As filed with the Securities and Exchange Commission on August 21, 2003
Registration No. 333- ______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
COTT CORPORATION
(Exact Name of Registrant as Specified in its Charter)
____________
CANADA NOT APPLICABLE
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
COTT CORPORATION
207 QUEEN'S QUAY WEST, SUITE 340
TORONTO, ONTARIO, CANADA M5J 1A7
(Address of Principal Executive Offices) (Zip Code)
THE RESTATED COTT USA 401(K) SAVINGS & RETIREMENT PLAN
AND
COTT BEVERAGES SAN BERNARDINO SAVINGS & RETIREMENT PLAN
(Full Title of the Plans)
COTT USA CORP.
4211 W. Boy Scout Blvd.
Suite #290
TAMPA, FLORIDA 33607
(Name and Address of Agent For Service)
(813) 313-1800
(Telephone Number, Including Area Code, of Agent For Service)
____________
Copies To:
Mark R. Halperin, Esq. Diana E. McCarthy, Esq.
SVP, General Counsel & Secretary Drinker Biddle & Reath LLP
Cott Corporation One Logan Square
207 Queen's Quay West, Suite 340 18th and Cherry Streets
Toronto, Ontario, Canada M5J 1A7 Philadelphia, PA 19103-6996
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Securities To Amount To Be Offering Price Per Aggregate Offering Amount of Registration
Be Registered Registered (1) Share (2) Price (2) Fee (2)
------------- -------------- --------- --------- -------
Common Shares, No Par 600,000 $23.15 $13,890,000 $1,123.70
Value
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plans
described herein.
(2) Pursuant to 457(h) under the Securities Act of 1933, the proposed maximum
offering price per share and the proposed maximum aggregate offering price
are estimated solely for the purposes of calculating the registration fee
required under Section 6(b) of the Securities Act of 1933 and are based
upon the average of the high and low prices for a share of common stock of
Cott Corporation on the New York Stock Exchange on August 19, 2003.
EXPLANATORY NOTE
This registration statement relates to shares of common stock of Cott
Corporation that may be acquired (1) under the Cott USA 401(k) Savings &
Retirement Plan by employees of Cott Beverages Inc. and Cott Beverages
Wyomissing Inc., both indirect wholly owned subsidiaries of Cott Corporation,
and Northeast Retailer Brands LLC, an entity in which Cott Corporation
indirectly owns a majority interest, and (2) under the Cott Beverages San
Bernardino Savings & Retirement Plan by those employees of Cott Beverages, Inc.,
an indirect wholly owned subsidiary of Cott Corporation, who are covered by the
collective bargaining agreement between Cott Beverages Inc. and the United
Industrial Workers Service, Transportation, Professional and Governmental of
North American Sub Region B. Shares of Cott Corporation's common stock acquired
under these plans are obtained from time-to-time by the plan administrators
through open market purchases at prevailing market prices. Such transactions do
not involve the original issuance by Cott Corporation of any new shares of its
common stock or result in a change in the number of outstanding shares of its
common stock.
PART I
INFORMATION REQUIRED IN THE SECTION 10 (a) PROSPECTUS
The information specified in Part I of Form S-8 is omitted from this
filing in accordance with the provisions of Rule 428 and the introductory note
to Part I of Form S-8. The documents containing the information specified in
Part I will be delivered to the participants in the Plan covered by this
registration statement as required by Rule 428(b). Such documents and the
documents incorporated by reference in this registration statement pursuant to
Item 3 of Part II below, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
The following documents, which are on file with the Securities and
Exchange Commission, are incorporated herein by reference:
a) Cott Corporation's Annual Report on Form 10-K for the year ended
December 28, 2002, filed March 17, 2003.
b) Cott Corporation's Quarterly Report on Form 10-Q for the quarter
ended March 29, 2003, filed May 13, 2003, and for the quarter
ended June 28, 2003, filed August 12, 2003.
c) Cott Corporation's Current Report on Form 8-K filed on April 16,
2003 and July 17, 2003.
d) The description of Cott Corporation's common shares contained in its
registration statement on Form 8-A12B (No. 001-31410) filed on July
25, 2002.
