As filed with the Securities and Exchange Commission on January 22, 2004
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
COTT CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Canada | None | |
(State or Other Jurisdiction of
Incorporation or Organization) |
(I.R.S. Employer Identification Number) |
207 Queens Quay West, Suite 340
Toronto, Ontario M5J 1A7
(416) 203-3898
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrants Principal Executive Offices)
Mark R. Halperin, Esq.
Cott Corporation
207 Queens Quay West, Suite 340
Toronto, Ontario M5J 1A7
(416) 203-3898
(Name, Address, Including Zip Code, and Telephone
N
umber, Including
Area Code, of Agent For Service)
Copy to:
H. John Michel, Esq.
Diana E. McCarthy, Esq.
Drinker Biddle & Reath LLP
One Logan Square, 18th & Cherry Streets
Philadelphia, Pennsylvania 19103-6996
(215) 988-2700
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [x]
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
(1) In the event of a share split, share dividend or similar transaction
involving the Registrants shares, in order to prevent dilution, the number of
shares registered automatically shall be increased to cover the additional
shares in accordance with Rule 416(a) under the Securities Act of 1933.
(2) Estimated pursuant to Rule 457(c) solely for the purpose of calculating the
registration fee. The price and fee are based on the average of the highest
and lowest selling prices of the Registrants common shares on January 16, 2004
on the New York Stock Exchange.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
SUBJECT TO COMPLETION, DATED
JANUARY 22, 2004
PROSPECTUS
Cott Corporation
2,268,383 Common Shares
This prospectus relates to the offer and sale,
from time to time, of up to 2,268,383 common shares by the
selling security holders listed on page 6 of this
prospectus. All of the common shares covered by this prospectus
were acquired by the selling security holders from Thomas H. Lee
Equity Fund IV, L.P. on December 17, 2003 in private
transactions.
The offer and sale of the common shares covered
by this prospectus will be made by the selling security holders
listed in this prospectus or by those holders pledgees,
donees, transferees, or other successors in interest, in
accordance with one or more of the methods described in the plan
of distribution, which begins on page 8 of this prospectus.
We will not receive any of the proceeds from the sale of any
common shares by the selling security holders, but we have
agreed to bear certain expenses of registering the resale of the
common shares under federal and state securities laws.
Our common shares are listed and traded on the
New York Stock Exchange under the symbol COT and on
the Toronto Stock Exchange under the symbol BCB. On
January 16, 2004, the last reported sales price of our
common shares on the New York Stock Exchange was $28.27 per
share and on the Toronto Stock Exchange was Cdn$36.89 per share.
Consider carefully the Risk Factors beginning on page 2
of this prospectus before deciding to invest in our common
shares.
These securities have not been approved or
disapproved by the Securities and Exchange Commission or any
state securities commission nor has the Securities and Exchange
Commission or any state securities commission passed upon the
accuracy or adequacy of this prospectus. Any representation to
the contrary is a criminal offense.
The date of this prospectus
is ,
2004.
Title of Each Class
Amount
Proposed Maximum
Proposed Maximum
Amount Of
Of Securities To
To Be
Offering Price
Aggregate
Registration
Be Registered
Registered (1)
Per Share (2)
Offering Price (2)
Fee
2,268,383
$
28.67
$
65,034,540.61
$
5,261.29
The information in this prospectus is not
complete and may be changed. We may not sell these securities
until the registration statement filed with the Securities and
Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer
to buy these securities in any jurisdiction where the offer or
sale is not permitted.
TABLE OF CONTENTS
1
1
2
5
6
6
8
10
10
10
ABOUT THIS PROSPECTUS
This prospectus is part of a registration
statement that we filed with the Securities and Exchange
Commission (the SEC) using a shelf
registration process. Under this shelf registration process, the
selling security holders may, from time to time, offer and sell
the common shares covered by this prospectus. Each time a
selling security holder offers common shares under this
prospectus, it will provide a prospectus supplement that will
contain specific information about the terms of that offering.
The prospectus supplement may also add, update, or change
information contained in this prospectus. You should read both
this prospectus and any prospectus supplement together with the
additional information described in the section of this
prospectus entitled Where You Can Find More
Information, which begins on page 10 of this prospectus.
We have not authorized any dealer, salesperson,
or other person to give any information or to make any
representation other than those contained or incorporated by
reference in this prospectus. You must not rely upon any
information or representation not contained or incorporated by
reference in this prospectus.
This prospectus does not constitute an offer to
sell or a solicitation of an offer to buy any securities other
than the registered securities to which it relates, nor does
this prospectus constitute an offer to sell or a solicitation of
an offer to buy securities in any jurisdiction to any person to
whom it is unlawful to make such offer or solicitation in such
jurisdiction.
Our consolidated financial statements
incorporated by reference in this prospectus have been prepared
in accordance with United States generally acceptable accounting
principles in U.S. dollars. Unless otherwise indicated, all
amounts in this prospectus are in U.S. dollars.
You should assume the information contained in
this prospectus or the documents incorporated by reference is
accurate only as of the date on the front cover of this
prospectus or as of the dates of those incorporated documents,
respectively. Our business, financial condition, results of
operations, and prospects may have changed since those dates.
COTT CORPORATION
We are the leading supplier of premium quality
retailer-brand carbonated soft drinks in the United States,
Canada, and the United Kingdom. We operate our United States
business through an indirect wholly-owned subsidiary, Cott
Beverages Inc. (a Georgia company), our Canadian business
through our Cott Beverages Canada division, and our United
Kingdom business through an indirect wholly-owned subsidiary,
Cott Beverages Ltd. (a United Kingdom company). In addition to
carbonated soft drinks, our product lines include clear,
sparkling flavored beverages, juices, and juice-based products,
bottled water, energy drinks, and iced teas. Our products are
sold principally under customer controlled retailer-brands, but
we also offer products under brand names that we own or license
from others.
Our principal executive offices are located at
207 Queens Quay West, Suite 340, Toronto, Ontario,
Canada M5J 1A7. Our telephone number at that office is
(416) 203-3898.
For additional information about us that is
incorporated by reference in this prospectus, see the section of
this prospectus entitled Where You Can Find More
Information, which begins on page 10 of this prospectus.
1
RISK FACTORS
Your investment in our common shares will
involve risks. Before making an investment decision, you should
consider carefully the following risk factors and the other
information contained or incorporated by reference in this
prospectus. This section includes or refers to forward-looking
statements. You should refer to the explanation of the
qualifications and limitations on forward-looking statements in
the section of this prospectus entitled Forward Looking
Statements, which begins on page 5 of this
prospectus.
