Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of this 10th day of December, 0000,
X X X X X X X:
COTT CORPORATION, a corporation incorporated under
the laws of Canada
(hereinafter referred to as the "Corporation")
OF THE FIRST PART
- and -
XXXXX X. XXXXX III, of the Town of Vero Beach, in
the State of Florida
(hereinafter referred to as the "Executive")
OF THE SECOND PART
amends and restates in its entirety the employment agreement entered into
between them June 1, 1998 (the "Original Agreement"), as subsequently amended.
WHEREAS the Corporation and the Executive have agreed to enter into
this Employment Agreement to formalize in writing the terms and conditions
reached between them governing the Executive's employment;
NOW THEREFORE in consideration of the covenants and agreements herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties, the parties hereto
agree as follows:
ARTICLE 1 - COMMENCEMENT AND TERM
1.1 TERM. Subject to earlier termination in accordance with this Section 1.1
or Article 5 hereof, the term of the Executive's employment under this Agreement
commenced on June 1, 1998 and shall continue for an indefinite term (the "Term")
until one party gives no less than one hundred and twenty (120) days notice to
the other that he or it wishes to terminate the Executive's employment (a
"Notice of Termination"). In the event that a Notice of Termination is
delivered, the employment of the Executive shall end at the date specified in
the Notice of Termination.
ARTICLE 2 - EMPLOYMENT
2.1 POSITION. Subject to the terms and conditions hereof, the Executive shall
be employed by the Corporation in the office of President and Chief Executive
Officer of the Corporation and shall perform such duties and exercise such
powers and responsibilities of such office as are set forth in the Statement of
Responsibilities - Chief Executive Officer attached hereto which has been
approved by the board of directors, as are contained in the by-laws of the
Corporation and
as are otherwise prescribed of specified from time to time by the board of
directors of the Corporation. The Corporation agrees to submit the Executive's
name for election to the board of directors of the Corporation at each annual
meeting of the Corporation throughout the Term and for a period of one year
following the termination of his employment hereunder.
2.2 RESPONSIBILITIES. The Executive agrees to devote substantially all of his
business time and attention to the business and affairs of the Corporation, to
discharge the responsibilities assigned to the Executive, and to use the
Executive's best efforts to perform faithfully and efficiently such
responsibilities. Other than for the Corporation and any of its subsidiary or
related entities, or for directorships held by the Executive at the time of
execution of this Agreement, the Executive shall be entitled to serve as a
director on external boards of directors, subject to the prior written approval
of the Corporation. Anything herein to the contrary notwithstanding, nothing
shall preclude the Executive from (i) serving on the boards of directors of a
reasonable number of trade associations and/or charitable organizations, (ii)
engaging in charitable activities and community affairs, and (iii) managing his
personal investments and affairs, provided that any or all of the foregoing
activities do not materially interfere with the proper performance of his duties
and responsibilities as the Corporation's President and Chief Executive Officer.
ARTICLE 3 - RENUMERATION
3.1 SALARY. During the Term, the Corporation shall pay the Executive a base
salary (the "Base Salary") to be fixed by the board of directors of the
Corporation from time to time, payable monthly in arrears. The Base Salary shall
not be less than $425,000 per annum and shall be reviewed no less frequently
than annually for increase in the discretion of the board of directors.
3.2 INCENTIVES.
(a) ANNUAL BONUSES. The Executive shall be entitled to an annual
performance-based bonus (the "Bonus") of an amount equal to two hundred percent
(200%) of a bonus target to be determined by the board of directors or a
committee thereof, such Bonus to be based on the achievement of specific
objectives to be established and mutually agreed upon on an annual basis.
Bonuses shall be earned and payable only upon completion of the relevant fiscal
year and provided the Executive shall continue to be actively and continuously
employed for the full duration thereof, unless otherwise provided in Article 5.
(b) EXECUTIVE INCENTIVE PLAN. The Executive shall be entitled to
participate in Cott's Executive Incentive Share Compensation Plan to the extent
that the Executive's performance exceeds 100% of the annual performance
objectives established for him.
(c) LONG-TERM INCENTIVES. The Executive shall be entitled to
participate in the long-term incentive plans and programs of the Corporation as
made available from time to time, to the executive officers of the Corporation.
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3.3 BENEFITS AND REQUISITES.
(a) The Executive shall be entitled to participate in all of the
Corporation's group insurance benefit plans, currently including basic medical,
extended health, dental, long term disability, travel and accident insurance.
