(BEACHCROFT LOGO)
EXHIBIT 10.2
Dated August 2 2006
(1) COTT BEVERAGES LTD
- and -
(2) ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
----------
COMPROMISE AGREEMENT
----------
STRICTLY CONFIDENTIAL
WITHOUT PREJUDICE AND SUBJECT TO CONTRACT
(C) Beachcroft LLP 2006
Beachcroft LLP Compromise Agreement
TABLE OF CONTENTS
1. TERMINATION........................................................... 1
2. COMPENSATION.......................................................... 1
3. BENEFITS.............................................................. 1
4. PENSIONS.............................................................. 2
5. RESIGNATION AS A DIRECTOR............................................. 2
6. RETURN OF PROPERTY.................................................... 2
7. CONFIDENTIALITY OF AGREEMENT.......................................... 2
8. CONFIDENTIAL INFORMATION.............................................. 3
9. TAX INDEMNITY......................................................... 3
10. STOCK OPTIONS......................................................... 4
11. INVESTMENT SHARE PURCHASE PLAN........................................ 4
12. RESTRICTIVE COVENANTS................................................. 4
13. FUTURE ASSISTANCE TO THE EMPLOYER..................................... 4
14. WARRANTIES............................................................ 5
15. FULL AND FINAL SETTLEMENT............................................. 5
16. COMPROMISE AGREEMENT.................................................. 6
17. INDEPENDENT ADVICE.................................................... 6
18. AGREEMENT............................................................. 7
19. DEFINITIONS........................................................... 7
APPENDIX 1................................................................ 150
APPENDIX 2................................................................ 161
TEXT OF RESIGNATION LETTER................................................ 161
Table of contents Page (1)
Draft: [Insert date]
Beachcroft LLP Compromise Agreement
THIS AGREEMENT IS MADE ON AUGUST 2, 2006
("THE AGREEMENT DATE") BETWEEN:
1) COTT BEVERAGES LTD (COMPANY NUMBER 283071) OF ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇("▇▇▇ EMPLOYER"); AND
2) ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ OF ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
("THE EMPLOYEE").
BACKGROUND
The Employer and the Employee have agreed that the Employee's employment will
terminate by reason of a restructure of the Employer's business.
IT IS AGREED AS FOLLOWS:
1. TERMINATION
1.1 The Employee's employment with the Employer terminated on 1 August
2006 ("the Termination Date"). His full remuneration will be paid up
to the Termination Date, such payments being subject to deductions of
tax and National Insurance contributions in the normal way.
1.2 Within 14 days of the Agreement Date the Employer will pay to the
Employee the sum of (pounds)110,000 as payment in lieu of notice,
subject to deductions of tax and National Insurance contributions in
the normal way.
2. COMPENSATION
2.1 The Employer will pay to the Employee the sum of (pounds)117,000
(ONE HUNDRED AND SEVENTEEN THOUSAND POUNDS)] ("the Compensation
Payment") as compensation for loss of his employment, following the
issue of a form P45 to him and within 14 days of the Agreement Date.
The first (pounds)30,000(THIRTY THOUSAND POUNDS) of the Compensation
Payment will be paid without deduction of tax at source. Income tax at
basic rate will be deducted in respect of the balance of the
Compensation Payment prior to payment to the Employee.
2.2 The Compensation Payment is made in reliance on the warranties
contained in clause 14 below and subject to the terms of that clause.
Page 1
Draft: 24 July 2006
Beachcroft LLP Compromise Agreement
3. BENEFITS
With effect from the Termination Date and save as provided in this
Agreement the Employer shall cease to provide all other benefits, whether
contractual or otherwise, to or for the benefit of the Employee.
4. PENSIONS
The Employee will be separately notified by the trustees of the Pension
Scheme of his entitlements under the rules of that scheme and of the
options available to him for dealing with that entitlement.
