EX-10.1 2 o33695exv10w1.txt EX-10.1 EXHIBIT 10.1 WITHOUT PREJUDICE Private and Confidential- Hand Delivered Thursday July 27th, 2006 Mark Benadiba c/o Cott Canada Dear Mark, This letter confirms our discussion that your employment with Cott Corporation ("Cott") is hereby terminated without cause effective August 1, 2006. Cott appreciates your 'contribution to the business over the years and has. summarised the severance arrangements which are detailed in your Executive Employment Agreement which was effective as of the 28th day of September, 2005 (the "EMPLOYMENT AGREEMENT"). 1. DATE OF TERMINATION The effective date of termination will be August 1,2006 (the "TERMINATION DATE"). 2. ACCRUED SALARY AND VACATION You will be paid your salary, car allowance and accrued vacation to the Termination Date. These payments Will be less applicable statutory withholdings and deductions and paid in a lump sum payment during the next pay period immediately following the Termination Date. 3. SEVERANCE a) Severance - we have agreed to pay you a lump sum payment within ten (10) business days following the Termination Date equal to two (2) times your base salary, car allowance and bonus. This is equal to $2,190,000.00 (Two Million, One Hundred and Ninety Thousand Dollars) (Per Year-Car Allowance $20,000, Base Salary $500,000, Bonus at 100% $575,000) b) Pro-Rated Bonus - You shall also receive a pro-rated bonus for the period up to Termination Date based on the achievement of 150% of the annual bonus incentive target to such date (i.e. 7/12ths of 150% of $575,000 = $503,125), which will be paid within ten (10) business days following the Termination Date. 4. BENEFITS You will continue to receive all of the following benefits for a 24 month period as per your current participation: all health and dental benefits, life insurance (including dependent life insurance and accidental death and dismemberment insurance), short term disability, annual health spending account and annual executive medical assessment costs. Mark Benadiba. July 27, 2006 Page 2 In addition, you shall receive a lump sum payment within ten (10) business day following the Termination Date equal to $16,497.48 on account of and in lieu of participation in the executive disability top up insurance program. Cott shall also agree to reimburse you for your car insurance on your Mercedes Benz automobile for 24 months following the Termination Date in accordance with the terms of insurance in effect on the Termination Date. 5. OPTIONS You will have sixty (60) days from the Termination Date to exercise any of your currently vested stock options in accordance with the terms of Cott Corporation's Common Share Option Plan. The balance of the stock options that are not vested automatically expire upon the Termination Date. 6. EXECUTIVE INVESTMENT SHARE PURCHASE PLAN The Human Resources and Compensation Committee has confirmed that the vesting of the 'unvested shares (4,359) in the Executive Investment Share Purchase Plan registered in your name be accelerated. 7. RETURN OF PROPERTY It shall be a condition of this offer that you shall immediately return to Cott all company property in your possession, power or control, including, but hot limited to: computers, passes, credit cards, manuals, keys and proprietary information and all records or files, pertaining to the affairs of the Company, stored in any form whatsoever; (including. any electronic copies) together with any copies or transcriptions thereof, in whole or part to Sandra Sterman by no later than your last date of employment. 8. NO OTHER PAYMENTS The payments, benefits and other entitlements set out in this letter 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 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 or benefits provided to you pursuant to this letter shall be deemed to include all amounts owing pursuant to the Employment Standards Act. 2000, and such payments and benefits represent a greater right or benefit than that required under the Employment Standards Act, 2000. 9. RESIGNATION & RELEASE You will resign as an officer and director of Cott (and all 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 "l" and such further documentation as may be required by Cott, in its' sale discretion, in order to effect this resignation. You agree to sign the Release in the form attached as Schedule "2" to this letter. Mark Benadiba July 27, 2006 Page 3 10. YOUR CONTINUING OBLIGATIONS a) You will continue to abide by all of the applicable provisions of your Employment Agreement, as amended which are intended to continue following the cessation of your employment, including but not limited to the Confidentiality (Section 7.1), Non-Solicitation, and Non-Competition (Article IX) covenants and, which