All plans are governed by their terms.
(b) The Corporation shall provide the Executive with supplemental
disability benefits which would pay the Executive, in the event of his
termination for Disability (as defined in Section 5.1(c)), an amount equal to
the sum of 60% of his Base Salary less the amount of any disability benefits
provided under the Corporation's long-term disability plans. In the event that
the Executive is totally or partially disabled and is not terminated for
Disability, the Corporation shall ensure that he continue to receive all
remuneration provided for under this Article 3.
(c) The Executive shall have the use of a leased automobile or an
automobile allowance, provided the cost to the Corporation shall not exceed a
monthly amount of $1,500.
(d) The Executive is not entitled to any other benefit or perquisite
other than as specifically set out in this Agreement or agreed to in writing by
the Corporation.
(e) Upon the termination of this Agreement (other than for Just
Cause), in addition to the other benefits the Executive shall receive upon such
a termination, the Executive and his spouse shall, as long as either of them
shall live, be entitled to health insurance benefits (medical, dental, and
vision care, including prescriptions) ("Health Insurance Benefits") equal to the
greater of (i) all Health Insurance Benefits provided from time to time to the
Chief Executive Officer of the Corporation or any successor corporation or, in
the absence of such Chief Executive Officer, the highest paid officer of the
Corporation or any successor corporation and (ii) the Health Insurance Benefits
immediately prior to the termination of his employment provided to the
Executive. Health Insurance Benefits includes the benefits provided to the
Executive as well as terms relating to the provision of such benefits. In the
event the Corporation or successor corporation does not provide such Health
Insurance Benefits, the Corporation shall reimburse the Executive for any
expenses the Executive incurs to replace such Health Insurance Benefits.
The Executive understands and acknowledges that the perquisites
contemplated by this Section 3.3 shall be recorded as taxable benefits within
the meaning of the Income Tax Act (Canada) and will have comparable treatment
under the United States Internal Revenue Code.
3.4 VACATION. The Executive shall be entitled to five weeks' vacation with
pay annually. Such vacation shall be taken at a time or times acceptable to the
Corporation having regard to its operations. Accumulated vacation may be not
carried except with the written approval of the Corporation.
3.5 EXPENSES.
(a) Consistent with its corporate policies as established from
time-to-time, the Corporation agrees to reimburse the Executive for all expenses
reasonably incurred in connection with the performance of his duties upon being
provided with proper vouchers or receipts.
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(b) The Corporation agrees to reimburse to the Executive for legal
and accounting expenses incurred in the negotiation and documentation of this
Agreement in an amount to be agreed upon between the Executive and the
Compensation Committee of the Corporation.
(c) Although the Corporation's principal executive offices are
located in the Toronto, Ontario area, the Executive shall be under no obligation
to relocate his personal residence to the Toronto area. The Corporation shall
provide and maintain for the Executive suitable rental accommodations in the
Toronto area mutually acceptable to the Corporation and the Executive acting
reasonably, and pay any costs associated with the Executive's weekly commuting
from Toronto to the Executive's residences in Vero Beach and/or Philadelphia.
The Executive's spouse shall be entitled to make 12 round trips per year from
her residence to Toronto at the Corporation's expense.
3.6 SHARE OPTIONS.
(a) On the effective date of the Original Agreement but conditional
on the Executive complying with the provisions of subparagraph 3.6(b) below, the
Corporation granted and the Executive accepted an irrevocable option (the
"Option") to purchase 1,300,000 common shares in the capital of the Corporation
(the "Optioned Shares") at a price of Cdn $9.55 per common share being the
closing share price on The Toronto Stock Exchange on the date prior to the
public announcement of the Original Agreement. The Option became exercisable on
a cumulative basis in respect of one-sixth (1/6) of the total Optioned Shares
commencing on the sixth monthly anniversary of the date of grant, and thereafter
in respect of one-thirtieth (1/30) the total unvested Optioned Shares on each of
the next 30 monthly anniversaries of the Original Agreement. The Option shall
expire in respect of Optioned Shares not theretofore acquired thereunder or in
respect of which rights shall not otherwise have terminated on the seventh
annual anniversary of the date of grant.
(b) As a condition precedent of the exercise of the Option (or any
portion thereof), the Executive shall maintain no less than 200,000 common
shares in the Corporation for the duration of his employment with the
Corporation and shall provide evidence of the shares held by him as may be
required by the Corporation from time to time.
