Exhibit 10.2
THIS MANAGEMENT AGREEMENT DATED AS OF THE 1ST DAY OF JANUARY, 2002
BETWEEN:
SPARKLING SPRING WATER HOLDINGS LIMITED
(hereinafter "SSW")
OF THE FIRST PART
AND
CF CAPITAL CORPORATION
(hereinafter "CF")
OF THE SECOND PART
AND
G. XXXX XXXXXXX
(hereinafter "Krediet")
OF THE THIRD PART
AND
X. XXXXXXX SCHICKLI
(hereinafter "Schickli")
OF THE FOURTH PART
WHEREAS CF has provided management services to SSW pursuant to a
management agreement originally dated December 16, 1993 and as amended and
restated January 12, 1996 (collectively the "Original Agreement").
AND WHEREAS the parties hereto wish to terminate the Original Agreement
and enter into a new management agreement containing the terms and conditions
set out below.
AND WHEREAS Krediet and Schickli are principals of CF.
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NOW THEREFORE IN CONSIDERATION of the premises and mutual covenants and
agreements herein contained and the sum of ten dollars ($10.00) now paid by each
of the parties to the other (the receipt and sufficiency whereof is hereby
acknowledged) the parties covenant and agree as follows:
1. INTERPRETATION
1.1 Words importing the singular include the plural and vise versa and
words including gender include all genders.
1.2 Titles or headings contained herein are intended solely for
convenience, are not intended to be a full or accurate description of
the context thereof and shall not be considered part of this Agreement.
1.3 The Original Agreement is hereby terminated as of midnight December 31,
2001 and the parties hereto acknowledge and agree that all rights, obligations,
liabilities, and benefits arising from the Original Agreement are hereby
released and are of no further effect.
2. MANAGEMENT SERVICES
2.1 CF agrees to provide management services to SSW, including, without
restricting the generality of the foregoing, managing the operations of SSW and
negotiating such contracts, financial arrangements and other arrangements and
performing such other services as may be directed from time to time by the Board
of Directors of SSW, and to conduct no other business.
2.2 The parties acknowledge nothing in this Agreement shall be
construed as a delegation of any of the duties or powers of the Board of
Directors of SSW to manage the business and affairs of SSW and all such powers
and duties, including the policy and decision making powers, are hereby
reserved.
2.3 SSW and CF agree that Krediet, as Chairman and Chief Executive
Officer, and Schickli, as President and Chief Operating Officer, shall be the
individuals who shall provide, on behalf of CF, the services to SSW described
above. Krediet shall devote the majority of his time and attention to the
affairs of SSW and ensure he uses his best efforts to promote the best interests
of SSW, and covenants and agrees that SSW shall be his principal business
interest; It being understood and acknowledged that, subject to Section 2.4
hereof, Krediet has and may continue to have other investments in which he
undertakes a passive function. Schickli shall devote his entire time and
attention during business hours to the affairs of SSW and shall use his best
efforts to promote the best interests of SSW; It being acknowledged that
Schickli currently and may continue to hold the office of a director of
companies including and other than SSW.
2.4 Neither CF, Krediet nor Schickli, shall, directly or indirectly,
pursue, participate, provide advice with respect to or have any interest in any
transaction involving the
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manufacture, bottling, sale or distribution of bottled water unless such
participation or interest shall have been first authorized by the compensation
committee of SSW.
