September 1, 2009 WITHOUT PREJUDICE DELIVERED TO: Juan Figuereo Dear Juan, Re: Cott Corporation (“Cott”) – Termination of Employment
Exhibit 10.21
September 1, 2009
WITHOUT PREJUDICE
DELIVERED TO:
Xxxx Xxxxxxxx
Dear Xxxx,
Re: Cott Corporation (“Cott”) – Termination of Employment
We are writing to notify you that your employment with Cott is hereby terminated without cause, effective October 31, 2009. Your duties as Chief Financial Officer of Cott will cease on September 8, 2009.
Xxxx appreciates your contribution to the corporation and with a view to resolving all matters on an amicable basis, has prepared this letter agreement which sets forth the severance arrangements between Cott and you (collectively, with Schedules “1” and “2,” the “Separation Agreement and Release”):
| 1. | Date of Termination |
The effective date of termination of employment is October 31, 2009 (the “Termination Date”).
| 2. | Accrued Salary and Vacation Pay |
Subject to the terms of this Separation Agreement and Release, you will be paid your salary and accrued vacation pay to the Termination Date. These payments will be paid in a lump-sum payment during the next pay period immediately following the Termination Date.
| 3. | Severance Payment |
As outlined in your Retention, Severance and Non-Competition Plan Agreement dated May 11, 2007 (the “Retention Agreement”) and in the Amended and Restated Retention, Severance and Non-Competition Plan dated June 25, 2007 (the “Retention Plan” and together with the Retention Agreement, the “Retention Agreements”), we have agreed to pay you a lump-sum payment equal to 2 times your annual base salary, car allowance, and bonus at target. . You will receive these payments on the first pay run occurring at least five business days after the later of (a) the Termination Date and (b) the date on which this Separation Agreement and Release becomes irrevocable. Such payments will be made on the basis that you will continue to perform your duties and our agreement to make such payments will be null and void if the reason for termination is Cause or resignation without Good Reason (as such terms are defined in the Retention Agreement) before the Termination Date. We agree, however, that your compliance with any request not to come into Cott’s offices or to take on a reduced role in performance of service for Cott shall not be deemed a resignation without Good Reason.
The lump sum payment will be equal to $1,572,000, calculated as follows:
| Annual Base Salary |
$ | 385,000 | |
| Bonus at Target |
$ | 385,000 | |
| Car Allowance |
$ | 16,000 | |
| Sub-Total |
$ | 786,000 | |
| x Severance Multiple (2) |
$ | 1,572,000 |
| 4. | Pro-rated Bonus |
No later than March 15, 2010, you shall be entitled to be paid your prorated portion (i.e., 10 months) of any bonus earned for the fiscal year ending January 2, 2010, based on the attainment of the terms and targets of the Cott performance bonus plan.
| 5. | Benefits |
We confirm that, to the extent Cott may do so legally and in compliance with its benefit plans in existence from time to time, your health benefits will continue until the earlier of: (i) 24 months following the Termination Date or (ii) the date alternative employment is secured that provides comparable benefits. All other benefits will terminate effective on the Termination Date.
| 6. | Outplacement |
For a period of 12 months from the Termination Date, Cott shall pay up to $10,000 for outplacement services that will be provided to you by a third party vendor chosen by Xxxx in its sole discretion.
| 7. | Expenses |
To the extent that you have incurred any proper travel, entertainment or other business expenses, you will be reimbursed in accordance with Xxxx’s policy. All expense reports must be submitted within 30 days of your Termination Date.
| 8. | Stock Options/Share Purchase Plan/DPSP/RSP/PSU |
All of your rights with respect to vested stock options that you hold personally will continue for 60 days following the Termination Date, subject to the provisions of Cott’s Restated 1986 Common Share Option Plan as amended, and thereafter such options shall be null and void.
Your rights to unvested shares in the Performance Share Unit (PSU) Plan, will terminate effective on your Termination Date.