Risk Factors Relating to Our
Business
A significant portion of our sales are
concentrated in a small number of customers. Our customers
include many large national and regional grocery,
mass-merchandise, drugstore, wholesale and convenience store
chains in our core markets of the United States, Canada and the
United Kingdom. For the year ended December 28, 2002 and
the nine-month period ended September 27, 2003, sales to
one major customer accounted for approximately 40% and 42%,
respectively, of our total sales. For the same periods, our top
ten customers accounted for approximately 71% of our total
sales. We expect that sales of our products to a limited number
of customers will continue to account for a high percentage of
our sales for the foreseeable future. The loss of any
significant customer, or customers which in the aggregate
represent a significant portion of our sales, could have a
material adverse effect on our operating results and cash flows.
The markets for our products are extremely
competitive. In comparison to the major, national-brand beverage
manufacturers, we are a relatively small participant in the
industry. We face competition from the national-brand beverage
manufacturers in all of our markets and from other
retailer-brand beverage manufacturers in the United States and
the United Kingdom. If our competitors reduce their selling
prices or increase the frequency of their promotional activities
in our core markets or if our customers do not allocate adequate
shelf space for beverages supplied by us, we could lose market
share or be forced to reduce pricing or increase capital and
other expenditures, any of which could adversely affect our
profitability.
Our success depends, in part, on our ability to
manage new acquisitions. In recent years, we have grown our
business and beverage offerings primarily through acquisitions
of other companies, new product lines and growth with key
customers. A part of our strategy is to continue to expand our
business through acquisitions and alliances. To succeed in this
strategy, we must identify appropriate acquisition or strategic
alliance candidates. The success of this strategy also depends
on our ability to manage and integrate acquisitions and
alliances at a pace consistent with the growth of our business.
We cannot assure you that acquisition opportunities will be
available, that we will continue to acquire businesses and
product lines or that any of the businesses or product lines
that we acquire or align with will be integrated successfully
into our business or prove profitable.
We purchase a significant portion of the
ingredients we need to produce our products, including
sweeteners and carbon dioxide, and our primary packaging
supplies, including polyethylene terephthalate
(PET) bottles, caps and preforms, cans and lids, labels,
cartons and trays, from outside vendors. We have a variety of
suppliers for many of our materials, and we maintain
long-standing relationships with many of these suppliers. We
typically enter into annual supply arrangements rather than
long-term contracts with suppliers, but we have long-term
agreements with respect to some of our key packaging supplies,
such as aluminum cans and lids and PET bottles, and some of our
key ingredients, such as artificial sweeteners. We recently
entered
2
The underlying commodity costs of our ingredients
and packaging supplies, such as resin for PET bottles, aluminum
for cans, and high fructose corn syrup, are cyclical and
historically have been subject to price volatility. The majority
of our contracts allow our suppliers to alter the costs they
charge us for ingredients and packaging supplies based on
changes in these commodity costs, and in some cases other
factors, at certain predetermined times and subject to defined
guidelines, meaning that we bear the risk of shifts in the
market costs of these commodities. We do not use derivative
instruments to manage this risk. If the cost of these
ingredients or packaging supplies increase, we may be unable to
pass these costs along to our customers through corresponding or
contemporaneous adjustments to the prices we charge.
Our success depends, in part, on our ability to
protect our intellectual property, including our concentrate
formulas. We may not be successful in protecting our
intellectual property for a number of reasons, including if our
competitors independently developed intellectual property that
is similar to or better than ours or if our intellectual
property were successfully challenged, invalidated or
circumvented. If we are unable to protect our intellectual
property, it would weaken our competitive position.
Certain regulations under the Ontario
Environmental Protection Act provide that a minimum percentage
of a bottlers soft drink sales within specified areas in
Ontario must be made in refillable containers. We, along with
other industry participants, are currently not in compliance
with the requirements of the Ontario Act. Ontario is not
enforcing the Ontario Act at this time, but if it chose to
enforce the Act in the future we could incur fines for
non-compliance and the possible prohibition of sales of soft
drinks in non-refillable containers in Ontario.
In April of 2003, the Ontario Ministry of the
Environment proposed to revoke these regulations in favor of new
mechanisms under the Ontario Waste Diversion Act to enhance
diversion from disposal of carbonated soft drink containers. On
December 22, 2003, the Ontario provincial government
approved the implementation of the Blue Box Program plan under
the Ministry of Environment Waste Diversion Act. The Program
requires those parties who introduce packaging and printed
materials into the Ontario consumer marketplace to begin
contributing, as of February 2004, to the net cost of the
municipal Blue Box Program. Primary responsibility for this cost
rests with brand owners or licensees of rights to brands which
are manufactured, packaged or distributed for sale in Ontario.
The Program does not revoke any of the regulations mentioned
above under the Environmental Protection Act regarding
refillable containers. We are currently analyzing the costs of
complying with the Program. Therefore, its financial impact on
us is uncertain.
We are exposed to changes in foreign currency
exchange rates, including those between the U.S. dollar, on
the one hand, and the Canadian dollar and the pound sterling, on
the other hand. Our operations outside of the United States
accounted for approximately 26% of our 2002 sales and our sales
for the first nine months of 2003. We do not currently use
derivative instruments to manage our exposure to foreign
currency exchange rate risk. Accordingly, currency fluctuations
in respect of our outstanding non-U.S. dollar denominated net
asset balances may affect our reported results and competitive
position.
3
As of September 27, 2003, we had total
consolidated long-term indebtedness of $279.4 million and
our net-debt to net-debt-plus-equity ratio equaled 50%. We are
subject to certain risks that are associated with this level of
debt.
We will be required to use a significant portion
of our cash flow to service our debt. In 2003, we repaid our
$86.6 million term bank loan, which reduced our long-term
debt repayments in 2004 and 2005 to $3.1 million and
$1.2 million, respectively. Our committed, revolving,
secured credit facility was increased from $75.0 million to
$100.0 million on December 23, 2003. Borrowings under
this credit facility must be repaid by the expiration date of
December 31, 2005. As of December 23, 2003,
$59.6 million was outstanding under this credit facility.
These debt levels could limit our financial flexibility and
ability to obtain favorable financing for future operations and
acquisitions.