5. RESIGNATION AS A DIRECTOR
The Employee will resign from his directorships and other offices of the
Employer and all Associated Companies by delivering to ▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief
Legal and Corporate Development Officer, Cott Corporation letters of
resignation in the form attached at Appendix 2 within seven days of the
Termination Date. The Employee also agrees to execute any further
documentation required by the Employer to effect this resignation.
6. RETURN OF PROPERTY
6.1 On, or before, the Termination Date, the Employee will return to the
Employer all books, files, documents, papers, materials, computer
equipment, disks, mobile telephones, security cards, credit cards,
keys and other property belonging to or relating to the business of
the Employer or that of its clients, customers and/or suppliers. The
Employee undertakes that he will not make or retain copies of any of
the same and further undertakes that he will immediately return any
such property which subsequently comes into his possession or control
in the future.
6.2 On request by the Employer the Employee undertakes to disclose to the
Employer all passwords to all password protected files, software and
hardware which have been created or protected by him and which are on
the Employer's computers.
7. CONFIDENTIALITY OF AGREEMENT
The Employee warrants that, he has not divulged to any person whatsoever
(other than his immediate family in confidence or to his professional
advisers/solicitors in connection with the conclusion of this Agreement)
the fact of, negotiation and/or terms of this Agreement. The
Page 2
Draft: 24 July 2006
Beachcroft LLP Compromise Agreement
Employer and the Employee agree that they will not divulge in the future to
any person whatsoever the fact of, negotiation and/or terms of this
Agreement (except in the case of the Employee, to his immediate family in
confidence and in both cases to their respective professional
advisers/solicitors in connection with the conclusion of this Agreement or
where required by any competent authority or by a Court of law or Her
Majesty's Revenue and Customs and in the case of the Employer as required
for any internal reporting purposes within the Employer and its Associated
Companies or for the purposes of ensuring compliance with or enforcing the
terms of this Agreement or as may be required by law or securities
regulatory authorities governing the Employer or any of its Associated
Companies).
8. CONFIDENTIAL INFORMATION
8.1 The Employee confirms that he will continue to abide by his
obligations of confidence set out in Section 15 of his contract of
employment with the Employer dated 2 February 2004.
8.2 In accordance with his common law duties the Employee agrees that he
will not disclose to any person any Confidential Information
concerning any matter relating to the business or affairs of the
Employer or any Associated Company or /their Associated Persons,
suppliers and clients/customer which Confidential Information has been
acquired by the Employee in the course of his employment.
8.3 Nothing in this Agreement shall prevent disclosure by the Employee of:
8.3.1 information disclosed pursuant to any order of any Court of
competent jurisdiction; or
8.3.2 information disclosed for the purpose of making a protected
disclosure within the meaning of Part IV A of the Employment
Rights ▇▇▇ ▇▇▇▇; or
8.3.3 information which has come into the public domain otherwise than
by a breach of confidence on behalf of the Employee.
9. TAX INDEMNITY
It is both parties' understanding that the first (pounds)30,000 of the
Compensation Payment may not be subject to income tax pursuant to the
provisions of Section 403 of the Income Tax (Earnings and Pensions) ▇▇▇
▇▇▇▇. Accordingly, the first (pounds)30,000 of the Compensation Payment
will be paid without deduction of tax at source pursuant to those
provisions. Save for any deductions made prior to payment, the Employee
accepts that he will be responsible for the payment of any tax or
Page 3
Draft: 24 July 2006
Beachcroft LLP Compromise Agreement
Employee's National Insurance contributions (including, without limitation,
any interest, penalties or fines in connection therewith) imposed by any
competent authority in respect of any payment or provision of any benefit
as set out in this Agreement ("the Liabilities") and he agrees to indemnify
the Employer or any Associated Company on a continuing basis against any of
the Liabilities.
10. STOCK OPTIONS
The Employee acknowledges that, he has 60 days from the Termination Date to
exercise his currently vested stock options in accordance with the
Employer's Common Share Option Plan. If the Employee does not exercise his
vested stock options they will lapse. The Employee acknowledges that any
stock options granted to him under the Share Plan that are not vested at
the Termination Date, will automatically lapse on the Termination Date.