(c) The Executive covenants that he will comply with all applicable
securities laws and the Corporation's Xxxxxxx Xxxxxxx Policy and Insider
Reporting Procedures (copies of which have been provided to the Executive) in
respect of the Optioned Shares issued to the Executive and other shares of the
Corporation acquired by the Executive.
(d) All of the Executive's rights in respect of the Option in the
Optioned Shares shall be governed by the terms and conditions set out in the
Restated 1986 Common Share Option Plan (the "Option Plan") of the Corporation as
amended through April 18, 2001, as it may be amended from time to time, a copy
of which has been provided to the Executive, the provisions of which are
incorporated into this Agreement by reference.
(e) The Executive confirms that the Issued Shares (as defined in the
Original Agreement) have not been and will not be registered under the United
States Securities Act of 1933 (the "Securities Act") or any applicable state
securities laws and that the contemplated sale is being made in reliance on a
private placement exemption under the 1933 Act.
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(f) The Executive has had access to such information concerning the
Corporation as he has considered necessary in connection with its investment
decision to acquire the Issued Shares and has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of its investment in the Issued Shares and is able to bear the economic
risks of such investment.
(g) The Executive is an Accredited Investor as confirmed in the
Accredited Investor Questionnaire attached hereto as Exhibit A and is acquiring
the Issued Shares for his own account, and not with a view to any resale,
distribution or other disposition of the Issued Shares in violation of the
United States securities laws or applicable state securities laws.
(h) The Executive understands that if he decides to offer, sell or
otherwise transfer any of the Issued Shares, such Shares may be offered, sold or
otherwise transferred only, (i) to the Corporation, (ii) outside the United
States in accordance with Rule 904 of Regulation S under the 1933 Act, or (iii)
inside the United States in accordance with the exemption from registration
under the 1933 Act provided by Rule 144 thereunder, if available, or (iv)
pursuant to an effective registration statement, and that the certificate
representing the Issued Shares will bear a legend to the foregoing effect.
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 our 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 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 (subject to his rights and obligations under Section
3.6), 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;
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(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 of the Executive's employment
(regardless of the reason for such termination), either individually or in
partnership, jointly or in conjunction with any 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
the 12 month period immediately preceding such time.
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(b) For the purposes of the 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
modifications 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).
ARTICLE 5 - TERMINATION OF EMPLOYMENT
5.1 TERMINATION BY THE CORPORATION FOR JUST CAUSE, DISABILITY OR DEATH OR
NOTICE OF TERMINATION.
(a) The Corporation may terminate this Agreement and the Executive's
employment hereunder without payment of any compensation either by way of
anticipated earnings or damages of any kind at any time for Just Cause,
Disability or death of the Executive, or by delivery of a Notice of Termination
delivered any time following June 30, 2004.
(b) "Just Cause" shall mean:
(i) misconduct or dishonesty in the discharge of his duties
hereunder;
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(ii) theft or misappropriation of the Corporation's property;
(iii) alcoholism or addiction to a substance which materially
impairs the Executive's ability to perform his duties hereunder;
(iv) breach of fiduciary duties;
(v) incompetence or gross negligence in the performance of the
Executive's duties; or
(vi) the Executive commits a material breach of this Agreement
and fails to remedy same, after notice from the Corporation, within a
period which is reasonable in the circumstances.
For the purposes of his Agreement, "Disability" shall have occurred if
the Executive has been unable due to illness, disease, or mental or physical
disability (in the opinion of a qualified medical practitioner who is
satisfactory to the Executive and the Corporation acting reasonably), to fulfill
his obligations hereunder either for any consecutive six (6) month period or for
any period of 9 months (whether or not consecutive) in any consecutive 12 month
period, or the Executive has been declared by a court of competent jurisdiction
to be mentally incompetent or incapable of managing his affairs.
If the Executive and the Corporation cannot agree on a qualified
medical practitioner, each party shall select a medical practitioner, and the
two practitioners shall select a third who shall be the approved medical
practitioner for this purpose.