3. FEES
3.1 In consideration of CF's services to SSW hereunder SSW agrees to pay to
CF:
BASE FEE:
(a) a base fee of one million dollars in US funds
(US$1,000,000.00) for services rendered by CF to SSW during
the fiscal year ending December 31, 2002;
BONUS:
(b) CF will be eligible to earn an additional cash bonus of up to
a maximum of five hundred thousand US dollars (US$500,000.00)
for the fiscal year ended December 31, 2002 as follows:
(i) $166,666.00 - should SSW achieve EBITDA of at least
$28,168,000.00 after corporate and overhead expenses;
(ii) $166,667.00 - should SSW achieve net new rentals of
at least 14,504.00; and
(iii) $116,667.00 - to be a discretionary bonus to be
awarded at the discretion of the compensation
committee of SSW;
Provided that for the purposes of this Section 3.1, the definition of EBITDA and
net new rentals shall be consistent with the terms used by SSW historically and
as are presented in the quarterly Board Books prepared and delivered to the
Board of Directors of SSW. The parties agree that should SSW undertake further
acquisitions during the 2002 fiscal year, that the thresholds above for bonuses
shall be adjusted accordingly to take into account the effect of such
acquisitions and for that purpose, the compensation committee of SSW and CF
shall negotiate in good faith to determine the appropriate adjustment to such
thresholds.
3.2 PAYMENT
The base fee shall be paid during the 2002 fiscal year in such manner and at
such times as is reasonably acceptable to the parties hereunder. The bonus shall
be paid as soon as reasonably possible after the compensation committee has
confirmed whether SSW has achieved the thresholds set out in Section 3.1(b)
above.
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3.3 EXPENSES
In addition to the fees described in Section 3.1 hereof, SSW shall reimburse CF
for all reasonable out of pocket disbursements and office expenses incurred by
CF from time to time in the performance of its services pursuant to this
Agreement.
4. CONFIDENTIALITY/RESTRICTIVE COVENANTS
4.1 CF, Krediet and Schickli recognize and acknowledge that in the
course of carrying out, performing and fulfilling their respective obligations
to SSW hereunder, each will have access to and will be entrusted with
information that would reasonably be considered confidential to SSW, the
disclosure of which to competitors of SSW or to the general public, will be
highly detrimental to the best interests of SSW. Such information includes,
without limitation, trade secrets, know how, marketing plans, cost figures,
client lists, software and information relating to employees, suppliers and
persons in contractual relationships with SSW. Except as may be required in the
course of carrying out their respective hereunder, CF, Krediet and Schickli
covenant and agree that they will not disclose, for the duration of this
Agreement or anytime thereafter, any of such information to any person other
than to the directors, officers or employees of SSW that a have a need to know
such information, nor will they use, nor exploit directly, or indirectly, the
same information for any purpose other than for the benefit of SSW. Without
limiting the generality of the foregoing, neither CF, Krediet or Schickli shall
for the duration of this Agreement and for a period of three years thereafter,
have any interest or invest in any corporation, joint venture or any other
enterprise, directly or indirectly, involved in the manufacturing, bottling,
sale or distribution of bottled water or the rental of coolers in any of the
markets served by SSW during the term of this Agreement or at the date of
termination.
5. TERM RENEWAL AND TERMINATION
5.1 The initial term of this Agreement ("Initial Term") is for one year
commencing January 1, 2002 and ending on December 31, 2002. Unless renewed in
accordance with the terms of this Agreement, Initial Term shall expire on
December 31, 2002;
5.2 This Agreement shall be automatically renewed for a further term of
one year upon the expiration of the Initial Term, unless at least 30 days prior
to the expiration of the Initial Term, either CF or SSW notifies the other in
writing that the Agreement is to terminate on the expiration of the Initial
Term. Should the Initial Term be renewed as aforesaid (a "Renewal Term") this
Agreement shall continue on a year to year basis thereafter provided that either
party may terminate this Agreement during any Renewal Term upon at least 30 days
prior written notice and in such case, the Agreement will terminate on December
31st in the year in which notice to terminate is given.
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5.3 The base fee and bonus may be increased during any Renewal Term
only with the consent of the compensation committee of SSW. The parties agree to
negotiate in good faith to determine such increase, if any, and to determine the
applicable thresholds for a Renewal Term to enable CF to earn its bonus in
accordance with Section 3.1(b).