Our indebtedness is comprised of fixed rate debt
and variable rate debt. We are exposed to changes in interest
rates with respect to the variable rate debt, which is entirely
comprised of short-term borrowings. We do not currently use
derivative instruments to hedge interest rate exposure. However,
we do regularly review the structure of our indebtedness and
consider changes to the proportion of variable versus fixed rate
debt through refinancing, interest rate swaps or other measures
in response to the changing economic environment. We cannot
assure you that we will be able to continue to refinance our
indebtedness on terms that are favorable to us. If we are unable
to refinance our indebtedness or otherwise adequately manage our
debt structure in response to changes in the market, our
interest expense could increase, which would negatively impact
our financial condition and results of operations.
Risk Factors Relating to the Market for Our
Common Shares
The market price of our common shares has been
volatile from time to time in the past and may change rapidly in
the future. The following factors, among others, may cause
significant volatility in the price of our common shares:
Sales of a substantial number of our common
shares into the public market, or the perception that those
sales could occur, could adversely affect the price of our
common shares or could impair our ability to obtain capital
through an offering of equity securities. As of
December 17, 2003, we had 70,258,831 common shares issued
and outstanding. Of these shares, most are freely transferable
without restriction under securities legislation and a
substantial portion of the remaining shares may be sold subject
to the volume restrictions, manner-of-sale provisions and other
conditions of Rule 144 under the Securities Act of 1933.
As of December 17, 2003 (after giving effect
to the sales by Thomas H. Lee Equity Fund IV, L.P.
described in this prospectus and related sales by certain of its
affiliates), our directors, executive officers and principal
shareholders and their affiliates collectively were deemed
beneficially to own approximately 22.74%
4
Shares issued pursuant to the exercise of options
could dilute the holdings of existing stockholders. As of
December 17, 2003, there were outstanding options to
purchase a total of 4,067,154 of our common shares at a weighted
average exercise price of $17.21 (Cdn$22.81) per share. Holders
of options to purchase our common shares will probably exercise
them only at a time when the price of our common shares is
higher than the respective exercise or conversion prices of
those options. Accordingly, we may be required to issue common
shares at a price substantially lower than the market price of
our common shares. This could adversely affect the price of our
common shares. In addition, if and when these shares are issued,
the percentage of our common shares that existing shareholders
own will be diluted.
FORWARD LOOKING STATEMENTS
In addition to historical information, this
prospectus and the reports and other documents incorporated by
reference in this prospectus contain statements relating to
future events and our future results. These statements are
forward-looking within the meaning of the Private
Securities Litigation Reform Act of 1995 and include, but are
not limited to, statements that relate to projections of sales,
earnings, earnings per share, cash flows, capital expenditures,
or other financial items, discussions of estimated future
revenue enhancements and cost savings. These statements also
relate to our business strategy, goals, and expectations
concerning our market position, future operations, margins,
profitability, liquidity, and capital resources. Generally,
words such as anticipate, believe,
continue, could, estimate,
expect, intend, may,
plan, predict, project,
should, will, and similar terms and
phrases are used to identify forward-looking statements in this
prospectus and in the reports and other documents incorporated
by reference in this prospectus. These forward-looking
statements are made as of the date of this prospectus.
Although our management believes the assumptions
underlying these forward-looking statements are reasonable, any
of these assumptions could prove to be inaccurate and, as a
result, the forward-looking statements based on those
assumptions could be incorrect. Our operations involve risks and
uncertainties, many of which are outside of our control, and any
one or any combination of these risks and uncertainties could
also affect whether the forward-looking statements ultimately
prove to be correct.
The following are some of the factors that could
affect our financial performance, including, but not limited to,
sales, earnings and cash flows, or could cause actual results to
differ materially from estimates contained in or underlying the
forward-looking statements:
5
Many of these factors are described in greater
detail in our other filings with the SEC. We undertake no
obligation to update any information contained in this
prospectus or to publicly release the results of any revisions
to forward-looking statements to reflect events or circumstances
that we may become aware of after the date of this prospectus.
Undue reliance should not be placed on forward-looking
statements.
All future written and oral forward-looking
statements attributable to management or other persons acting on
our behalf are expressly qualified in their entirety by the
foregoing.
USE OF PROCEEDS
We will not receive any of the proceeds from the
sale of the shares by the selling security holders, nor will any
of the proceeds be available for our use or otherwise for our
benefit. All proceeds from the sale of the shares will be for
the account of the selling security holders.
SELLING SECURITY HOLDERS
Background
All of the 2,268,383 common shares covered by
this prospectus were purchased by the selling security holders
listed in the table below from Thomas H. Lee Equity Fund
IV, L.P. in private transactions consummated on
December 17, 2003. All of those shares were originally
acquired by Thomas H. Lee Equity Fund IV, L.P. upon the
conversion in June 2002 of our convertible preferred shares
purchased by that entity from us in July 1998 and upon the
exercise in July 2002 of options purchased by that entity from
certain third parties in July 1998. In connection with the sales
from Thomas H. Lee Equity Fund IV, L.P. to the selling security
holders listed below, we agreed to prepare and file with the SEC
the registration statement of which this prospectus is a part
registering the resale of those shares by the selling security
holders.
Beneficial Ownership
The table below provides the following
information:
6
The information presented in this table assumes
that the selling security holders will sell all of the shares
offered under this prospectus. However, because the selling
security holders may sell all, some, or none of their shares
under this prospectus, or in another permitted manner, no
assurances can be given as to the actual number of shares that
will be sold by the selling security holders or that will be
held by the selling security holders after completion of the
offering to which this prospectus relates.
This table is prepared based upon information
supplied to us by the listed selling security holders. However,
since the date on which the information in this table is
presented, the selling security holders listed in this table may
have sold or transferred, in transactions exempt from
registration requirements of the Securities Act, some or all of
their shares or may have acquired additional shares. The shares
covered by this prospectus may be offered from time to time by
the selling security holders named below or by their pledgees,
donees, transferees, or other successors in interest.
Information concerning the selling security holders may change
from time to time and changed information will be presented in a
supplement to this prospectus if and when necessary or required.
The applicable percentages of ownership are based
on an aggregate of 70,258,831 common shares issued and
outstanding on December 17, 2003.
7
To our knowledge, none of the selling security
holders nor any of their affiliates, officers, directors, or
principal equity holders has held any position or office or has
had any material relationship with us within the past three
years.
PLAN OF DISTRIBUTION
This prospectus relates to the offer and sale
from time to time of up to 2,268,383 common shares by the
selling security holders, which includes the holders listed
above under the caption Selling Security Holders and
any of their respective pledgees, donees, transferees, or other
successors in interest (including successors by gift,
partnership distribution or other non-sale-related transfer
effected after the date of this prospectus). The selling
security holders will act independently of us and one another in
making decisions with respect to the timing, manner, and size of
each sale of common shares covered by this prospectus.