5.2 TERMINATION BY THE EMPLOYER WITHOUT CAUSE ON OR PRIOR TO JUNE 30, 2004.
(a) If on or prior to June 30, 2004 the Executive's employment is
terminated by the Corporation for any reason other than for Just Cause,
Disability or death of the Executive, then the Corporation shall pay forthwith
to the Executive or as he may direct, a lump sum amount equal to:
(i) 24 months' Base Salary and Bonus (based on the average of
the Bonuses paid or payable to the Executive in respect of the most recent
two completed fiscal years); and
(ii) a pro rated Bonus for the year in which Executive's
termination occurs (based on the average of the Bonuses paid or payable to
the Executive in respect of the most recent two completed fiscal years).
(b) In the event of the termination of the Executive's employment
under this Section 5.2, the Corporation shall, to the extent it may do so
legally and in compliance with the Corporation's benefit plans in existence from
time to time, continue all group insurance benefits at a level equivalent to
those provided to the Executive immediately prior to the termination for a
period until the date which is 24 months following the date of termination,
provided that, (a) the benefits contemplated by this sub-paragraph shall
terminate on the date the Executive obtains alternate employment providing
comparable benefits; and (b) if the Corporation cannot continue
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any particular group insurance benefit, the Corporation shall reimburse the
Executive for any expenses incurred by the Executive to replace such group
insurance benefit.
(c) In the event of the termination of the Executive's employment
under this Section 5.2, the Corporation shall provide Health Insurance Benefits
to the Executive and his spouse in accordance with Section 3.3(e).
5.3 TERMINATION BY THE EXECUTIVE FOR GOOD REASON.
(a) The Executive may terminate this Agreement at any time for Good
Reason upon the occurrence, without the express written consent of the
Executive, of any of the following:
(i) a reduction in the Executive's then current Base Salary or
target award opportunity under the Corporation's annual bonus plan or
long-term performance incentive or the termination or material reduction of
any employee benefit or perquisite enjoyed by him (other than as part of an
across-the-board reduction applicable to all executive officers of the
Corporation);
(ii) the failure to elect or reelect the Executive to any of
the positions described in Section 2.1 (other than the position of director
of the Corporation) or removal of him from any such position;
(iii) a material diminution in the Executive's duties or the
assignment to the Executive of duties which are materially inconsistent
with his duties or which materially impair the Executive's ability to
function as the President and Chief Executive Officer of the Corporation;
(iv) the failure to continue the Executive's participation in
any incentive compensation plan unless a plan providing a substantially
similar opportunity is substituted;
(v) the failure of the Corporation to obtain the assumption in
writing of its obligation to perform this Agreement by any successor to all
or substantially all of the assets of the Corporation within 15 days after
a written request to that effect by the Executive following a merger,
consolidation, sale or similar transaction, unless the Executive shall have
received the opinion of counsel to the Corporation that such transaction
does not have an adverse legal effect on the rights of the Executive
hereunder;
which, in any of the foregoing events, has not been remedied or cured by the
Corporation within a reasonable period after notice from the Executive.
(b) In the event Executive terminates this Agreement for Good Reason,
he shall be entitled to the same payments and benefits provided in Section 5.2
above.
5.4 TERMINATION UPON A CHANGE OF CONTROL.
(a) If, following a Change in Control, the Executive's employment is
terminated without Just Cause or the Executive terminates his employment for
Good Reason, the
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Executive shall be entitled to the payments and benefits provided in this
Section 5.4. Also, immediately following a Change in Control, all amounts,
entitlements or benefits in which Executive is not vested shall become fully
vested. The Executive may terminate his employment at any time for Good Reason
upon the occurrence of a Change of Control by providing written notice to the
Corporation within six months of the occurrence of such Change of Control and
the effective date of such termination and the termination of the Executive's
employment shall be 30 days from the date of such written notice.
(b) For the purposes of this Agreement, a "Change of Control" shall
mean: (i) the occurrence, at any time during the Term of any person or group of
persons acting jointly or in concert acquiring more than 50% of the outstanding
voting shares in the Corporation, whether by way of takeover bid, merger,
amalgamation or otherwise; (ii) a sale by the Corporation of all or
substantially all of the Corporation's undertaking and assets; or (iii) the
voluntary liquidation, dissolution or winding-up of the Corporation, in
connection with which a distribution is made to the holders of the Corporation's
common shares.
