objectives; and
(b) the extent (in terms of Canadian dollars) of the participation
of such Participants in respect of such fiscal year.
4.2 Within 30 days after the determinations contemplated by section 4.1 are
made by the Committee, Cott shall cause to be contributed to the
Trustee for the benefit of each Participant employed by each
Participating Company, the relevant amounts (in Canadian dollars)
determined by the Committee to be payable in respect of the
Participants employed by each such Participating Company.
4.3 As soon as practicable after receiving the funds referred to in section
4.2, the Trustee shall use such funds to acquire Common Shares on The
Toronto Stock Exchange at the prevailing market price of Common Shares
at the time and on the date of acquisition of the Common Shares.
4.4 The purchase of Common Shares by the Trustee in accordance with the
Plan shall comply at all times and in all respects with all applicable
laws, including, without limitation, all rules, regulations and by-laws
of The Toronto Stock Exchange and all policies and regulations of
applicable securities regulatory authorities.
5.0 ALLOCATION, VESTING AND POSSESSION
5.1 As soon as practicable after the acquisition of Common Shares pursuant
to section 4.4, but in any event prior to August 31, 2000 the Trustee
shall determine in respect of each Participant:
(a) the number of Common Shares acquired with the amount
contributed to this Plan on behalf of such Participant;
(b) all amounts received in respect of Cott's 1999 fiscal year by
the Trustee from Cott which were contributed on behalf of such
Participant; and
(c) that Participant's proportionate share of all profits for
Cott's 1999 fiscal year from the property of the Trust
(determined without regard to any capital gain made by the
Trust or capital loss sustained by it).
5.2 Within thirty (30) days following the final Vesting Date in section
5.3(b) below, the Trustee shall pay to each Participant then in the
Plan such Participant's pro rata share of the amount, if any, by which,
the income of the Plan during the Term of the Plan has exceeded all
payments made from the Plan to or for the benefit of the Participants.
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5.3 Subject to the provisions of this Plan, the Common Shares purchased on
behalf of each Participant shall vest on the following basis:
(a) 30% thereof shall vest on each of January 2, 2001 and January
2, 2002; and
(b) 40% thereof shall vest on January 2, 2003.
5.4 If the employment of a Participant is terminated by reason of the
death, Normal Retirement or Permanent Disability of such Participant,
all Unvested Shares purchased on behalf of such Participant pursuant to
section 5.1 shall immediately become vested in that Participant. Such
Participant must take immediate delivery of the share certificate(s)
evidencing all Vested Shares, or the cash equivalent pursuant to
section 7.1 hereunder, and thereafter shall have no further entitlement
under this Plan.
5.5 If the employment of a Participant is terminated for any reason
(including, but not limited to, termination without cause) other than
death, Normal Retirement or Permanent Disability, all rights of such
Terminated Participant with respect to all Unvested Shares shall
terminate on the Terminated Participant's Termination Date. Thereafter,
such Terminated Participant shall have no further entitlement under the
Plan and shall cease to be a beneficiary under the Plan. The Unvested
Shares so forfeited will be reallocated by the Trustee on a pro rata
basis to the remaining Participants. The Terminated Participant must
deliver a written direction to the Trustee within ninety (90) days of
such Termination Date to either: (i) take all steps necessary to
convert such Terminated Participant's Vested Shares to cash and to
forward a cheque for the amount of cash so realized to such Terminated
Participant; or (ii) deliver share certificates to the Terminated
Participant evidencing such Vested Shares. In the event that a
Terminated Participant fails to deliver such notification with such
ninety (90) days, and after receipt of written notice by the Company,
the Trustee shall issue and deliver share certificates to the
Terminated Participant evidencing such Vested Shares. Notwithstanding
the foregoing, if all Participants are terminated (either pursuant to
this section 5.5 and/or section 5.4 above) during the Term of the Plan,
then all Unvested Shares shall immediately vest and shall be
redistributed to all individuals who were Participants as of the
Commencement of the Plan (other than those who have been terminated
pursuant to section 5.4 above whose Unvested Shares would have
thereupon become vested) on a pro-rata basis on the basis of the
original allocation of Common Shares to the Participants at the
Commencement of the Plan (with the necessary adjustments having regard
to section 5.4).