The Special Performance Share Unit award provided to you in 2008 will be pro-rated based on your Termination Date as follows: The prorated portion of your 2008 award of 177,798 PSU’s will be 148,165 common shares of Cott. These shares will be considered earned and vested as of the Termination Date and shall be distributed to you, less applicable taxes which will be paid with the proceeds of the sale of the appropriate number of shares, within 30 days of the Termination Date. You shall receive cash in the amount of $214,769 in lieu of common shares in satisfaction of the PSU’s awarded to you upon hiring
This is subject to, and without any limitation to, any additional rights you may have under Section 7 of the Retention Agreements or any additional rights arising under the Retention Agreements on a Change of Control during a Change of Control Window (as such terms are defined in the Retention Plan).
All other rights under Xxxx’s share purchase plans and other long-term incentive plans, including, without limitation, all rights to unvested shares under the 401k Plan, the Executive Incentive Share Purchase Plan, and Employee Share Purchase Plan shall terminate on the Termination Date in accordance with those plans. Rights under these plans that have vested as of the Termination Date will continue in accordance with and subject to the terms of the applicable plans.
| 9. | No Other Payments |
Other than as set out in Section 7 of the Retention Plan, the payments and other entitlements set out or referenced in this Separation Agreement and Release constitute your complete entitlement and Cott’s complete obligations whatsoever, including with respect to the cessation of your employment, whether at common law, statute or contract. For greater certainty, we confirm that, other than as set forth in this Separation Agreement and Release, you are not entitled to any further payment (including any bonus payments), benefits, perquisites, allowances or entitlements earned or owing to you from Cott pursuant to any employment or any other agreement, whether written or oral, whatsoever, all having ceased on the Termination Date without further obligation from Cott. All amounts paid to you pursuant to this Separation Agreement and Release shall be deemed to include all amounts owing pursuant to the Employment Standards Act, 2000 and any applicable state wage payment or wage collection law, and such payments represent a greater right or benefit than that required under the Employment Standards Act, 2000 and any applicable state wage payment or wage collection law.
| 10. | Resignation & Release |
You will resign as an officer of Cott (and any direct and indirect affiliates, subsidiaries and associated companies) with effect as of the Termination Date. In this respect, you agree to execute and deliver the Resignation Notice attached hereto as Schedule “1” and such further documentation as may reasonably be required by Xxxx, in its sole discretion, in order to effect this resignation. You agree to sign, no earlier than your last day of active employment with Xxxx, the Release Agreement in the form attached as Schedule “2” (the “Release Agreement”) to this Separation Agreement and Release and further agree that, notwithstanding anything to the contrary in the Retention Agreements, your execution without revocation of the Release Agreement is a condition precedent to you receiving any severance payments hereunder that are in excess of payments required by statute.
| 11. | Your Continuing Obligations |
| (a) | You will continue to abide by all of the provisions of your Employment Agreement through the Termination Date, and with all of the provisions of the Retention Agreements through the Termination Date and at all times thereafter following the cessation of your employment in accordance with and subject to the terms of the Retention Agreements (including the restrictive covenants set forth in Section 8 of the Retention Plan) and this Separation Agreement and Release. |
| (b) | You are required to return to Cott within five (5) business days of the Termination Date all of the property of Cott in your possession or in the possession of your family or agents including, without limitation, wireless devices and accessories, computer and |
| office equipment, keys, passes, credit cards, customer lists, sales materials, manuals, computer information, software and codes, files and all documentation (and all copies thereof) dealing with the finances, operations and activities of Cott, its clients, employees or suppliers. |
| (c) | You will agree to cooperate reasonably with Cott, and its legal advisors, at Cott’s request, direction and reasonable cost, in connection with: (i) any Cott business matters in which you were involved during your employment with Cott; or (ii) any existing or potential claims, investigations, administrative proceedings, lawsuits and other legal and business matters which arose during your employment involving Cott; (iii) effecting routine administrative compliance with respect to any regulatory requirements that were applicable to Cott during the period of your employment; and (iv) completing any further documents required to give effect to the terms set out in this letter with respect to which you have knowledge of the underlying facts. |
| (d) | You agree to indemnify and hold harmless Cott and its subsidiary companies and affiliated companies, together with its and their respective officers, directors, partners, shareholders, employees and agents, and each of its and their predecessors, successors and assigns, from and against any and all damages, taxes, penalties, interest, expenses and any other costs imposed under, in connection with, or related to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), with respect to payments and benefits provided pursuant to this Separation Agreement and Release including, but not limited to, any penalties associated with failure to report or failure to withhold. |