The sale of the shares by the selling security
holders may be effected from time to time by selling the shares
directly to purchasers or through one or more underwriters or
broker-dealers. In connection with any such sale, any such
underwriters or broker-dealers may act as agent for the selling
security holders or may purchase from the selling security
holders all or a portion of the shares as principal, and any
such sale may be made pursuant to any of the methods described
below. If the selling security holders sell the shares through
underwriters or broker-dealers, the selling security holders
will be responsible for underwriting discounts or commissions or
agents commissions. The total proceeds to the selling
security holders will be the purchase price of the shares, less
any discounts and commissions paid by the selling security
holders. We will not receive any of the proceeds from the
selling security holders sale of the common shares.
The SEC may deem the selling security holders and
any underwriters, broker-dealers, or other agents who
participate in the distribution of the shares to be
underwriters, within the meaning of the Securities
Act. As a result, the SEC may deem any profits the selling
security holders make by selling the shares and any discounts,
commissions, or concessions received by any underwriters,
broker-dealers, or other agents to be underwriting discounts and
commissions under the Securities Act. Selling security holders
who are underwriters will be subject to the
prospectus delivery requirements of the Securities Act. To our
knowledge, there are currently no plans, arrangements, or
understandings between any selling security holders and any
underwriter, broker-dealer, or other agent regarding the sale of
the shares.
The selling security holders and any other person
who participates in distributing the shares will be subject to
the Securities Exchange Act. The Securities Exchange Act rules
include Regulation M, which may limit the timing of
purchases and sales of any of the shares by the selling security
holders and any such other person. In addition,
Regulation M may restrict the ability of any person engaged
in the distribution of the shares to engage in market-making
activities with respect to the shares. This may affect the
shares marketability and the ability of any person to
engage in market-making activities with respect to the shares.
The selling security holders may sell the shares
in one or more transactions:
8
These sales may be effected at:
The shares also may be sold in one or more of the
following transactions:
In effecting sales, broker-dealers engaged by the
selling security holders may arrange for other broker-dealers to
participate. Broker-dealers will receive commissions or other
compensation from the selling security holders in amounts to be
negotiated immediately prior to the sale. Broker-dealers may
also receive compensation from purchasers of the shares that is
not expected to exceed that customary in the types of
transactions involved.
Some of the underwriters, broker-dealers, or
agents and their associates may be customers of, engage in
transactions with, or perform services for us in the ordinary
course of business.
From time to time, the selling security holders
may pledge, hypothecate or grant a security interest in some or
all of the shares owned by them. The pledges, secured parties or
persons to whom the shares have been hypothecated will, upon
foreclosure in the event of default, be deemed to be selling
security holders. The number of a selling security holders
shares offered under this prospectus will decrease as and when
it takes such actions, but the plan of distribution for that
selling security holder will otherwise remain unchanged. In
addition, a selling security holder may, from time to time, sell
the shares short, including in connection with hedging
transactions. In those instances, this prospectus may be
delivered in connection with the short sales and the shares
offered under this prospectus may be used to cover those short
sales.
The selling security holders are not obligated
to, and there is no assurance that the selling security holders
will, sell any or all of the shares covered by this prospectus.
In addition, the shares that qualify for sale under
Rule 144 of the Securities Act may be sold under
Rule 144 rather than under this prospectus. The selling
security holders also may transfer, devise, or gift the shares
by other means not described in this prospectus.
In connection with the sales by Thomas H. Lee
Equity Fund IV, L.P. of the common shares covered by this
prospectus to the selling security holders, we agreed to prepare
and file with the SEC the registration statement of which this
prospectus is a part registering the resale of those shares by
the selling security holders, including the payment of our costs
of such filing. We have also agreed not to sell or issue, or
negotiate
9
We have agreed to keep the registration statement
of which this prospectus is a part effective until the earlier
of (i) the first anniversary of the effective date of the
registration statement, or (ii) the date on which the
distribution contemplated by this prospectus has been completed.
However, at any time and from time to time, we may suspend the
availability of this prospectus, and direct the selling security
holders accordingly to discontinue offers and sales of their
common shares pursuant to this prospectus, if (a) the SEC
issues a stop order suspending the effectiveness of the
registration statement of which this prospectus is a part,
(b) any event occurs or fact exists that would result in
this prospectus containing any untrue statement of a material
fact or omitting to state a material fact required to be stated
herein or necessary to make the statements herein, in light of
the circumstances under which they were made, not misleading, or
(c) any corporate development (including, without
limitation, a potential acquisition or divestiture, a financing,
or the review by the SEC of our prior SEC filings) occurs or is
pending that, in our reasonable judgment, makes it appropriate
to suspend the availability of this prospectus.
Because a small number of customers account
for a significant percentage of our sales, our revenues could
decline if we lose any significant customer.
We may be unable to compete successfully in
the highly competitive beverage market.
If we fail to manage our expanding
operations successfully, our business and financial results may
be materially and adversely affected.
If we are unable to maintain relationships
with our raw material suppliers, we may incur higher supply
costs.
Our ingredients and packaging supplies vary
in cost and we may be unable effectively to pass rising costs on
to our customers.
Our success depends, in part, on our
intellectual property, which we may be unable to
protect.
We are not in compliance with the
requirements of the Ontario Environmental Protection Act and, if
the Ontario government seeks to enforce those requirements or
implements modifications to them, we could be adversely
affected.
Our geographic diversity subjects us to the
risk of currency fluctuations.
Our degree of leverage may adversely affect
us.
The price of our common shares may be
volatile, and a purchaser of our common shares may not be able
to resell those shares at or above the purchase price, or at
all.
announcements by us, our competitors or our
customers;
the introduction of new or enhanced products and
services by us or our competitors;
rumors relating to us or our competitors;
actual or anticipated fluctuations in our
operating results; and
general market or economic conditions.
A substantial number of our common shares
are available for sale in the public market and sales of those
shares could adversely affect the price of our common
shares.
We are subject to significant influence by
some shareholders that may have the effect of delaying or
preventing a change in control.
