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EXHIBIT 10.11
COTT CORPORATION
CANADIAN EMPLOYEE SHARE PURCHASE PLAN
1. PURPOSE AND ESTABLISHMENT OF THE PLAN
1.1 Cott hereby establishes a plan to be known as "The Cott Corporation
Canadian Employee Share Purchase Plan" (the "Plan"). The Plan has been
established for the following purposes:
(a) to encourage Employees to invest in Common Shares;
(b) to facilitate such investment by providing the means whereby
Common Shares can be acquired through payroll deductions and
held for safekeeping by the Trustee on behalf of Participants;
and
(c) to allow Participating Companies to make contributions on
behalf of Participants.
2. DEFINITIONS
2.1 "ACT" means the Income Tax Act (Canada), as amended;
2.2 "COTT" means Cott Corporation, a corporation amalgamated under the laws
of Canada.
2.3 "COMMITTEE" means the Human Resources and Compensation Committee of the
board of directors of Cott.
2.4 "COMMON SHARES" means whole and fractional common shares in the capital
of Cott.
2.5 "CONTRIBUTION PERIOD" means the period in any calendar year during
which a Participant begins participation in the Plan.
2.6 "EMPLOYEE" means a full-time or regular part-time employee of any of
the Participating Companies.
2.7 "GROUP REGISTERED RETIREMENT SAVINGS PLAN" means the Cott group
registered retirement savings plan currently administered by the
Trustee in respect of the Plan.
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.
2.9 "PARTICIPANT" means an Employee who is a resident of Canada and elects
to participate in the Plan pursuant to Section 3.1 hereof and/or an
Employee who has not so elected but on whose behalf contributions to
the Plan have been made by Participating Companies pursuant to Section
4.2 hereof, and in the case of the death of a Participant, includes the
personal representative of the Participant.
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2.10 "PARTICIPATING COMPANIES" means Cott 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 "TERMINATION DATE" in respect of a Terminated Participant's termination
pursuant to Section 6.6 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).
2.13 "TERMINATED PARTICIPANT" means a Participant who has been terminated in
accordance with Section 6.6 of the Plan.
2.14 "TRUST" means the "Canadian Employee Share Purchase Plan Trust" as
embodied in a trust agreement entered into between Cott and the
Trustee.
2.15 "TRUSTEE" means The Canada Trust Company or its successor for the time
being in the trusts created hereby and by the Trust.
2.16 "UNVESTED SHARES" means those Common Shares held by the Trustee under
the Plan for the benefit of particular Participants that have not
vested for the purposes of the Plan.
2.17 "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. PARTICIPATION
3.1 Employees may elect to participate in the Plan by signing and
delivering to Cott an election and authorization in the form attached
hereto as Schedule A which shall:
(a) indicate the amount (being between 1.5% and 3% of the
bi-weekly base salary of the Participant, after applicable
statutory deductions) which such Participant desires to apply
to the purchase of Common Shares and authorizing the payroll
deduction of such amount on a bi-weekly basis; and
(b) authorize Cott and/or the Trustee to cause Common Shares to be
acquired on behalf of the Participant on or about the last
trading day of each month and to cause the Common Shares so
acquired to be held for safekeeping by the Trustee as agent
for the Participant.
3.2 On or about the last trading day in each month, funds contributed to
the Plan pursuant to Section 3.1 shall be used by the Trustee 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 purchase
of Common Shares.
3.3 An election to participate in the Plan may be delivered only once in
each of Cott's fiscal years. If a Participant ceases to participate in
the Plan at any time during Cott's fiscal
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year, such Participant shall not be entitled to resume participation in
the Plan until the commencement of the following fiscal year.
4. CONTRIBUTIONS BY PARTCIPATING COMPANIES
4.1 Concurrently with each contribution by a Participant under Section 3.1
above, the Participating Companies will cause to be contributed to the
Trustee for the benefit of such Participant, an amount equal to
sixty-six and two-thirds percent (66-2/3%) of such Participant's
contribution, or such other amount which may be greater than or less
than sixty-six and two-thirds percent (66-2/3%) as the Committee may,
from time to time and at any time, designate to be contributed by the
Participating Companies to the Trustee for the benefit of a
Participant.
