EXHIBIT 10.20
EMPLOYMENT AGREEMENT
Cott Corporation
000 Xxxxx'x Xxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Tel (000) 000-0000
Fax (000) 000-0000
August 20, 1998
PERSONAL AND CONFIDENTIAL
Mr. Xxxxx Xxxxxx
000 Xxxxxxxx Xxxxxxxx
Xxxxxx, Xxxxxxx
X0X 0X0
Dear Colin:
I am very pleased to offer you the position of Vice President, Human Resources
effective September 8, 1998. This position will report directly to myself and
will be based at the corporate offices located at 000 Xxxxx'x Xxxx Xxxx,
Xxxxxxx, Xxxxxxx.
While this letter will outline some of the terms and conditions of your
employment with Cott Corporation, please note that this is not a contract of
employment or a promise of employment for any specific term. In addition, this
offer is conditional on receiving the approval of the Board of Directors.
Your starting base salary will be $235,000 per annum paid every two weeks. You
will be provided with a car allowance of $11,700 per annum, also paid every two
weeks. Performance and salary are reviewed on an annual basis in April. You will
be provided with an initial grant of 40,000 stock options. The strike price will
be equal to the closing price of Cott Common Shares on the Toronto Stock
Exchange on the last day on which such shares are traded immediately before your
first day of employment. In addition, you will be considered for annual option
grants along with other Cott senior executives.
In 1998, you are entitled to four (4) weeks of paid vacation, pro-rated for the
percentage of 1998 during which you will be employed by Cott, up to a maximum of
20 working days. Regular annual entitlement of four (4) weeks vacation will
commence in 1999. You are encouraged to take your vacation in the calendar year
in which it is earned. All earned vacation must be taken by December 31st of the
year following the one in which it is earned, otherwise it may be forfeited. If
you should leave the Company, the value of
any unearned vacation time taken by you will be deducted from your final pay.
The fiscal 1999, you will be entitled to participate in the bonus plan as it
currently exists.
This plan would entitle you to a bonus of up to 40% of your fiscal 1999 salary,
dependent upon Cott's financial performance. This plan is subject to change
annually at the sole discretion of Cott.
For fiscal 1999 only, you will be guaranteed a bonus of 40% pro-rated for the
percentage of this fiscal year in which you will be employed by Cott. In
addition, you will also be guaranteed a bonus of up to $62,500 to compensate you
for that portion of the bonus you have earned for the 12 month period ending
September 30, 1998 which is not paid to you by your previous employer. The
bonuses will be paid on the later of signing of this letter by you and receipt
of Board approval and 25% of the after tax proceeds of such bonuses must be used
to purchase Cott stock within 30 days of the date on which bonuses are paid.
You will be eligible to participate in the Employee Benefits Plan, which
includes medical, dental, short term and long term disability, life and optional
life benefits. Details of the plan will be provided to you upon commencement of
employment. Our benefits plan has a 3-month waiting period, which we are
prepared to waive at your request.
Details on Cott's benefits will be sent to you under separate cover for your
perusal. Additional information can be provided to you as you become eligible.
In the event that your employment is terminated by Cott for any reason other
than just cause, Cott will provide you with a severance package equal to 24
months base salary, bonus, car allowance and benefits (excluding long and short
term disability coverage and the out-of-country benefits). This payment will be
inclusive of any amounts to which you would otherwise be entitled at law and no
other compensation or payments will be made to you in such event. In addition,
the payment will be subject to your signing a release in form and content
satisfactory to Cott at such time.
Finally, upon the commencement of your employment you will be required to sign a
confidentiality and non-competition covenant in favour of Cott on the terms and
conditions set out in Appendix I to this letter.
Colin, I am excited about you joining the Cott senior management team. Working
with Cott as a consultant the past year you have demonstrated your capabilities
and expertise and proven your commitment and fit with our organization. Many
exciting challenges and opportunities lie ahead and we look forward to your
continued contribution towards the achievement of our goals.
Yours very truly,
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx, III
President and Chief Executive Officer
PEF:gv
cc: Human Resources
I accept this offer and the terms identified herein.
/s/ X. X. Xxxxxx Sept 1, 1998
--------------------- ------------------
Xxxxx Xxxxxx Date
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 out 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 of 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 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 24
months after the termination of this Agreement or the Executive's employment
(regardless of the reason for such termination), either individually or in
partnership, jointly or in conjunction with any other 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 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 12 month period immediately preceding such
time.
(b) For the purposes of this Agreement:
(i) "Territory" shall mean Canada, the United States and the
United Kingdom;
(ii) "Business" shall mean the business of manufacturing, selling
and distributing non-alcoholic beverages.
(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.
4.5 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 modification 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 and 4.5
shall survive the termination of this Agreement or the Executive's employment
hereunder (regardless of the reason or such termination).