11. INVESTMENT SHARE PURCHASE PLAN
The Compensation committee has confirmed the accelerated vesting of 2,217
whole shares in the Share Purchase Plan. In order to facilitate the vesting
and release of these shares to the Employee, the Employee will complete a
withdrawal form and will send this form to ▇▇▇▇ ▇▇▇▇▇ Once approved by the
Employer the withdrawal form will be sent to the Trustees with a request
that these shares be transferred into the Employee's C.I.B.C Wood Gundy
account number 311-15302 in the name of account holder ▇▇▇▇▇▇ ▇▇▇▇▇▇.
12. RESTRICTIVE COVENANTS
The Employee confirms that he will abide by the post termination covenants
contained at clause 17 (Non Solicitation and Non Competition) of his
contract of employment dated 2 February 2004 and he accepts that this
clause will continue to apply for 12 months after the termination of his
employment. The Employee and the Employer agree that in the event of a
breach of any of these covenants, the Employer will be entitled to, in
addition to any of the remedies set out in the contract of employment for
the breach of these covenants, to discontinue any and all payments,
benefits, and other entitlements as set out in this Agreement, and the
Employee will forfeit any and all claims, actions, demands, or payments
whatsoever.
13. FUTURE ASSISTANCE TO THE EMPLOYER
13.1 The Employee agrees that, upon the Employer giving him reasonable
notice, he will provide such assistance and information to the
Employer and its legal advisor(s) as may be required in connection
with:
13.1.1 any existing or potential claims, investigations,
administrative proceedings,
Page 4
Draft: 24 July 2006
Beachcroft LLP Compromise Agreement
lawsuits and other legal and business matters which arose during
the Employee's employment or involving the Employee; or
13.1.2 any matters affecting compliance with respect to any regulatory
requirements; or
13.1.3 the completion of any further documents required to give effect
to the terms of this Agreement with respect to which the Employee
has knowledge of the underlying facts.
13.2 In addition, the Employee agrees that he 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 the Employer, provided, however, that nothing in this letter
will be construed to prevent the Employee from testifying at an
administrative hearing, a deposition/discovery, or in court in
response to a lawful subpoena in any litigation or proceedings
involving the Employer.
14. WARRANTIES
The Employee agrees and warrants that:-
14.1 he has taken advice, as confirmed at clause 17 below;
14.2 he has discussed with the Adviser all of the Relevant Legislation and
the rights and obligations arising from his contract of employment
("the Law") and all issues regarding his employment and its
termination which may be relevant to the Law;
14.3 the claims listed at clause 15.1.1 below amount to the entirety of the
claims which he believes he has against the Employer or any Associated
Company or their Associated Persons, arising out of or in connection
with his employment including its termination
14.4 this Agreement is intended to settle any actual or potential disputes
or proceedings between the parties (whether known or not, whether
existing in fact or law or not, whether the claim be statutory or
contractual or of any other nature).
15. FULL AND FINAL SETTLEMENT
15.1 The Employee agrees to accept the Compensation Payment in full and
final settlement of any claims he has or may have in the future
against the Employer or any Associated
Page 5
Draft: 24 July 2006
Beachcroft LLP Compromise Agreement
Company or their Associated Persons (whether known or not, whether
existing in fact or law or not, whether the claim be statutory or
contractual or of any other nature):-
15.1.1 for unfair dismissal, wrongful dismissal, a statutory
redundancy payment, sex, race, disability or age discrimination,
sexual orientation discrimination, discrimination on grounds of
religion or belief, equal pay, unlawful deduction from wages or
detriment on the grounds of having made a public interest
disclosure.
15.1.2 relating to his employment or its termination including,
without limitation, any claims under the provisions of any of the
Relevant Legislation;
15.1.3 howsoever arising, out of or in connection with the Employee's
contract of employment, including the termination thereof; and
15.1.4 in tort arising out of or in connection with his employment
with the Employer.