Exercise of options to purchase our common
shares could adversely affect the price of our common shares and
will be dilutive.
loss of key customers, particularly Wal-Mart, and
the commitment of retailer-brand beverage customers to their own
retailer brand beverage programs;
increases in competitor consolidations and other
market-place competition, particularly among branded beverage
products;
our ability to identify acquisition and alliance
candidates and to integrate into our operations the businesses
and product lines that are acquired or allied with;
fluctuations in the cost and availability of
beverage ingredients and packaging supplies, and our ability to
maintain favorable arrangements and relationships with our
suppliers;
unseasonably cold or wet weather, which could
reduce demand for our beverages;
our ability to protect the intellectual property
inherent in new and existing products;
adverse rulings, judgments, or settlements in our
existing litigation, and the possibility that additional
litigation will be brought against us;
product recalls or changes in or increased
enforcement of the laws and regulations that affect our business;
currency fluctuations that adversely affect the
exchange rate between the U.S. dollar, on the one hand, and
the Canadian dollar, the pound sterling, and certain other
currencies, on the other hand;
changes in interest rates;
changes in tax laws and interpretations of tax
laws;
changes in consumer tastes and preference and
market demand for new and existing products;
changes in general economic and business
conditions; and
increased acts of terrorism or war.
the names of the selling security holders as of
the date of this prospectus;
the number of common shares that each such holder
may offer and sell from time to time under this prospectus; and
the number of common shares beneficially owned by
each such holder as of the date of this prospectus and as of the
completion of the offering to which this prospectus relates, in
each case as determined in accordance with applicable rules
promulgated by the SEC.
Shares Beneficially
Number of Shares
Owned After Offering
Name of
Beneficially Owned
Number of Shares
Selling Security Holder
Prior to Offering
Being Offered
Number
Percentage
2,235,500
779,500
1,456,000
2.1
%
12,900
2,900
10,000
*
632,200
220,500
411,700
*
3,000,000
500,000
2,500,000
3.6
%
120,000
18,000
102,000
*
152,000
25,000
127,000
*
6,300
900
5,400
*
101,000
17,000
84,000
*
102,000
16,000
86,000
*
77,000
12,000
65,000
*
113,000
19,000
94,000
*
151,000
23,000
128,000
*
86,000
17,000
69,000
*
31,100
5,100
26,000
*
12,500
2,000
10,500
*
1,327,400
600,000
727,400
1.0
%
12,990
10,483
2,507
*
2,268,383
*
Less than 1%.
(1)
This selling security holder is either an
investment company or a portfolio of an investment company
registered under Section 8 of the Investment Company Act of
1940, as amended, or a private investment account advised by
Fidelity Management & Research Company.
(2)
T. Rowe Price Associates, Inc. acts as investment
advisor to this selling security holder and, accordingly, would
be deemed to have beneficial ownership of the shares held by
such holder, as well as shares held by the other selling
security holders for which it serves as investment advisor and
any other advisory clients over which it has investment
authority.
on the New York Stock Exchange or any other stock
exchange or automated interdealer quotation system on which the
shares are then listed or traded;
in the over-the-counter market; or
in privately negotiated transactions.
fixed prices;
prevailing market prices at the time of sale;
varying prices determined at the time of sale; or
negotiated prices.
block transactions (which may involve crosses) in
which a broker-dealer may sell all or a portion of such shares
as agent but may position and resell all or a portion of the
block as principal to facilitate the transaction;
purchases by a broker-dealer as principal and
resale by such broker-dealer for its own account;
a special offering, an exchange distribution, or
a secondary distribution in accordance with applicable New York
Stock Exchange or other stock exchange rules;
ordinary brokerage transactions and transactions
in which any such broker-dealer solicits purchasers;
sales in other ways not involving market makers
or established trading markets, including direct sales to
purchasers;
short sales;
the writing of options, whether or not the
options are listed on an options exchange;
distribution by a selling security holder to its
partners, members or stockholders;
any other method of sale permitted pursuant to
applicable law; and
any combination of any of these methods of sale.
The legality of the shares offered hereby will be passed upon for us by Drinker Biddle & Reath LLP, Philadelphia, Pennsylvania, our U.S. counsel.
The consolidated financial statements incorporated in this prospectus by reference to our Annual Report on Form 10-K filed on March 17, 2003 for the fiscal year ended December 28, 2002 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting.
We are subject to the informational requirements of the Securities Exchange Act of 1934, which require us to file annual, quarterly and special reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SECs web site at http://www.sec.gov. You may also read and copy our SEC filings at the SECs Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. You may call the SEC at 1-800-SEC-0330 for further information on the public reference facilities. In addition, our common shares are listed on the New York Stock Exchange, and our SEC filings can be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
The SEC allows us to incorporate by reference the information in documents we file with the SEC, which means that we can disclose important information to you by referring you to those documents. The information we incorporate by reference is considered to be part of this prospectus, and information in documents that we file after the date of this prospectus will automatically update and supersede the information in this prospectus.
We incorporate by reference the documents listed below and all documents filed after the date of this prospectus under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act:
1. 2002 Annual Report on Form 10-K, filed on March 17, 2003. | |
2. Quarterly Reports on Form 10-Q for the quarters ended March 29, 2003, filed on May 13, 2003, June 28, 2003, filed on August 12, 2003, and September 27, 2003, filed on November 12, 2003. |
10
3. Current Reports on Form 8-K dated April 16, 2003, July 17, 2003, and October 16, 2003. | |
4. Registration Statement on Form 8-A/12(b), filed on July 25, 2002, setting forth the description of our common shares, including any amendment or reports filed for the purpose of updating such information. |
We will provide without charge to each person to whom a copy of this prospectus is delivered, upon their written or oral request, a copy of any or all of the documents we have incorporated in this prospectus by reference. Requests for copies should be directed to:
Cott Corporation
11
Cott Corporation
2,268,383 Common Shares
PROSPECTUS
, 2004
PART II
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses, other than selling
or underwriting discounts and commissions, we will incur in connection with the
issuance and distribution of the securities being registered. All amounts
shown are estimated except the SEC registration fee.
Item 15. Indemnification of Directors and Officers.
The corporation laws of Canada and our charter and by-laws include
provisions designed to limit the liability of our officers and directors
against certain liabilities. These provisions are designed to encourage
qualified individuals to serve as our officers and directors.
Under the Canada Business Corporations Act, a corporation may indemnify
certain persons associated with the corporation or, at the request of the
corporation, another entity, against all costs, charges, and expenses
(including an amount paid to settle an action or satisfy a judgment) reasonably
incurred by him or her in respect of any civil, criminal, administrative,
investigative, or other proceeding in which he or she is involved because of
that association with the corporation or other entity. Indemnifiable persons
are current and former directors or officers, other individuals who act or
acted at the corporations request as a director or officer, or an individual
acting in a similar capacity of another entity.