5.6 Notwithstanding anything else contained herein, if there is:
(a) a consolidation, merger or amalgamation of Cott with or into
any other corporation whereby the voting shareholders of Cott
immediately prior to such event receive less than 50% of the
voting shares of the consolidated, merged or amalgamated
corporation;
(b) a sale by Cott of all or substantially all of Cott's
undertakings and assets; or
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(c) a proposal by or with respect to Cott being made in connection
with a liquidation, dissolution or winding-up of Cott,
all of each Participant's Unvested Shares shall immediately vest in
that Participant.
5.7 If 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 Sections 93(1)(b) or (c) thereof
(a "Qualifying Take-over Bid"), is made for the Common Shares, all
Unvested Shares shall immediately vest conditional upon successful
completion of such Qualifying Take-over Bid and each Participant shall
have the right to tender such Unvested Shares to the Qualifying
Take-over Bid by notice of guaranteed delivery. If a Qualifying
Take-over Bid is made for the Common Shares, and such Qualifying
Take-over Bid does not permit tendering by notice of guaranteed
delivery, Cott shall, on consummation of such a Qualifying Take-over
Bid, subject to compliance with all applicable laws and regulations,
repurchase each Unvested Share held by the Participants at a purchase
price equal to the offer price pursuant to the Qualifying Take-over
Bid. Cott will take all reasonable steps necessary to facilitate or
guarantee the exercise by the Participants of the rights hereinbefore
described.
5.8 Until delivered to a Participant pursuant to the provisions of this
Plan, Common Shares acquired on behalf of a Participant shall be held
for safekeeping by the Trustee as agent for such Participant.
6.0 ACCOUNTING AND REPORTING
6.1 An account will be maintained for each Participant in which there will
be recorded the number of Vested Shares and all contributed amounts
allocated to such Participant, the number of Vested Shares and such
other information as may be necessary or advisable in connection with
the administration of this Plan.
6.2 A Participant will be provided with a summary of his or her account on
an annual basis.
7.0 WITHDRAWAL AND LIMITATION ON UNVESTED SHARES
7.1 A Participant may, at any time and from time to time by notice to the
Trustee, in the form set out in the attached Schedule A, request: (a)
delivery to him or her of certificates representing such Participant's
Vested Shares and securities of Cott, if applicable; or (b) a cheque
representing the proceeds of a sale of any of such Participant's Vested
Shares.
In respect of the election referred to in Section 7.1(b) above, the
Trustee shall sell such number of Vested Shares as are referred to in
the notice on The Toronto Stock Exchange at the prevailing market price
of the Common Shares at the time and at the date of the sale of the
Common Shares.
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7.2 Vested Shares are not subject to any restriction concerning their use
other than pursuant to Cott's policies respecting the trading of the
Common Shares by Employees or by law. A Participant shall not, directly
or indirectly, assign, transfer or encumber in any manner whatsoever
any rights in and to Unvested Shares held on such Participant's behalf
under this Plan.
7.3 Only whole Vested Shares will be delivered. If a Participant is
entitled to a fraction of a Vested Share, such entitlement will be
satisfied by the cash payment to such Participant of the then current
market value of such fraction of a share.
8.0 DIVIDENDS AND OTHER RIGHTS
8.1 The Trustee shall use all cash dividends received by it in a year in
respect of all Vested Shares and Unvested Shares held by it on behalf
of any Participant to purchase additional Common Shares to be allocated
(on a fully vested basis) to Participants, pro rata, as of the date on
which the dividend was paid. Stock dividends received by the Trustee in
a year in respect of all Vested Shares and Unvested Shares held by it
on behalf of any Participant shall be allocated to that Participant on
a fully vested basis, in the same year as such dividends are received
by the Trustee.
8.2 If the Trustee becomes entitled to subscribe for additional shares or
securities of Cott by virtue of the Trustee being the registered holder
of Common Shares, the Trustee, if so requested by any Participant and
if the Participant has provided the Trustee with all amounts necessary
to exercise such subscription rights with respect to the Common Shares
then held by the Trustee on behalf of such Participant, shall exercise
such rights in the name of the Trustee on behalf of such Participant.
Upon issuance of the additional shares or securities, such additional
shares or securities so received by the Trustee on behalf of the
Participant shall be fully vested in the Participant.