15.2 The Employer enters into this Agreement and makes the Compensation
Payment in reliance upon the warranties given by the Employee at
clause 15 above. In the event that the Employee is in breach of clause
15 or issues a claim relating to his employment or its termination
against the Employer or any Associated Company or their Associated
Persons, whether in the Employment Tribunal, the High Court, the
County Court or otherwise, the Employee agrees that the Employer or
any Associated Company their Associated Persons may offset the
Compensation Payment against any remedy due to the Employee from any
such proceedings. However this clause shall not adversely affect the
Employee's right to bring an claim in respect of personal injury
(although in signing this Agreement, the Employee confirms that as at
the Agreement Date he is not aware of any illness or injury, or the
symptoms of such illness or injury, which could lead to such a
personal injury claim).
16. COMPROMISE AGREEMENT
The parties agree that the conditions regulating compromise agreements
contained in the Relevant Acts are intended to be and have been satisfied
by the terms of this Agreement.
17. INDEPENDENT ADVICE
The Employee warrants that:-
Page 6
Draft: 24 July 2006
Beachcroft LLP Compromise Agreement
17.1 he has received independent advice from ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ of the
Solicitors ("the Adviser") as to the terms and effect of this
Agreement and, in particular, its effect on his ability to pursue his
rights before an Employment Tribunal. The Adviser is a Solicitor of
the Supreme Court and has produced a letter on the Adviser's headed
paper addressed to the Employer in the form attached at Appendix 1 of
this Agreement; and
17.2 the Employee is advised by the Adviser that there is in force, and was
at the time he received the advice referred to above, a contract of
insurance or an indemnity provided for members of a profession or
professional body covering the risk of a claim by him in respect of
loss arising in consequence of that advice.
18. AGREEMENT
18.1 The Agreement is made without any admission of liability whatsoever by
the Employer.
18.2 This Agreement constitutes the entire agreement and understanding
between the parties and supersedes all or any previous contracts,
agreements or arrangements, whether written or verbal between the
parties (other than any provision in the Employee's contract of
employment which is expressed to survive termination of the contract
of employment and which has not been varied by any provision in this
agreement).
18.3 The terms of this Agreement shall be governed by and construed in
accordance with English law and the parties agree to submit to the
exclusive jurisdiction of the English Courts in relation to any claims
or any matter arising.
18.4 Notwithstanding that this Agreement is marked "without prejudice and
subject to contract", it will, when signed by both parties, become
open and binding.
18.5 If any part of this Agreement shall be, or become, void or
unenforceable for any reason, this shall not affect any of the
remaining provisions of this Agreement and, in the event that part of
any provision shall be held to be void or unenforceable but would be
valid and enforceable if some part thereof were deleted, such
provision shall apply with such modification as may be necessary to
make it valid and enforceable.
19. DEFINITIONS
In this Agreement:
Page 7
Draft: 24 July 2006
Beachcroft LLP Compromise Agreement
19.1 "Associated Company" includes all subsidiary companies and holding
companies of the Employer and any subsidiary or holding companies of
such holding companies, in the meanings attributed to those
expressions by Section 736 of the Companies ▇▇▇ ▇▇▇▇ as amended.
19.2 "Associated Persons" means any current or former shareholders,
directors, officers, agents or employees of the Employer or any
Associated Company.
19.3 "Confidential Information" means any information of a confidential or
secret nature relating to any and all aspects of the business of the
Employer and/or its Associated Companies and/or its or their
Associated Persons, clients, customers and suppliers including but not
limited to personnel data, financial information, budgets, reports,
business plans, strategies, know-how, formulae, designs, data,
specifications, research, processes, procedures and programs, pricing,
sales and marketing plans and details of past or proposed transactions
whether or not written or computer generated or expressed in material
form.
19.4 "Pension Scheme" means that pension scheme operated for employees of
the Employer of which the Employee is a member.