The law permits indemnification only if the indemnifiable person acted
honestly and in good faith with a view to the best interests of the corporation
or, as the case may be, to the best interests of the other entity for which the
individual acted as a director or officer in a similar capacity at the
corporations request and, in the case of a criminal or administrative action
or proceeding that is enforced by a monetary penalty, he or she had reasonable
grounds for believing his or her conduct was lawful and he or she was not
judged by a court or other competent authority to have committed any fault or
omitted to do anything he or she ought to have done. With the approval of the
court, a corporation may also indemnify an indemnifiable person in respect of
an action by or on behalf of the corporation to which the indemnifiable person
is made a party because of his or her association with the corporation.
Sections 7.02 and 7.04 of our by-laws provide that, without in any manner
derogating from or limiting the mandatory provisions of the Canada Business
Corporations Act but subject to the conditions contained in the by-laws, we
shall indemnify any of our directors or officers,
II-1
former directors or officers, and each individual who acts or acted at our
request as a director or officer, or each individual acting in a similar
capacity at another entity, against all costs, charges, and expenses, including
an amount paid to settle an action or satisfy a judgment, reasonably incurred
by the individual in respect of any civil, criminal, administrative,
investigative, or other proceeding in which the individual is involved because
of that association with us or another entity to the extent that the individual
seeking the indemnity:
Both the Canada Business Corporations Act and our by-laws expressly
provide for us to advance moneys to a director, officer, or other individual
for the costs, charges, and expenses of a proceeding referenced above. The
individual is required to repay the moneys if he or she does not fulfill the
aforementioned conditions. Section 7.05 of our by-laws states that, subject to
the limitations contained in the Canada Business Corporations Act, we may
purchase and maintain insurance for the benefit of our directors and officers
as such, as the board may from time to time determine.
In addition to the provisions found in our charter and by-laws, we have
entered into an indemnification agreement with our chairman and chief executive
officer by way of an employment agreement. Under the employment agreement, if
such officer is made a party, or is threatened to be made a party, to any
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative, by reason of the fact that he is or was a director, officer, or
employee of us or is or was serving at our request 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 his alleged action in an
official capacity while serving as a director, officer, member, employee, or
agent, we shall indemnify and hold him harmless to the fullest extent legally
permitted or authorized by our charter, by-laws, resolutions of our board of
directors, or, if greater, by the laws of the Province of Ontario, and the
Federal Laws of Canada applicable to us, against all cost, expense, liability,
and loss (including, without limitation, attorneys fees, judgments, fines,
ERISA excise taxes, or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by him in connection therewith, and such
indemnification shall continue as to such officer even if he has ceased to be a
director, member, employee, or agent of us or another entity at our request and
shall inure to the benefit of the his heirs, executors, and administrators. We
are also required to advance to such officer all reasonable costs and expenses
incurred by him in connection with a proceeding within 20 days after our
receipt of a written request for such advance. Such request shall include an
undertaking by such officer to repay the amount of such advance if it shall
ultimately be determined that he is not entitled to be indemnified against such
costs and expenses.
II-2
Item 16. Exhibits.
Item 17. Undertakings.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such
II-3
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the Calculation of Registration
Fee table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however,
that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrants annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plans annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial
bona fide
offering thereof.
II-4
INFORMATION NOT REQUIRED IN PROSPECTUS
$
5,262
60,000
3,000
5,000
$
73,262
acted honestly and in good faith with a view to our best interests
or the best interest of the other entity for which the individual acted
as a director or officer or in a similar capacity at our request, as
the case may be; and
in the case of a criminal or administrative action or proceeding
that is enforced by a monetary penalty, the individual had reasonable
grounds for believing that his or her conduct was lawful.
Exhibit
Number
Description
4.1
Articles of Amalgamation of Cott Corporation (incorporated by reference
to Exhibit 3.1 to Cott Corporations Form 10-K filed on March 31, 2000 for
the fiscal year ended January 1, 2000)
4.2
By-Laws of Cott Corporation (incorporated by reference to Exhibit 3.2 to
Cott Corporations Form 10-K filed on March 8, 2002 for the fiscal year
ended December 29, 2001)
5
Opinion of Drinker Biddle & Reath LLP (filed herewith)
10.1
(*) Employment Agreement of Mark Benadiba dated October 15, 2003 (filed herewith)
10.2
(*) Agreement effective July 18, 2003 amending the Employment Agreement
between Cott Corporation and Paul R. Richardson dated August 23, 1999, as
amended (filed herewith)
10.3
(*) Agreement effective July 18, 2003 amending the Employment Agreement
between Cott Corporation and John K. Sheppard dated December 21, 2001
(filed herewith)
23.1
Consent of PricewaterhouseCoopers LLP (Independent Public Accountants of
the Registrant) (filed herewith)
23.2
Consent of Drinker Biddle & Reath LLP (included in Exhibit 5)
24
Powers of Attorney (included on signature page)
(*)
Indicates a management contract or compensatory plan.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Toronto, Ontario, Canada, on January 22, 2004.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below, does hereby constitute and appoint Frank E. Weise III and Raymond P.
Silcock, and each of them, his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this registration
statement and to file the same with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, or his or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
COTT CORPORATION
By:
/s/ Frank E. Weise III
Frank E. Weise III
Chief Executive Officer
/s/ Frank E. Weise III
Chairman and Chief Executive
Date: January 22, 2004
Officer
Frank E. Weise III
(Principal Executive Officer)
/s/ Raymond P. Silcock
Executive Vice-President and
Date: January 19, 2004
Chief Financial Officer
Raymond P. Silcock
(Principal Financial Officer)
/s/ Tina DellAquila
Vice President, Controller
Date: January 19, 2004
and Assistant Secretary
Tina DellAquila
(Principal Accounting Officer)
/s/ John K. Sheppard
President, Chief Operating
Date: January 22, 2004
Officer and Director
John K. Sheppard
/s/ Serge Gouin
Director
Date: January 19, 2004
Serge Gouin
/s/ Colin J. Adair
Director
Date: January 22, 2004
Colin J. Adair
/s/ W. John Bennett
Director
Date: January 22, 2004
W. John Bennett
/s/ C. Hunter Boll
Director
Date: January 22, 2004
C. Hunter Boll
/s/ Thomas M. Hagerty
Director
Date: January 22, 2004
Thomas M. Hagerty
/s/ Stephen H. Halperin
Director
Date: January 20, 2004
Stephen H. Halperin
/s/ David V. Harkins
Director
Date: January 22, 2004
David V. Harkins
/s/ Philip B. Livingston
Director
Date: January 20, 2004
Philip B. Livingston
/s/ Christine A. Magee
Director
Date: January 20, 2004
Christine A. Magee
/s/ Donald G. Watt
Director
Date: January 22, 2004
Donald G. Watt
EXHIBIT INDEX
Exhibit
Number
Description
4.1
Articles of Amalgamation of Cott Corporation (incorporated by reference
to Exhibit 3.1 to Cott Corporations Form 10-K filed on March 31, 2000 for
the fiscal year ended January 1, 2000)
4.2
By-Laws of Cott Corporation (incorporated by reference to Exhibit 3.2 to
Cott Corporations Form 10-K filed on March 8, 2002 for the fiscal year
ended December 29, 2001)
5
Opinion of Drinker Biddle & Reath LLP (filed herewith)
10.1
(*) Employment Agreement of Mark Benadiba dated October 15, 2003 (filed herewith)
10.2
(*) Agreement effective July 18, 2003 amending the Employment Agreement
between Cott Corporation and Paul R. Richardson dated August 23, 1999, as
amended (filed herewith)
10.3
(*) Agreement effective July 18, 2003 amending the Employment Agreement
between Cott Corporation and John K. Sheppard dated December 21, 2001
(filed herewith)
23.1
Consent of PricewaterhouseCoopers LLP (Independent Public Accountants of
the Registrant) (filed herewith)
23.2
Consent of Drinker Biddle & Reath LLP (included in Exhibit 5)
24
Powers of Attorney (included on signature page)
(*)
Indicates a management contract or compensatory plan.