in the case of the Confidentiality covenant continues forever, and in the case of the Non-So1icitation and Non-Competition covenants, will apply for a period of twenty-four (24) months from the Termination Date. You agree that in the event of a breach of any these covenants, Cott will be entitled to, in addition to any of the remedies set out in the Employment Agreement for the breach of these covenants, discontinue any and all payments, benefits, and other entitlements as set out in this letter, and you will forfeit any and all claims; actions, demands, or payments whatsoever. b) You will agree to cooperate reasonably with Cott, and its legal advisors, in connection with: (i) any business matters in which you were involved; or (ii) any existing or potential claims, investigations, administrative proceedings, lawsuits and other legal and business matters which arose during your employment or involving Cott; (iii) effecting compliance with respect to any regulatory requirements; 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. Cott shall pay you a consulting fee equal to $256.00 per hour, plus applicable GST, for the services provided to Cott at its request hereunder. In addition, you will not voluntarily aid, assist or cooperate with any claimants or plaintiffs or their attorneys or agents in any claims or lawsuits commenced in the future against Cott, provided, however, that nothing in this letter wilt be construed to prevent you from testifying at an administrative hearing, a deposition/discovery, or in court in response to a lawful subpoena in any litigation or proceedings involving Cott. 11. GENERAL a) Entire Agreement: The agreement confirmed by this letter 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. 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 letter, you confirm that: (i) you have had an adequate opportunity to read and consider the terms set out herein, including the Release attached, 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 letter agreement, including attachments; and (iii) you are signing this letter voluntarily, without coercion, and without reliance on any representation, express or implied, by Cott, or by any director, trustee, officer, shareholder, employee or other representative of Cott. Mark Benadiba July 27, 2006 Page 4 d) Currency: All dollar amounts set forth or referred to in this letter refer to Canadian currency. e) Governing Law: The agreement confirmed by this letter shall be governed by the laws of the Province of Ontario, Canada. f) Payment: All payments made to you will be less applicable statutory withholdings and deductions. Mark, if you have any questions please feel tree to contact me. I am also attaching a copy of the Executive Employment Agreement dated 28th day September, 2005. Yours very truly, /s/ Brent D. Willis ------------------------------------- Brent D. Willis President and Chief Executive Officer Attachment Acknowledged, Agreed and Accepted this 2nd day of August, 2006 /s/ Mark Benadiba ------------------------------------- Mark Benadiba SCHEDULE "1" RESIGNATION NOTICE TO: COTT CORPORATION AND TO: ALL DIRECT AND INDIRECT AFF1LIATES, SUBSIDIARIES AND ASSOCIATED CORPORATIONS THEREOF AND TO: ALL DIRECTORS THEREOF I MARK BENADIBA confirm my resignation as director and from all offices held by me of COTT CORPORATION, including all direct and indirect affiliates, subsidiaries, and associated corporations, with effect as of August 1,. 2006. /s/ Mark Benadiba ---------------------------------------- MARK BENADIBA SCHEDULE "2" RELEASE FROM: MARK BENADIBA ("BENADIBA") TO: COTT CORPORATION ("COTT"), ITS DIRECT ,AND INDIRECT RESPECTIVE AFFILIATES, ASSOCIATES, SUBSIDIARIES, PARENTS AND RELATED ORGANIZATIONS AND ALL OF THEIR RESPECTIVE PAST AND PRESENT SHAREHOLDERS, PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES, CONTACTORS, CONSULTANTS, AGENTS, REPRESENTATIVES; TRUSTEES, ADMINISTRATORS, ATTORNEYS AND INSURERS (ALL COLLECTIVELY REFERRED TO AS "RELEASEES") 1. In consideration of the terms as set out in the letter from Cott to Benadiba dated July 27, 2006 (the "Agreement"), the receipt and sufficiency of which consideration are hereby acknowledged, and except for the obligations owed to Benadiba, and referred to in the Agreement, Benadiba hereby remises, releases and forever discharges Cott and the other Re1easees of and from all manner of actions, causes of action, suits, debts, dues, accounts, bonds, contacts, 1iens, claims and demands whatsoever which against the Releasees he now has, ever had or hereafter can, shall or may have for or by reason of any cause, matter or thing whatsoever existing to the present time, ,and particularly and without limiting the generality of the foregoing, of and from all claims and