19.5 "person" includes references to an individual, company, firm or
association.
19.6 "Relevant Acts" means the Sex Discrimination ▇▇▇ ▇▇▇▇, the Race
Relations ▇▇▇ ▇▇▇▇, the Trade Union and Labour Relations
(Consolidation) ▇▇▇ ▇▇▇▇, the Disability Discrimination ▇▇▇ ▇▇▇▇, the
Employment Rights ▇▇▇ ▇▇▇▇, the National Minimum Wage ▇▇▇ ▇▇▇▇, the
Working Time Regulations 1998, the Employment Equality (Sexual
Orientation) Regulations 2003, the Employment Equality (Religion or
Belief) Regulations 2003, the Information and Consultation of
Employees Regulations 2004, the Occupational and Personal Pension
Schemes (Consultation by Employers and Miscellaneous Amendment)
Regulations 2006 and the Employment Equality (Age Discrimination)
Regulations 2006.
19.7 "Relevant Legislation" means the Equal Pay ▇▇▇ ▇▇▇▇, the Protection
from ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, the Data Protection ▇▇▇ ▇▇▇▇, the Human
Rights ▇▇▇ ▇▇▇▇, the Employment Relations ▇▇▇ ▇▇▇▇, the Working Time
Regulations 1999, the Maternity and Parental Leave Regulations 1999,
the Part Time Workers (Prevention of Less Favourable Treatment)
Regulations 2000, the Fixed Term Employees (Prevention of Less
Favourable Treatment) Regulations 2002, the Employment ▇▇▇ ▇▇▇▇, the
Transfer of Undertaking
Page 8
Draft: 24 July 2006
Beachcroft LLP Compromise Agreement
(Protection of Employment) Regulations 1987 and 2006, the Relevant
Acts and European Community legislation.
19.8 "Share Plan" means the Employer's Common Share Option Plan.
19.9 "Share Purchase Plan" means the Employer's Executive Investment Share
Purchase Plan.
SIGNED BY /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
DATED AUGUST 2, 2006
SIGNED BY /S/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
FOR AND ON BEHALF OF THE
EMPLOYER AND ITS ASSOCIATED
COMPANIES AND THEIR
ASSOCIATED PERSONS
DATED AUGUST 2, 2006
Page 9
Draft: 24 July 2006
Beachcroft LLP Compromise Agreement
APPENDIX 1
THIS IS TO BE TYPED ON TO THE HEADED NOTEPAPER OF THE ADVISER - GORDONS LLP
STRICTLY PRIVATE AND CONFIDENTIAL
TO BE OPENED BY ADDRESSEE ONLY
BEACHCROFT LLP
▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Dear Sirs,
I, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ of Gordons LLP ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇
confirm that I have given independent advice to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ("the
Employee") as to the terms and effect of the agreement to be entered into
between you and him and in particular its effect on his ability to pursue his
rights before an Employment Tribunal in relation to the termination of his
employment.
I confirm that I am a Solicitor of the Supreme Court holding a current
Practising Certificate and that there is, and was at the time I gave the advice
referred to above, in force a contract of insurance or an indemnity provided for
members of a profession or a professional body covering the risk of a claim by
the Employee in respect of any loss arising out of that advice.
Yours faithfully,
/s/ Gordons LLP
Beachcroft LLP Compromise Agreement
APPENDIX 2
TEXT OF RESIGNATION LETTER
To: Cott Beverages Ltd
I hereby resign from my offices as director, officer and, if applicable, company
secretary of the Company and all of its Associated Companies, including without
limitation those listed below, with immediate effect from 1 August 2006
COTT CORPORATION
COTT RETAIL BRANDS LIMITED
COTT LTD,
COTT EUROPE TRADING LIMITED
COTT PRIVATE LABEL LIMITED
COTT ▇▇▇▇▇▇ (HOLDINGS) LIMITED
COTT (▇▇▇▇▇▇) LIMITED.
SIGNED BY /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
DATED AUGUST 1, 2006