Exhibit 5
DRINKER BIDDLE & REATH LLP
ONE LOGAN SQUARE
18TH & CHERRY STREETS
PHILADELPHIA, PENNSYLVANIA 19103
January 22, 2004
Cott Corporation
207 Queen's Quay West
Suite 340
Toronto, Ontario M5J 1A7
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Cott Corporation, a Canada corporation (the "Company"), in connection with the preparation and filing of a Registration Statement on Form S-3 (the "Registration Statement"), filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"), and relating to the public offering from time to time of up to 2,268,383 common shares of the Company (the "Shares") by holders identified under the caption "Selling Security Holders" in the Prospectus included in the Registration Statement.
In all cases, we have assumed the legal capacity of each natural person signing any of the documents and corporate records examined by us, the genuineness of signatures, the authenticity of documents submitted as originals, the conformity to authentic original documents of documents submitted to us as copies, and the accuracy and completeness of all records and other information made available to us by the Company.
Insofar as the opinions below relate to the laws of Ontario and the laws of Canada applicable therein, we have relied upon the opinion of Goodmans LLP, dated the date hereof and addressed to us. We express no opinion concerning the laws of any jurisdiction other than the laws of Ontario and the laws of Canada applicable therein.
Based on the foregoing, and subject to the qualifications, limitations, and assumptions stated herein, in our opinion the issuance of the Shares by the Company has been validly authorized by all necessary corporate action on the part of the Company, and such Shares have been validly issued and are fully paid and nonassessable by the Company.
We hereby consent to the filing of this opinion as an exhibit to the Company's Registration Statement and to the use of our name under the caption "Legal Matters" in the Prospectus included within the Registration Statement. In giving this consent, we do not admit that we come within the categories of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Drinker Biddle & Reath LLP DRINKER BIDDLE & REATH LLP |
Exhibit 10.1
COTT CORPORATION
207 QUEEN'S QUAY WEST
SUITE 340
TORONTO, ONTARIO
M5J 1A7
October 15, 2003
Mark Benadiba
25 Parkwood Avenue
Toronto, Ontario
M4V 2W9
Dear Mark:
RE: EMPLOYMENT AND RELATED ARRANGEMENTS - AMENDED AND RESTATED
This letter contains the terms and conditions upon which you have agreed to remain in the full-time employment of Cott Corporation ("Cott") as Executive Vice President. Currently you have responsibility for Cott Canada, Cott Asia, Cott Europe, Cott Mexico and Royal Crown International (RCI) and you report to the President and COO of Cott. This letter, once accepted by you, is intended to and shall constitute a binding legal agreement, enforceable by and against each of us in accordance with its terms.
1. BASE COMPENSATION. Your base salary shall be the annualized amount of $500,000. Your base salary shall be payable in the same manner and at the same intervals as the other senior officers of Cott. Provided that you remain in the full-time employment of Cott, your base salary will be reviewed in April of each year, and may be increased in respect of any such twelve month period by the CEO, with the advice and consent of the Human Resources and Compensation Committee of the Board. Base salary increases will be dependent, in general, upon a variety of factors, including rates of increase of other senior executive officers of Cott, rates of increase and salary levels of other executives in comparable North American industrial corporations, rates of inflation and other relevant criteria
2. BONUS COMPENSATION. You shall be entitled to an annual bonus of up to 100% of your base salary in respect of any fiscal year, payable within 30 days following the release by Cott of its year end results for such fiscal year. The bonus amount, if any, will be based on achievable and measurable criteria which we shall
mutually agree upon in April of each year. It is understood and agreed that we have agreed upon your bonus criteria in respect of 2003. If your employment terminates prior to the end of a fiscal year, any bonus earned in respect of that year shall be pro-rated accordingly. You are also entitled to participate in the Executive Incentive Share Compensation Plan.
3. EMPLOYEE BENEFITS AND PERQUISITES. You shall be entitled to any and all benefits and perquisites which are from time to time available to other senior officers of Cott, excluding the President & COO and the CEO
4. TERMINATION PAYMENTS(1).
(A) If at any time following the date of this letter agreement and prior to July 6, 2006 your employment is terminated by Cott without cause other than by reason of your death or if your position, title, duties, responsibilities and/or reporting is changed in any material respect, Cott shall pay you, within 30 days following the date of termination or change, as the case may be, an amount equal to the aggregate of (i) two times your base salary paid to you and two times the cash value of your benefits and perquisites during the most recently completed twelve calendar months prior to the date of termination and (ii) two times the greater of (A) your target base bonus at the date of termination and (B) $500,000.
(B) If at any time following the date of this letter agreement and prior to July 6, 2006 you voluntarily leave the employment of Cott other than for Good Reason, Cott shall pay you, within 30 days following your departure, an amount equal to the aggregate of (i) your base salary paid to you and the cash value of your benefits and perquisites during the most recently completed twelve calendar months prior to the end of such period and (ii) the greater of (A) your target base bonus at the date of termination and (B) $500,000.