| 12. | Taxes |
All payments referred to in this Separation Agreement and Release will be less applicable withholdings and deductions, and you shall be responsible for all tax liability resulting from your receipt of the payment and benefits referred to in this letter, except (i) to the extent that Cott has withheld funds for remittance to statutory authorities, and (ii) to the extent provided otherwise in your Retention Agreements with respect to any Gross-Up Payment. For greater certainty, we confirm that Section 7 of the Retention Plan provides for a Gross-Up Payment in connection with any excise tax imposed under Section 4999 of the Code and not in connection with any tax, penalty or interest imposed under (or in connection with) Section 409A of the Code. In no event are you entitled to any payment from Cott with respect to any tax, penalty or interest imposed under (or in connection with) Section 409A of the Code, and in no event shall any such tax, penalty or interest be taken into account for purposes of determining the amount of any payment due under Section 7 of the Retention Agreement To the extent any severance payments due to you pursuant to the terms hereof shall be treated as deferred compensation under Code Section 409A, payment of such amount shall be delayed until the first day of the seventh month following the Termination Date, but only to the extent that such delay is necessary in order to avoid penalties under Code Section 409A with respect to payments to you as a Specified Employee, as defined in Treasury Regulations Section 1.409A-1(i) upon Separation from Service, as defined in Treasury Regulations Section 1.409A-1(h).
| 13. | General |
| (a) | Entire Agreement: Except as otherwise specified in this Agreement, this Separation Agreement and Release constitutes the entire agreement between you and Cott with reference to any of the matters herein provided or with reference to your employment or office with Cott, or the cessation thereof. All promises, representations, collateral agreements, offers and understandings not expressly incorporated in this letter agreement are hereby superseded and have no further effect. For greater certainty, your entitlement under Section 7, and your obligations under Section 8, of the Retention Plan are expressly incorporated in this letter. |
| (b) | Severability: The provisions of this letter agreement shall be deemed severable, and the invalidity or unenforceability of any provision set out herein shall not affect the validity or enforceability of the other provisions hereof, all of which shall continue in accordance with their terms. |
| (c) | Full Understanding: By signing this Separation Agreement and Release, you confirm that: (i) you have had an adequate opportunity to read and consider the terms set out herein, including the Release Agreement attached as Schedule “2” hereto, and that you fully understand them and their consequences; (ii) you have been advised, through this paragraph, to consult with legal counsel and have obtained such legal or other advice as you consider advisable with respect to this Separation Agreement and Release, including attachments; (iii) you have consulted with legal counsel regarding the application of Section 409A of the Code to the payments and benefits provided pursuant to this Separation Agreement and Release; (iv) you are signing this Separation Agreement and Release voluntarily, without coercion, and without reliance on any representation, express or implied, by Xxxx, or by any director, trustee, officer, shareholder, employee or other representative of Cott other than as set forth in this Separation Agreement and Release and the Retention Agreements; and (v) you have been provided with the 45-day consideration period and seven-day revocation period described in the attached Release Agreement. |
| (d) | Arbitration: In the event any dispute arises between you and Cott with respect to the interpretation, effect or construction of any provisions of this Separation Agreement and Release, either Cott or you may refer the matter to final and binding arbitration without right of appeal, pursuant to the United States Federal Arbitration Act, as applicable, for the disputed matters to be determined by an arbitrator that is to be mutually agreed upon, upon written notice to the other, whereupon, subject to the availability of such an arbitrator, the arbitration hearing will commence within 30 days of the said notice, without formality, with the costs of the arbitration to be shared equally between the parties, subject to such order for costs as the arbitrator may determine in his or her sole discretion. The arbitration shall be conducted pursuant to the then-existing rules and regulations of the American Arbitration Association to the extent not inconsistent with this letter agreement. |
| (e) | Currency: All dollar amounts set forth or referred to in this letter refer to US currency. |
| (f) | Governing Law: To the extent the laws of the United States must apply, the agreement confirmed by this letter shall be governed by the laws of the State of Florida. |
* * *
If this Separation Agreement and Release is acceptable to you once you have had an opportunity to review it, please sign the Acknowledgement and Acceptance below, the Resignation Notice, and the Release Agreement to confirm your acceptance of same and return to Xxxxx Xxxxxxxx at the Tampa Office.