4.2 In addition to contributions made by Participating Companies under
Section 4.1 hereof, Participating Companies may, with the approval of
the Committee, make contributions or additional contributions in
respect of any one or more Participants. The Committee may attach any
conditions or requirements, including any conditions or requirements
respecting the vesting of Common Shares acquired with such additional
contributions, as the Committee may determine in its absolute
discretion in respect of such contributions or additional
contributions.
4.3 Notwithstanding the provisions of Sections 4.1 and 4.2, if a
Participant forfeits his or her Unvested Shares in accordance with
Sections 6.3, 6.4 or 6.6, all rights of such Participant with respect
to such forfeited Unvested Shares shall immediately terminate. The
Unvested Shares so forfeited will be reallocated by the Trustee to all
or a portion of the remaining or future Participants in satisfaction of
the current or future obligations of the Participating Companies to
make contributions under the Plan in accordance with Sections 4.1 or
4.2.
4.4 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.
5. ACCOUNTING AND REPORTING
5.1 An account will be maintained for each Participant in which there will
be recorded the deposits made to the Plan by the Participant and by the
Participating Companies and the number of Common Shares held on his or
her behalf. This account shall separately denote the Participant's
Vested Shares and Unvested Shares. The account shall also contain such
other information as may be necessary in connection with the
administration of the Plan.
5.2 The Trustee will provide to each Participant on a quarterly basis a
summary of such Participant's account and a calculation of the average
acquisition cost of Common Shares held on his or her behalf.
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6. VESTING
6.1 All Common Shares acquired by the Trustee under the Plan with funds
contributed to the Plan by a Participant shall vest immediately upon
acquisition by the Trustee for the benefit of such Participant. The
Trustee shall hold such shares for safekeeping as agent for the
Participant until delivered pursuant to the provisions of this
Article 6 or Article 7 hereof.
6.2 Subject to the provisions of this Article 6 hereof, and unless
otherwise expressly determined by the Committee (prior to the day on
which the first contribution has been made to the Plan in each Cott
fiscal year by a Participating Company), the Common Shares acquired by
the Trustee under the Plan with funds contributed to the Plan by the
Participating Companies for the benefit of a Participant shall vest in
him or her on the following basis:
(a) 30% thereof shall vest on the first business day of each of
the first and second calendar years that follow the end of the
Contribution Period; and
(b) 40% thereof shall vest on the first business day of the third
calendar year that follows the end of the Contribution Period.
For greater certainty, the Committee may determine different vesting
requirements for Common Shares acquired with funds contributed under
Sections 4.1 and 4.2 hereof. At the time of vesting, Common Shares will
vest at the fair market value and will be treated as employment income
at such time.
6.3 The right of a Participant in respect of Unvested Shares acquired in a
Contribution Period shall cease and terminate if such Participant has
withdrawn from the Plan any of the Common Shares acquired by the
Trustee with funds contributed to the Plan by the Participant during
that same Contribution Period. Pursuant to Section 4.3 above, the
Unvested Shares so forfeited will be reallocated by the Trustee to all
or a portion of the remaining or future Participants in satisfaction of
the current or future obligations of the Participating Companies to
make contributions under the Plan in accordance with Sections 4.1 or
4.2. This Section 6.3 does not apply where the Participant has
withdrawn Common Shares from the Plan for the sole purpose of
contributing such Common Shares to the Group Registered Retirement
Savings Plan.
6.4 The right of a Participant in respect of Unvested Shares purchased for
that Participant's account in any Contribution Period shall cease and
terminate if such Participant has withdrawn from the Group Registered
Retirement Savings Plan, during such Contribution Period. Pursuant to
Section 4.3 above, the Unvested Shares so forfeited will be reallocated
by the Trustee to all or a portion of the remaining or future
Participants in satisfaction of the current or future obligations of
the Participating Companies to make contributions under the Plan in
accordance with Sections 4.1 or 4.2.