(c) In the event of termination of the Executive's employment
pursuant to this Section 5.4, then the following provisions shall apply:
(i) The Corporation shall pay forthwith to the Executive or as
he may direct, a lump sum amount equal to 36 months Basic Salary plus the
average of the Bonuses paid or payable to the Executive in respect of the
most recent two completed fiscal years: and
(ii) The Corporation shall continue, to the extent it may do so
legally and in compliance with the Corporation's benefit plans in existence
from time to time, all group and insurance benefits at a level equivalent
to those provided to those provided to the Executive immediately prior to
the termination for a period of 36 months following the date of
termination, provided that, if the Corporation cannot continue any
particular group insurance benefit, the Corporation shall reimburse the
Executive for any expenses incurred by the Executive to replace such group
insurance benefit.
(iii) The Corporation shall provide Health Insurance Benefits to
the Executive and his spouse in accordance with Section 3.3(e).
(iv) In the event that the termination of the Executive's
employment is for one of the reasons set forth in this Section 5.4 and the
aggregate of all payments or benefits made or provided to the Executive
under this Section 5.4 and under all other plans and programs of the
Corporation (the "Aggregate Payment") is determined to constitute a
Parachute payment, as such term is defined in Section 280G(b)(2) of the
United States Internal Revenue Code, the Corporation shall pay to the
Executive, prior to the time any excise tax imposed by Section 4999 of the
Internal Code ("Excise Tax") is payable with respect to such Aggregate
Payment, an additional amount which, after the imposition of all income and
excise taxes thereon, is equal to the Excise Tax on the Aggregate payment.
The determination of whether the Aggregate Payment constitutes a Parachute
Payment and, if so, the amount to be paid to the Executive and the time of
payment pursuant to this 5.4(c)(iii) shall be made by an independent
auditor (the "Auditor") jointly selected by the Corporation and the
Executive and paid by the Corporation. The Auditor shall be a nationally
recognized United States public
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accounting firm which has not, during the two years preceding the date of
its selection, acted in any way on behalf of the Corporation or any
Affiliate thereof. If the Executive and the Corporations cannot agree on
the firm to serve as the Auditor, then the Executive and the Corporation
shall each select one accounting firm and those two firms shall jointly
select the accounting firm to serve as the Auditor.
5.5 VOLUNTARY RESIGNATION; RETIREMENT. In the event the Executive wishes to
resign his employment voluntarily, he shall provide at least one hundred and
twenty (120) days' notice in writing to the Corporation and shall thereupon, be
entitled to retire ("Retirement"). The Corporation may waive such notice in
whole or in part by paying the Executive's Base Salary and continuing his group
benefits and perquisites to the effective date of resignation. Upon such
termination of the Executive for Retirement, the Corporation agrees that the
Options (the "December Options") issued to the Executive in December 2002 shall
immediately vest.
5.6 SHARE OPTIONS; INCENTIVE SHARES.
(a) Upon any termination of Executive's employment under this
Agreement (other than for Just Cause), all of Executive's December Options shall
vest, and such termination shall otherwise be treated as, or deemed to be, a
"retirement" under Section 16(iii) of the Plan with respect to all Options,
including the December Options.
(b) Any termination of Executive's employment under this Agreement
(other than for Just Cause) shall be considered or deemed to be a "Normal
Retirement" for purposes of the Executive Incentive Share Compensation Plans.
5.7 PAYMENT TO DATE OF TERMINATION. Regardless of the reasons for the
termination, the Corporation shall make payment to the Executive to the
effective date of termination for all Base Salary, any accrued but unpaid
vacation entitlements, any earned but unpaid Bonus and, other than in the event
of a termination for Just Cause, any other amounts earned, accrued (including
Bonus entitlements for the year in which the termination occurs) or owing to the
Executive but not yet paid as well as other or additional benefits in accordance
with applicable plans or programs of the Corporation.
5.8 RETURN OF PROPERTY. Upon any termination of the Agreement, the Executive
shall forthwith deliver or cause to be delivered to the Corporation all books,
documents, computer disks, and diskettes and other electronic data, effects,
money, securities, or other property belonging to the Corporation or for which
the Corporation is liable to others, which are in the possession, charge,
control or custody of the Executive.
5.9 RELEASE. The Executive acknowledges and agrees that the payments pursuant
to this Article shall be in full satisfaction of all terms of termination of his
employment, including termination pay and severance pay pursuant to the
Employment Standards Act (Ontario) as amended from time to time. Except as
otherwise provided in this Article, the Executive shall not be entitled to any
further termination payments, damages or compensation whatsoever. As condition
precedent to any payment pursuant to this Article, the Executive agrees to
deliver to the Corporation prior to any such payment, a full and final release
from all actions or claims in connection therewith in favour of the Corporation,
its affiliates, subsidiaries, directors, officers, employees and agents, in a
form reasonably satisfactory to the Corporation.