If you have any questions regarding the terms set out in this letter, please feel free to contact me or Xxxxx Xxxxxxxx.
Yours very truly,
COTT CORPORATION
Per:
| /s/ Xxxxxxx Xxxxxxx | /s/ Xxxxxxx X. Xxxx, Xx. | |||
| Xxxxxxx Xxxxxxx, VP People | Xxxx Xxxx, VP, General Counsel & Secretary |
Enclosures:
| 1. | Schedule “1” – Resignation Notice |
| 2. | Schedule “2” – Release Agreement |
Acknowledgement and Acceptance
I acknowledge that I have been provided 21 days to review this Separation Agreement and Release, which I acknowledge is a reasonable period of time (although I may sign it sooner should I desire as long as the date of execution is after my last day of active employment), and seven days thereafter to revoke the Separation Agreement and Release, if I so choose. I also acknowledge that I have been advised, by this paragraph, and have had the opportunity to obtain independent legal advice and that the only consideration for the attached Release Agreement is as referred to in this Separation Agreement and Release. I confirm that no other promises or representations of any kind other than as set forth in this Separation Agreement and Release and the Retention Agreements have been made to me to cause me to sign this Acknowledgement and Acceptance.
| /s/ Xxxx Xxxxxxxx |
November 2, 2009 | |||
| Xxxx Xxxxxxxx | Date |
SCHEDULE “1”
RESIGNATION NOTICE
| TO: | COTT CORPORATION | |
| AND TO: | ALL DIRECT AND INDIRECT AFFILIATES, SUBSIDIARIES AND ASSOCIATED COMPANIES THEREOF | |
| AND TO: | ALL DIRECTORS THEREOF | |
I, Xxxx Xxxxxxxx, confirm my resignation from all offices held by me of Cott Corporation, including all direct and indirect affiliates, subsidiaries, and associated companies, with effect as of September 8, 2009.
| /s/ Xxxx Xxxxxxxx |
| Xxxx Xxxxxxxx |
SCHEDULE “2”
In consideration of the mutual promises, payments and benefits provided for in the Retention, Severance and Non-Competition Plan Agreement dated May 11, 2007 (the “Retention Agreement”), the Amended and Restated Retention, Severance and Non-Competition Plan dated June 25, 2007 (the “Retention Plan”) and the letter agreement dated January 12, 2009 to which this Release Agreement is a Schedule (the “Separation Agreement and Release” and together with the Retention Agreement and the Retention Plan, the “Separation Agreements”), Cott Corporation (the “Corporation”) and Xxxx Xxxxxxxx (the “Employee”) agree to the terms of this Release Agreement dated as of the 31st day of October, 2009 (this “Release Agreement”). Capitalized terms used and not defined in this Release Agreement have the meanings assigned thereto in the Retention Plan.
1. The Employee acknowledges and agrees that the Corporation is under no obligation to offer the Employee the payments and benefits set forth in the Separation Agreements, unless the Employee consents to the terms of this Release Agreement. The Employee further acknowledges that he is under no obligation to consent to the terms of this Release Agreement and that the Employee has entered into this Release Agreement freely and voluntarily.