If you receive any of the termination payments contemplated by this paragraph 4, you shall not otherwise be entitled to any other payments, compensation or damages whatsoever resulting from the termination of your employment
5. CAUSE. Whenever used in this letter, "cause" means:
(A) the willful and continued failure by you substantially to perform your duties with Cott (other than any such failure resulting from your incapacity due to physical or mental illness or any such actual or
anticipated failure resulting from termination by you for Good Reason) after a written demand for substantial performance is delivered to you by the board of directors of Cott (the "Board"), which demand specifically identifies the manner the Board believes that you have not substantially performed your duties and you failed to correct such failure to perform your duties within 30 days after such written demand is delivered to you; or
(B) the willful engaging by you in conduct that is demonstrably and materially injurious to Cott, monetarily or otherwise, and no act or failure to act on your part shall be deemed "willful" unless done, or admitted to be done, by you not in good faith and without reasonable belief that your action or omission was in the best interests of Cott.
"Good Reason" shall mean the occurrence, without your express written consent, of any of the following:
(A) Inconsistent Duties - a meaningful and detrimental alteration in your position or in the nature or status of your responsibilities from those currently in effect;
(B) Reduction in Remuneration - a reduction by Cott in your annual base salary or a material adverse change in the methodology of determining whether a bonus is payable;
(C) Benefits and Perquisites - the failure by Cott to continue to provide you, in all material respects, with benefits and perquisites which are from time to time available to other senior officers of Cott, excluding the President & COO and the CEO; and
(D) Relocation - the relocation of the office of Cott where you are currently employed to a location that is more than 50 miles away from such location, or Cott requiring you to be based more than 50 miles away from such location (except for required travel on Cott's business to an extent substantially consistent with your customary business travel obligations in the ordinary course of business).
6. ENTIRE AGREEMENT. This agreement constitutes the entire agreement between you and Cott relative to the subject matter hereof, and supersedes and replaces the agreement dated October 7, 1997, as amended from time to time. However, all confidentiality undertakings signed by you prior to the date hereof shall continue in full force and effect in accordance with their terms.
7. GOVERNING LAW. The agreement resulting from your acceptance of this letter shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. All dollar amounts used in this agreement are in lawful currency of Canada.
8. NOTICES. Wherever notice is required or desired to be given hereunder, it shall be deemed given when physically delivered to Cott (Attention: The Secretary) at its address on this letter (or at such other place as Cott may notify you from time to time) and if to you at your principal residence at the time of the giving of such notice.
9. In the event of termination Cott will pay for 5 months of professional out-placement services to a maximum of $50,000.00.
If the foregoing accurately sets forth the terms of our understanding relative to the subject matter hereof, please so signify by signing and returning to Colin Walker a duplicate original of this letter.
Yours very truly
COTT CORPORATION
Per: /s/ John K. Sheppard -------------------- Per: /s/ Colin D. Walker -------------------- ACCEPTED AND AGREED TO THIS 23rd day of October, 2003. /s/Mark Benadiba ---------------- Mark Benadiba |
Exhibit 10.2
June 20, 2003
PRIVATE AND CONFIDENTIAL: PAUL RICHARDSON
Dear Paul,
RE: CHANGE TO TERMS & CONDITIONS
Further to your discussions with myself I am pleased to be able to confirm to you in writing the following changes to your terms and conditions of employment.
JOB TITLE: President - US Division REPORTING TO: John Sheppard - COO & President of Cott Corporation SALARY: $336,000 BONUS TARGET: $375,000 BONUS LEVEL: 100% effective from 18th July 2003 PRORATED: Jan 1st to July 18th 2003 Based on Corporate Results July 18th to December 31st 2003 Based on: [ ] US Division Results OR [X] Corporate Results LOCATION: Tampa, FL EFFECTIVE DATE: July 18, 2003 |
This letter constitutes an amendment to your contract of employment and all other terms and conditions will remain as previously stated. I enclose two copies of this letter, which you should sign, returning one to me and retaining the other one for your reference.
Paul, I would like to take this opportunity to congratulate you and wish you every success in your new position. Please contact me if you have any queries with regard to the above.
Yours sincerely,
FOR COTT CORPORATION
/s/ Colin D. Walker ------------------- Colin Walker SVP, Corporate Resources |
I accept the terms and conditions as outlined in the above letter.
NAME (PLEASE PRINT): PAUL RICHARDSON --------------- SIGNED: /S/ PAUL RICHARDSON ------------------- DATE: OCTOBER 16, 2003 ---------------- |
Exhibit 10.3
June 20, 2003
PRIVATE AND CONFIDENTIAL: JOHN SHEPPARD
Dear John,
RE: CHANGE TO TERMS & CONDITIONS
Further to your discussions with myself I am pleased to be able to confirm to you in writing the following changes to your terms and conditions of employment
JOB TITLE: COO & President of Cott Corporation REPORTING TO: Frank E. Weise III - Chairman and Chief Executive Officer SALARY: Increased to $425,000 per annum BONUS TARGET: Increased to $475,000 effective from January 1, 2003 |
PRORATED: Jan 1st to July 18th 2003 Based on USA Division Results July 18th to December 31st 2003 Based on
[ ] USA Divisional Results OR [X] Combined Division Operating Results TERMINATION: Two years perquisites and continuation of health and dental benefits coverage for a period of up to 2 years or when new employment is found. LOCATION: Toronto, ON EFFECTIVE DATE: July 18, 2003 |
This letter constitutes an amendment to your contract of employment and all other terms and conditions will remain as previously stated. I enclose two copies of this letter, which you should sign, returning one to me and retaining the other one for your reference.
John, I would like to take this opportunity to congratulate you and wish you every success in your new position. Please contact me if you have any queries with regard to the above.
Yours sincerely,
FOR COTT CORPORATION
/s/ Colin Walker Colin Walker SVP, Corporate Resources |
I accept the terms and conditions as outlined in the above letter.
NAME (PLEASE PRINT): JOHN K. SHEPPARD ---------------- SIGNED: /S/ JOHN K. SHEPPARD -------------------- DATE: 10/23/03 -------- |
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 filed by Cott Corporation of our report dated January 30, 2003, relating to the consolidated financial statements of Cott Corporation, which appears in Cott Corporation's Annual Report on Form 10-K for the year ended December 28, 2002. We also consent to the incorporation by reference in this Registration Statement of our report dated January 30, 2003, relating to the financial statement schedules of Cott Corporation, which is incorporated in the Annual Report on Form 10-K for the year ended December 28, 2002. We also consent to the reference to us under the heading "Experts" in this Registration Statement.
/s/ PricewaterhouseCoopers LLP PRICEWATERHOUSECOOPERS LLP Chartered Accountants Toronto, Ontario, Canada January 22, 2004 |