6. MISCELLANEOUS
6.1 No amendment of this Agreement shall be binding unless it is
executed in writing by each of the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provision hereof nor shall such waiver constitute a continued waiver
unless otherwise expressly provided. For greater certainty, any amendment to
this Agreement and any waiver by SSW of any provision of this Agreement must be
approved by the compensation committee of SSW.
6.2 SSW hereby expressly acknowledges and agrees that additional
non-cash management options or other remuneration consistent with industry
standards may be granted from time to time to Krediet and Schickli and entering
into this Agreement shall not preclude future negotiations and payments of such
options or incentives. Such option or other remuneration granted to Krediet or
Schickli shall be at the discretion of the compensation committee of SSW and
shall be at a price no less than fair market value at the time of such grant.
6.3 This Agreement shall be binding upon and enure to the benefit of
the parties hereto in each of their respective successors, heirs, executors,
administrators and assigns.
6.4 This Agreement shall be governed by and construed in accordance
with the laws of the Province of Nova Scotia.
6.5 This Agreement may be executed in one or more counterparts each of
which shall be deemed to be an original and all of which when taken together
shall constitute one and the same instrument.
6.6 All notices given pursuant to this Agreement shall be in writing
and given by courier, facsimile or personal delivery as follows:
(a) To CF, Krediet and Schickli at:
CF Capital Corporation
0000 Xxxxxxxxx Xxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
And to SSW at:
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Sparkling Spring Water Holdings Limited
c/o 00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Fax: (000) 000-0000
Attention: Chair of the Compensation Committee
With a copy to:
Xxxxxxx XxXxxxxx Stirling Scales
Xxxxx'x Wharf, Tower One
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX X0X 0X0
Fax: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx, Secretary
Or to such other address or fax number of a party as that party may give notice
to all other parties from time to time. Notices shall be deemed to be given upon
receipt if sent by courier or hand delivery and if sent by fax on the day the
transmission is received if it is received before 5:00 p.m. or on the next
business day if the fax is received after 5:00 p.m. in the recipient's time
zone.
6.7 Time shall of the essence in this Agreement.
6.8 For greater certainty, each of Krediet and Schickli acknowledge and
confirm that they owe fiduciary duties to SSW (notwithstanding that they are
compensated for their services by CF and not SSW), and CF acknowledges and
confirms that the powers granted to CF hereunder may not be delegated to
individuals other than Krediet or Schickli without the prior written consent of
the Chair of the Compensation Committee of SSW.
7. ARBITRATION
7.1 In the event any disagreement arises between the parties hereto
with reference to this Agreement, any matter arising hereunder or any matter
arising in connection herewith in respect of which the parties cannot agree,
then every such disagreement may be submitted by any party hereto to arbitration
in Halifax, Nova Scotia pursuant to the provisions of the Commercial Arbitration
Act (Nova Scotia). The party desiring arbitration shall give written notice to
the other parties hereto setting forth the matter or matters to arbitrate. A
reference to arbitration shall be made to one arbitrator who shall be mutually
agreeable to all parties or, if they are unable to agree, to a single arbitrator
appointed and acting in accordance with the provisions of the Commercial
Arbitration Act (Nova Scotia). The decision of the arbitrator, where,
practicable, shall be within (1) month of the appointment of the arbitrator. The
decision of the arbitrator shall be final and binding upon the parties with the
cost of the arbitrator to be borne equally by CF and SSW.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the day and year first above written.
SIGNED, SEALED AND DELIVERED ) SPARKLING SPRING WATER
in the presence of: ) HOLDINGS LIMITED
)
)
) Per: /s/ Xxx Xxxxxxx
) -----------------------------
) Chairman, Compensation
) Committee
)
) CF CAPITAL CORPORATION
)
)
) Per: /s/ X. Xxxxxxx Schickli
) -----------------------------
) President
)
) G. XXXX XXXXXXX
)
)
) Per: /s/ G. Xxxx Xxxxxxx
) -----------------------------
)
) X. XXXXXXX XXXXXXXX
)
)
) Per: /s/ X. Xxxxxxx Schickli
) -----------------------------