6.5 If the employment of a Participant is terminated by reason of death,
Normal Retirement or Permanent Disability of the Participant, all
Unvested Shares of such Participant shall immediately become vested in
that Participant. Thereafter, such Participant shall have no
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further entitlement under the Plan and such Participant or his or her
legal personal representative must take immediate delivery of all
Vested Shares.
6.6 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. Pursuant to
Section 4.3 above, the Unvested Shares so forfeited will be reallocated
by the Trustee to all or a portion of the remaining or future
Participants in satisfaction of the current or future obligations of
the Participating Companies to make contributions under the Plan in
accordance with Sections 4.1 or 4.2. 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 (net of all fees
and expenses) 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 within 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.
6.7 Notwithstanding anything else contained herein,
(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
(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.
6.8 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 paragraphs 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.
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Cott will take all reasonable steps necessary to facilitate or
guarantee the exercise by the Participants of the rights hereinbefore
described.
6.9 Until delivered pursuant to the provisions of this Article 6 or Article
7 hereof, Vested Shares allocated to a Participant shall be held for
safekeeping by the Trustee as agent for such Participant.
7. WITHDRAWAL
7.1 A Participant may, at any time and from time to time, by completing and
delivering a withdrawal notice in the form of Schedule B hereto,
request delivery to him or her of certificates or cash equivalent for
such Participant's Vested Shares. Other than pursuant to the policies
of Cott respecting the trading of the Common Shares by Employees or by
law, Vested Shares are not subject to any restrictions concerning their
use.
7.2 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. DIVIDENDS AND OTHER RIGHTS
8.1 The Trustee shall distribute all cash dividends and stock dividends
received by it in a year in respect of all Vested Shares and Unvested
Shares held by it on behalf of the Participants to the Participants in
the same year as such dividends are received by the Trust. 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 Common
Shares or other securities of Cott by virtue of the Trustee being the
registered holder of Vested Shares or Unvested Shares, the Trustee
shall forthwith irrevocably transfer such subscription rights with
respect to such Common Shares then held by the Trustee on behalf of the
Participants to such Participants.
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 to vote at
such meeting in place of the Trustee.
9. AMENDMENT/TERMINATION
9.1 A Participant may terminate participation in the Plan at any time by
notice in writing to Cott.
9.2 The Committee may terminate the Plan at any time.
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9.3 From time to time the Committee may amend any provisions of the Plan
and any provisions of the Trust, but no amendment of the Plan or the
Trust, or any termination of the Plan, shall divest any Participant of
his or her entitlement to Common Shares as provided in Article 6 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
the Plan shall affect the rights and duties of the Trustee without its
prior written consent.
10. GENERAL
10.1 The Plan is 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 the Plan shall be according to the laws of the
Province of Ontario and the federal laws of Canada applicable therein.
10.2 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;
(b) the date of death, Normal Retirement or Permanent Disability
of any Participant;
(c) when an Employee is deemed to be a Participant for the
purposes of the Plan; and
(d) the vesting period of any Common Shares granted to a
Participant under the Plan.
10.3 The Committee may make, amend and 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
the Plan. In particular, the Committee may delegate to any officer of a
Participating Company such administrative duties and powers as it may
see fit.
10.4 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.
10.5 The 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 and, during his
or her lifetime, shall be vested only in him or her, but shall enure to
the benefit of and be binding upon the legal personal representatives
of the Participant.
10.6 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.
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10.7 This Plan is an "employee benefit plan" for the purposes of the Act.
DATED as of the 2nd day of October, 2000, with an effective date of January 2,
2001.
COTT CORPORATION
PER: /s/ Colin Walker
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PER: /s/ Mark Halperin
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SCHEDULE A
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SCHEDULE B