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5.10 NO MITIGATION; SET-OFF; NATURE OF PAYMENTS. In the event of any
termination of employment under this Article 5, the Executive shall be under no
obligation to seek other employment and there shall be no offset against amounts
due to the Executive under this Agreement on account of any remuneration
attributable to any subsequent employment that he may obtain except as
specifically provided in this Article 5; provided, however, the Executive
authorizes the Corporation to deduct from any payment due to him pursuant to
this Agreement, any amounts owed to the Corporation howsoever caused, including
by reason of purchases, advances, loans, or in recompense for damages to
property and equipment. This provision shall be applied so as not to conflict
with any applicable legislation. Any amounts due under this Article 5 are in the
nature of severance payments considered to be reasonable by the Corporation and
are not in the nature of a penalty.
5.11 PROVINCIAL LEGISLATION. All payments made and notice given pursuant to
this Article 5 shall include notice of termination and severance pay as defined
in the Employment Standards Act (Ontario) as it may from time to time be
amended, the provisions of which are deemed to be incorporated into this
Agreement and shall prevail to the extent greater.
ARTICLE 6 - DIRECTORS AND OFFICERS
6.1 RESIGNATION. If the Executive is a director or officer at the relevant
time, the Executive agrees that after termination of his employment with the
Corporation he will tender his resignation from any position he may hold as an
officer or director of the Corporation or any of its affiliated or related
companies.
6.2 INSURANCE. The Corporation shall maintain such directors' and officers'
liability insurance for the benefit of the Executive in accordance with
corporate policies and as generally provided to the directors of the
Corporation.
6.3 INDEMNIFICATION. The Corporation agrees that, if the Executive is made a
party, or is threatened to be made a party, to any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "Proceeding"), by
reason of the fact that he is or was a director, officer or employee of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, member, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether or not the basis of such Proceeding
is the Executive's alleged action in an official capacity while serving as a
director, officer, member employee or agent, the Executive shall be indemnified
and held harmless by the Corporation to the fullest extent legally permitted or
authorized by the Corporation's certificate of incorporation or bylaws or
resolutions of the Corporation's Board of Directors or, if greater, by the laws
of the Province of Ontario, and the federal Laws of Canada applicable to the
Corporation, against all cost, expense, liability, and loss (including, without
limitation, attorney's fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
the Executive in connection therewith, and such indemnification shall continue
as to the Executive even if he has ceased to be a director, member, employee or
agent of the Corporation or other entity and shall inure to the benefit of the
Executive's heirs, executors and administrators. The Corporation shall advance
to the Executive all reasonable costs and expenses incurred by him in connection
with a Proceeding within 20 days after receipt by the Corporation of a written
request for such advance. Such request shall include an undertaking by the
Executive to repay the amount of such advance if it shall ultimately be
determined that he is not entitled to be indemnified against such cost and
expenses.
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ARTICLE 7 - ARBITRATION
7.1 All matters in difference between the parties in relation to this
Agreement, shall be referred to the arbitration of a single arbitrator, if the
parties agree upon one, otherwise to three arbitrators, one to be appointed by
the Corporation and one to be appointed by the Executive and a third to be
chosen by the first two arbitrators named before they enter upon the business of
arbitration. The arbitration shall be conducted in accordance with the
Arbitrations Act (Ontario) as it may from time to time be amended. The award and
determination of the arbitrator or arbitrators or any of two of three
arbitrators shall be binding upon the parties and their respective heirs,
executors, administrators and assigns.
ARTICLE 8 - CONTRACT PROVISIONS
8.1 HEADINGS. The headings of the Articles and paragraphs herein are inserted
for convenience of reference only and shall not affect the meaning or
construction hereof.
8.2 INDEPENDENT ADVICE. The Corporation and the Executive acknowledge and
agree that they have each obtained independent legal advice in connection with
this Agreement and they further acknowledge and agree that they have read,
understand and agree with all of the terms hereof and that they are executing
this Agreement voluntarily and in good faith.
8.3 GENDER. Words denoting any gender include both genders.
8.4 GOVERNING LAW. This Agreement shall be construed and interpreted in
accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein. Each of the parties hereby irrevocably attorns to the
jurisdiction of the court of the Province of Ontario with respect to any matters
arising out of this Agreement.