In addition, all documents subsequently filed by Cott Corporation or
either of the plans pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this registration statement and to be part of this registration
statement from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
The corporation laws of Canada and the by-laws of Cott Corporation include
provisions designed to provide for the indemnity of the corporation's officers
and directors against certain liabilities. These provisions are designed to
encourage qualified individuals to serve as officers and directors of Cott
Corporation.
Under the Canada Business Corporations Act (the "CBCA"), a corporation may
indemnify a director or officer of the corporation, a former director or officer
of the corporation or another individual who acts or acted at the corporation's
request as a director or officer, or an individual acting in a similar capacity,
of 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 certain civil, criminal, administrative, investigative or
other proceedings in which he or she is involved because of that association
with the corporation or other entity.
The CBCA permits indemnification and monetary advances only if the
indemnifiable person acted honestly and in good faith with a view to the best
interests of the corporation (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 to be lawful). An indemnifiable person
is entitled to the indemnity if, in addition to the foregoing, such
indemnifiable person was not adjudged by a court or other competent authority to
have committed any fault or omitted to do anything that the indemnifiable person
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.
Sections 7.02 to 7.04 of Cott Corporation's by-laws provide, without in
any manner derogating from or limiting the mandatory provisions of the CBCA but
subject to the conditions contained therein, for the indemnity of Cott
Corporation's directors or officers, former directors or officers, or a person
who acts or acted at Cott Corporation's request as a director or officer or in a
similar capacity of another entity substantially in accordance with the
provisions set out in the CBCA.
Section 7.05 of the corporation's by-laws states that subject to the
limitations contained in the CBCA, Cott Corporation may purchase and maintain
insurance for the benefit of its directors and officers as such, as the board
may from time to time determine.
In addition, Cott Corporation has entered into indemnification agreements
with certain directors and officers which embody, in all material respects, the
indemnity provisions contained in the CBCA and Cott Corporation's by-laws and
subject to the limitations contained therein.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit No. Title
----------- -----
Exhibit 4.1 The Restated Cott USA 401(K) Savings & Retirement Plan
Exhibit 4.2 First Amendment to the Restated Cott USA 401(k) Savings and Retirement Plan
Exhibit 4.3 Second Amendment to the Restated Cott USA 401(k) Savings and Retirement Plan
Exhibit 4.4 Third Amendment to the Restated Cott USA 401(k) Savings and Retirement Plan
Exhibit 4.5 Fourth Amendment to the Restated Cott USA 401(k) Savings and Retirement Plan
Exhibit 4.6 Fifth Amendment to the Restated Cott USA 401(k) Savings and Retirement Plan
Exhibit 4.7 Wachovia Bank, National Association Defined Contribution Master Plan and Trust Agreement
Exhibit 4.8 Adoption Agreement #005 Nonstandardized 401(k) Profit Sharing Plan for the Cott Beverages
San Bernardino Savings & Retirement Plan
Exhibit 4.9 EGTRRA Amendment to the Cott Beverages San Bernardino Savings & Retirement Plan
Exhibit 5.1 IRS opinion letter regarding the Cott Beverages San Bernardino Savings & Retirement Plan
Exhibit 23 Consent of PricewaterhouseCoopers LLP
Exhibit 24 Power of Attorney (included in the signature page)
The registrant hereby undertakes that it will submit or has submitted the
Restated Cott USA 401(k) Savings & Retirement Plan and any amendments thereto
to the Internal Revenue Service ("IRS") in a timely manner and has made or will
make all changes required by the IRS in order to qualify the Restated Cott USA
401(k) Savings & Retirement Plan under Section 401 of the Internal Revenue Code.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales or 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 Securities and Exchange 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 the
"Calculation of Registration Fee" table in the effective registration statement
and;
(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.
(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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's 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.
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 and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 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 indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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 of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned thereunto duly
authorized, in Toronto, Ontario, Canada, on this 21st day of August, 2003.
COTT CORPORATION
By: /s/ Frank E. Weise
------------------
Frank E. Weise, Chairman and Chief
Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Mark R.