demands of every nature and kind in any way related to or arising from Benadiba's employment or other engagement with Cott or the termination of such employment, engagement or other agreements, including all damages, salary, remuneration, commission, vacation pay, overtime pay, termination pay, severance pay, notice of termination, profit-sharing, stock options or other equity, bonuses, proceeds of any insurance or disability plans, pension or retirement benefits or any other fringe benefit or perquisite of any kind whatsoever and including any claims Benadiba may have; uncle!: any United States, Canada, or other statute, law or ordinance; any contract or agreement (except the Agreement); and any common law principle. The payments, 'benefits, and other entitlements referred to in the Agreement are deemed to satisfy all requirements or money owing under all applicable laws including without limitation, any and a1l wages, vacation pay, termination and severance pay under the Employment Standards Act, 2000. 2. Benadiba confirms that the Agreement has been entered into by the parties for the purposes off fully and finally settling and compromising all possible claims that Benadiba might have against the Releasees and, therefore, in this respect, Benadiba covenants and agrees not to file any complaint or initiate any proceeding under the Employment Standards Act, 2000, under 'the. Ontario Human Rights Code, under the, Workplace Safety and Insurance Act, under the Labour Relations Act, under the Pay Equity Act, or pursuant to any other applicable law or legislation, including the statutes and laws set forth and/or referenced in the preceding paragraph, in any jurisdiction governing or related to Benadiba 's employment or other engagement with Cott. In the event that Benadiba hereafter makes any claim or demand or commences or threatens to commence any action, claim or proceeding or to make any complaint against Cott in this respect, this Release may be raised as an estoppel and complete bar to any such action, claim or proceeding. Benadiba confirms that he has no right to reinstatement, re-call or re-employment with any of the Releasees, and Benadiba waives and releases all rights he had or may have had in this regard. This paragraph shall not release any rights that may not legally be waived. 3. Benadiba further agrees not to make or assist in the commencement of any claims (expressly including any cross-claim, counterclaim, third party action or application) against any other person or corporation who might claim contribution or indemnity against the persons or corporations discharged by this Release. 4. With the exception of disclosure to immediate family or to his legal or professional advisors (but provided any such person agrees not to disclose such information to any other person), Benadiba agrees that the terms and contents of this Release, the consideration included in the Agreement, the contents of the negotiations and discussions resulting .in this Release, and any dispute resolved by this Release, shall all remain privileged and confidential and shall not be disclosed except to the extent required by law or as otherwise agreed to in writing by Cott. 5. This Release shall be binding upon his heirs, executors, administrators, successors and assigns and shall enure to the benefit of Cott and to the benefit of all of the Cott's successors- and assigns. 6. Benadiba acknowledges that he has been advised to and has in fact obtained Independent legal advice and that the only consideration for this Release is as referred to above. Benadiba further confirms that no other promises or representations of any kind have been made to Benadiba to cause him to sign this Release. 7. Benadiba acknowledges that this Release, the settlement of any dispute between Benadiba and Cott, or the payment of any monies to Benadiba, shall not constitute an admission of liability on the part of Cott, which liability is denied. 8. Benadiba agrees that he alone shall be responsible for all tax liability resulting from his receipt of the payments referred to in the Agreement, except to the extent that Cott has withheld funds for remittance to statutory authorities. Benadiba agrees to indemnify and save Cott harmless from any and all amounts payable or incurred by Cott (save and except any penalties and interest that are attributable to Cott's not having deducted sufficient funds by its own direction) if it is subsequently determined that any greater amount should have been withheld in respect of income tax or any other statutory withholding. SIGNED, SEALED AND DELIVERED THIS 2ND DAY OF AUGUST, 2006 /s/ Ines Marra /s/ Mark Benadiba ------------------------------------- ---------------------------------------- WITNESS MARK BENADIBA