2. In consideration of the payment and benefits set forth in the Separation Agreements and the Corporation’s release set forth in paragraph 5 of this Release Agreement, the Employee voluntarily, knowingly and willingly releases and forever discharges the Corporation and its subsidiary companies and affiliated companies, together with its and their respective officers, directors, partners, shareholders, employees and agents, and each of its and their predecessors, successors and assigns (collectively, “Releasees”), from any and all charges, complaints, claims, promises, agreements, controversies, causes of action and demands of any nature whatsoever that the Employee or his executors, administrators, successors or assigns ever had, now have or hereafter can, shall or may have against the Releasees by reason of any matter, cause or thing whatsoever arising prior to the time of signing of this Release Agreement by the Employee. The release being provided by the Employee in this Release Agreement includes, but is not limited to, any rights or claims relating in any way to the Employee’s employment relationship with the Corporation or any other Releasee, or the termination thereof, or under any statute, including, but not limited to the Employment Standards Act, 2000, the Human Rights Code, the Workplace Safety and Insurance Act re-employment provisions, the Occupational Health & Safety Act, the Pay Equity Act, the Labour Relations Act, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, as amended by the Older Workers’ Benefit Protection Act, the Family and Medical Leave Act, and the Americans With Disabilities Act, or pursuant to any other applicable law or legislation governing or related to his employment or other engagement with the Corporation or any other Releasee. In no event shall this Release apply to the Employee’s right, if any, to indemnification, under the Employee’s employment agreement or otherwise, that is in effect on the date of this Release and, if applicable, to the Corporation’s obligation to maintain in force reasonable director and officer insurance in respect of such indemnification obligations.
3. The Employee acknowledges and agrees that he shall not, directly or indirectly, seek or further be entitled to any personal recovery in any lawsuit or other claim against the Corporation or any other Releasee based on any event arising out of the matters released in paragraph 2 above.
4. Nothing herein shall be deemed to release: (i) any of the Employee’s rights under the Separation Agreements; or (ii) any of the vested benefits that the Employee has accrued prior to the date this Release Agreement is executed by the Employee under the employee benefit plans and arrangements of the Corporation or any of its affiliates; or (iii) any claims that may arise after the date this Release Agreement is executed.
5. In consideration of the Employee’s release set forth in paragraph 2 above, the Corporation knowingly and willingly releases and forever discharges the Employee from any and all charges, complaints, claims, promises, agreements, controversies, causes of action and demands of any nature whatsoever that the Corporation now has or hereafter can, shall or may have against him by reason of any matter, cause or thing whatsoever arising prior to the time of signing of this Release Agreement by the Corporation, provided, however, that nothing herein is intended to release any claim the Corporation may have against the Employee for any illegal conduct or arising out of any illegal conduct and provided further that nothing herein shall be deemed to release the Corporation’s rights under the Separation Agreements or for any claims that may arise after the date this Release Agreement is executed.
6. The Employee acknowledges that he has carefully read and fully understands all of the provisions and effects of this Release Agreement. The Employee also acknowledges that the Corporation, by this paragraph and elsewhere, has advised him to consult with an attorney of his choice prior to signing this Release Agreement. The Employee represents that, to the extent he desires, he has had the opportunity to review this Release Agreement with an attorney of his choice.
7. The Employee acknowledges that he has been offered the opportunity to consider the terms of this Release Agreement for a period of at least twenty-one (21) days, although he may sign it sooner should he desire as long as the date of execution is after the Employee’s last day of active employment. The Employee further shall have seven (7) additional days from the date of signing this Release Agreement to revoke his consent hereto by notifying, in writing, the VP of People of the Corporation at 0000 X. Xxxxxxxx Xxxxxx, Xxxxx, XX 00000. This Release Agreement will not become effective until seven days after the date on which the Employee has signed it without revocation.
Dated: __November 2, 2009
| /s/ Xxxx Xxxxxxxx |
| Xxxx Xxxxxxxx |
| Cott Corporation |
| Per: |
| /s/ Xxxxxxx Xxxxxxx |
/s/ Xxxxxxx X. Xxxx, Xx. | |||
| Xxxxxxx Xxxxxxx, VP People | Xxxx Xxxx, VP, General Counsel & Secretary | |||