8.3 The Trustee may attend all meetings of shareholders of Cott which it
shall be entitled to attend by virtue of being the registered holder of
Common Shares and shall vote the Common Shares held on behalf of each
Participant at every such meeting in such manner as each Participant
shall have directed in writing, and in default of any such direction,
the Trustee shall refrain from voting the Vested Shares and Unvested
Shares. The Trustee will, if so required by any Participant, execute
all proxies necessary or proper to enable the Participant at such
meeting in place of the Trustee.
9.0 TAX MATTERS
9.1 If, for any reason whatsoever, a Participating Company becomes
obligated to withhold and/or remit to any applicable taxation authority
(whether domestic or foreign) any amount in connection with this Plan
in respect of a Participant, then the Participating Company shall
provide written notice of such obligation to the Participant and shall
make the necessary arrangements, as acceptable to the Participating
Company, in connection with the amount which must be withheld and/or
remitted.
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9.2 Upon the Vesting Dates of the Common Shares, the Trustee shall provide
Cott with written notice of the amount vested and the market value of
the Vested Shares. Cott shall be responsible for reporting the
Participant's vested amount as income to the appropriate taxation
authorities. The Trustee shall be responsible for reporting the
Participant's capital gains on the Vested Shares after the Vesting
Dates and any paid dividends (pursuant to Article 8 herein) to the
Canadian taxation authorities.
10.0 AMENDMENT OF PLAN AND TRUST
10.1 From time to time the Committee or the board of directors of Cott may
amend any provisions of this Plan and any provisions of the Trust and
the Committee or the board of directors of Cott may terminate this Plan
at any time, but no amendment of this Plan or the Trust, or any
termination of this Plan, shall divest any Participant of his or her
entitlement to Common Shares as provided in Article 5 or of any rights
a Participant may have in respect of the Common Shares, without the
prior written consent of the Participant. No amendment of this Plan
shall affect the rights and duties of the Trustee without its prior
written consent.
11.0 GENERAL
11.1 The Trustee shall be entitled to rely on a certificate of the CEO, the
Senior Vice President of Human Resources or the Corporate Secretary of
Cott as to any of the following matters:
(a) when the employment of a Participant with a Participating
Company has terminated; and
(b) the date of death, Normal Retirement or Permanent Disability
of any Participant.
11.2 The Committee or the board of directors of Cott may by resolution make,
amend or repeal at any time and from time to time such regulations not
inconsistent herewith as it may deem necessary or advisable for the
proper administration and operation of this Plan. In particular, the
board of directors of Cott may delegate to any officers of a
Participating Company such administrative duties and powers as it may
see fit with respect to this Plan.
11.3 Two officers of Cott, one of whom must be the CEO, the Senior Vice
President of Human Resources or the Corporate Secretary, are hereby
authorized to sign and execute all instruments and documents and do all
things necessary or desirable for carrying out the provisions of this
Plan.
11.4 This Plan and the Trust are established under the laws of the Province
of Ontario and the rights of all parties and the construction and
effect of each and every provision of this Plan and the Trust shall be
according to the laws of the Province of Ontario and the laws of Canada
applicable therein.
11.5 This Plan and the Trust shall enure to the benefit of and be binding
upon Cott, its successors and assigns. The interest hereunder of any
Participant shall not be transferable or alienable by such Participant
either by assignment or in any other manner whatsoever
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and, during his or her lifetime, shall be vested only in him or her,
but, upon such Participant's death, shall enure to the benefit of and
be binding upon the personal representatives of the Participant.
11.6 Any questions of interpretation of the Plan will be submitted to the
Committee for resolution. Any resolution of such a question of
interpretation of the Plan by the Committee shall be final in all
respects, and in particular, shall not be subject to any appeals
whatsoever.
11.7 This Plan is an "Employer Benefit Plan" for the purposes of the Act.
Executed on the 1st day of November, 2000 with an effective date of the
3rd day of January, 1999.
COTT CORPORATION
PER: /s/ Colin Walker
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TITLE Senior Vice-President, Human Resources
BCB USA CORP.
PER: /s/ Mark Halperin
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TITLE Senior Vice-President, Secretary
COTT BEVERAGES LIMITED
PER: /s/ Raymond P. Silcock
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TITLE Director
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SCHEDULE A
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