Exhibit 10.5
April 28, 2004
Xx Xxxxx X. Xxxxx III
VIA FACSIMILE
Dear Xx Xxxxx:
RE: EMPLOYMENT ARRANGEMENTS
While we are sorry to see you leave your position as Chief Executive Officer of
Cott Corporation ("Cott"), we are pleased that you intend to continue with your
role as chairman of its board of directors. This agreement sets forth the terms
and conditions upon which you agree to continue to act as chairman of Cott's
board of directors.
CHAIRMAN
1. During the Term of this agreement (as described in paragraph 7
hereof), Cott agrees to submit your name for election to the board
of directors of Cott at each annual meeting of Cott's shareowners
and to recommend to the board of directors, or any appropriate
committee thereof, your continued appointment as a chairman of
Cott's board of directors provided that (a) you are not disqualified
by applicable law from acting as a director of Cott, (b) you are not
otherwise in breach of this agreement, (c) you were elected to
Cott's board of directors by shareowners at the most recent meeting
held for that purpose and (d) Cott has not otherwise determined that
it is not in the best interests of Cott to make such submissions or
recommendations.
2. You will devote such time and attention as Cott's board of directors
deems necessary to perform the duties of chairman of the board of
directors of Cott, such duties to be consistent with your commitment
to be an active chairman with particular involvement with customers,
investors and strategic planning.
3. Commencing in January 2005 and for so long as you remain chairman of
Cott's board of directors, you will be entitled to receive an annual
fee of $250,000, payable in bi-weekly instalments.
TERMINATION OF EMPLOYMENT
4. This agreement confirms the termination of your employment with Cott
and the employment agreement between you and Cott made as of the
10th day of December, 2002 (the "Employment Agreement") effective as
of September 1, 2004 (the "Termination Date"). You will, of course,
be entitled to your base salary, bonus and benefits earned to the
Termination Date. Effective as of September 1, 2004 this agreement
supersedes all prior agreements and arrangements between you and
Cott, whether written or verbal, and the parties hereto agree that
all such prior agreements and arrangements, including the
Page 2
Employment Agreement, are hereby terminated without further
obligation by either Cott or you. Notwithstanding the foregoing:
(a) Sections 4.1 - Confidentiality, 4.2 - Inventions, 4.3 -
Corporate Opportunities, 4.4 - Restrictive Covenants and 4.5 -
General Provisions of the Employment Agreement are hereby
incorporated by reference into this agreement and shall
continue to be in full force and effect and binding upon the
parties hereto during the term of this agreement and for such
period of time following this agreement as they would have
been in effect following the termination of the Employment
Agreement; and
(b) Cott confirms that you will be entitled to the benefits
prescribed by Subsection 3.3(e) of the Employment Agreement
for the period of time prescribed by such section during the
Term of this agreement and upon termination of this agreement.
5. Notwithstanding anything to the contrary in the Employment
Agreement, all options for common shares of Cott which have been
granted to you by Cott prior to September 1, 2004 shall vest in
accordance with the terms of such options provided for at the date
of grant.
6. The payments, benefits and entitlements set out in this letter shall
constitute your complete entitlement and Cott's complete obligation
to you regarding the cessation of your employment and the
termination of the Employment Agreement. There are no other
payments, benefits, perquisities, allowances and entitlements except
as otherwise set out in this letter. The amount paid or payable to
you by Cott pursuant to this agreement shall be deemed to include
amounts owing pursuant to the Employment Standards Act, 2000.
TERM
7. This agreement is effective as of September 1, 2004 and will
terminate on the earlier of (i) the date on which shareowners of
Cott fail to elect you as a director of Cott; (ii) the directors of
Cott (or any applicable committee thereof) fail to appoint you as
chairman of Cott's board of directors; and (iii) upon receipt of 120
days notice by either of party hereto that such party intends to
terminate this agreement. Unless otherwise agreed in writing between
Cott and you, upon expiry of the period set out herein, this
Agreement shall be terminated without further requirement of notice
and without further obligation on the part of Cott to you.
GENERAL
8. This Agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario and the laws of Canada
applicable therein and shall be treated in all respects as an
Ontario contract.
9. This Agreement shall enure to the benefit of and shall be binding
upon the parties hereto and their respective administrators,
successors and assigns.
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10. Cott and you each acknowledge and agree that they have each obtained
independent legal advice in connection with this agreement and their
further acknowledge and agree that they have read, understood and
agree with all of the terms of hereof and that they are executing
this agreement voluntarily and in good faith.
We are very pleased that you plan to continue as chairman of Cott's board of
directors. Please indicate your acceptance of this offer by signing the
acknowledgement below.
Yours truly,
COTT CORPORATION
Per: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
Per: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Acknowledged, agreed and accepted:
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx III