8.5 ENTIRE AGREEMENT. This Agreement, together with the plans and documents
referred to herein, constitutes and expresses the whole agreement of the parties
hereto with reference to any of the matters or things herein provided for or
herein before discussed or mentioned with reference to such employments for the
Executive. All promises, representation, collateral agreements and undertakings
not expressly incorporated in this Agreement are hereby superseded by this
Agreement.
8.6 SEVERABILITY. If any provision contained herein is determined to be void
or unenforceable in whole or in part, it shall not be deemed to affect or impair
the validity of any other provision herein and each such provision is deemed to
be separate and distinct.
8.7 NOTICE. Any notice required or permitted to be given under this Agreement
shall be in writing and shall be properly given if personally delivered,
delivered by facsimile transmission (with confirmation of receipt) or mailed by
prepaid registered mail addressed as follows:
13
(a) in the case of the Corporation:
Cott Corporation
000 Xxxxx'x Xxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Chairman
-and-
Attention: General Counsel
(b) in the case of the Executive:
to the last address of the Executive
in the records of the Corporation
and its subsidiaries
or to such other address as the parties may from time to time specify by notice
given in accordance herewith. Any notice so given shall be conclusively deemed
to have been given or made on the day of delivery, if personally delivered, or
if delivered by facsimile transmission or mailed as aforesaid, upon the date
shown on the facsimile confirmation of receipt or on the postal return receipt
as the date upon which the envelope containing such notice was actually received
by the addressee.
8.8 SUCCESSORS. This Agreement shall enure to the benefit of and be binding
upon the parties hereto and their respective personal or legal representatives,
heirs, executors, administrators, successors and assigns.
8.9 SURVIVORSHIP. Upon the termination of this Agreement, the respective
rights and obligations of the parties shall survive such termination to the
extent necessary to carry out the intended preservation of such rights and
obligations.
8.10 TAXES. All payments under this Agreement shall be subject to withholding
of such amounts, if any, relating to tax or other payroll deductions as the
Corporation may reasonably determine and should withhold pursuant to any
applicable law or regulation.
8.11 CURRENCY. All dollar amounts set forth or referred to in this Agreement
refer to U.S. currency.
8.12 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
14
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
COTT CORPORATION
Per: /s/ Xxxxx X. Xxxxx c/s
-----------------------------
I have authority to bind the Corporation
SIGNED, SEALED & DELIVERED )
in the presence of )
)
)
) /s/ Xxxxx X. Xxxxx III l/s
---------------------------------- ----------------------------
XXXXX X. XXXXX III
15
Exhibit 10.3
COTT CORPORATION
STATEMENT OF RESPONSIBILITIES
- CHIEF EXECUTIVE OFFICER -
The Chief Executive Officer of Cott Corporation (the "Corporation") shall be
responsible for directing the Corporation with the objective of providing
maximum profit and return on invested capital, establishing short-term and
long-term objectives, plans, performance standards and policies subject to the
approval of the Board of Directors. To that end, the Chief Executive Officer
will be ultimately responsible for:
o Preparing, at least annually, a statement of objectives, plans, performance
standards and policies for the Corporation, which shall be reviewed by the
Human Resources, Compensation and Corporate Governance Committee and shall
be approved by the Board of Directors.
o Ensuring that the Corporation's material operating plans, performance
standards and policies are uniformly understood and properly interpreted
and administered by subordinates.
o Presenting proposed operating and capital expenditure budgets for review
and approval by the Board of Directors.
o Directing all investigations and negotiation pertaining to material
acquisitions or dispositions, mergers and joint ventures.
o Representing the Corporation as appropriate in its relationship with major
customers, suppliers, competitors, commercial and investment bankers,
investment analysts, the media, security holders, government agencies,
professional associations, unions, employees and the public generally.
o Analyzing the operating results of the Corporation and its principal
divisions relative to established objectives and taking appropriate steps
to correct unsatisfactory conditions.
o Making recommendations to the Human Resources, Compensation and Corporate
Governance Committee as regards Senior Officer succession planning and
compensation.
o Insuring the adequacy and soundness of the Corporation's financial
structure and reviewing projections of working capital requirements.
o Delegating any or all of the above-noted responsibilities and maintaining
ultimate supervisory responsibility to ensure that they are performed.