Halperin as such person's true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for such person and in such person's
name, place and stead, in any and all capacities, to sign any and all amendments
to the 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 attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done as fully to all intents and purposes as such person might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or a 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 below by the following persons in the
capacities and on the dates indicated.
/s/ Frank E. Weise III Chairman and Chief Executive Officer Date: August 21, 2003
---------------------- (Principal Executive Officer)
Frank E. Weise III
/s/ John K. Sheppard Director, President and Chief Date: August 21, 2003
-------------------- Operating Officer
John K. Sheppard
/s/ Raymond P. Silcock Executive Vice President and Chief Date: August 21, 2003
---------------------- Financial Officer
Raymond P. Silcock (Principal Financial Officer)
/s/ Tina Dell'Aquila Vice-President, Controller and Date: August 21, 2003
-------------------- Assistant Secretary
Tina Dell'Aquila (Principal Accounting Officer)
/s/ Serge Gouin Director Date: August 21, 2003
---------------
Serge Gouin
/s/ Colin J. Adair Director Date: August 21, 2003
------------------
Colin J. Adair
/s/ W. John Bennett Director Date: August 21, 2003
-------------------
W. John Bennett
/s/ C. Hunter Boll Director Date: August 21, 2003
------------------
C. Hunter Boll
/s/ Thomas M. Hagerty Director Date: August 21, 2003
---------------------
Thomas M. Hagerty
/s/ Stephen H. Halperin Director Date: August 21, 2003
-----------------------
Stephen H. Halperin
/s/ David V. Harkins Director Date: August 21, 2003
--------------------
David V. Harkins
/s/ Christine A. Magee Director Date: August 21, 2003
----------------------
Christine A. Magee
/s/ Donald G. Watt Director Date: August 21, 2003
------------------
Donald G. Watt
/s/ Philip B. Livingston Director Date: August 21, 2003
------------------------
Philip B. Livingston
THE PLANS
Pursuant to the requirements of the Securities Act of 1933, the plan
administrators have duly caused this registration statement to be signed on
behalf of the undersigned, thereunto duly authorized, in the city of
Columbus, state of Georgia, on August 21, 2003.
Cott USA 401(k) Savings & Retirement Plan,
by the Administrative Committee
/s/ Linda Marie Holliday
------------------------
Linda Marie Holliday, Member
/s/ Vince Vaccaro
-----------------
Vince Vaccaro, Member
/s/ Kimberly Helton
-------------------
Kimberly Helton, Member
/s/ Charlotte Pope
------------------
Charlotte Pope, Member
/s/ Jeff Blade
--------------
Jeff Blade, Member
/s/ Jim Peacock
---------------
Jim Peacock, Member
/s/ Sher Zaman
--------------
Sher Zaman, Member
Cott Beverages San Bernardino Savings &
Retirement Plan, by the Administrative
Committee
/s/ Linda Marie Holliday
------------------------
Linda Marie Holliday, Member
/s/ Vince Vaccaro
-----------------
Vince Vaccaro, Member
/s/ Kimberly Helton
-------------------
Kimberly Helton, Member
/s/ Charlotte Pope
------------------
Charlotte Pope, Member
/s/ Jeff Blade
--------------
Jeff Blade, Member
/s/ Jim Peacock
---------------
Jim Peacock, Member
/s/ Sher Zaman
--------------
Sher Zaman, Member
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act of
1933, the authorized representative has duly caused this registration statement
to be signed on its behalf by the undersigned, solely in its capacity as the
duly authorized representative of Cott Corporation in the United States, on the
21st day of August, 2003.
Cott USA Corp.
(Authorized Representative)
By: /s/ Mark Halperin
-----------------
Mark Halperin, Senior Vice President
and Secretary
EXHIBIT INDEX
Exhibit No. Title
----------- -----
Exhibit 4.1 The Restated Cott USA 401(K) Savings & Retirement Plan
Exhibit 4.2 First Amendment to the Restated Cott USA 401(k) Savings and Retirement Plan
Exhibit 4.3 Second Amendment to the Restated Cott USA 401(k) Savings and Retirement Plan
Exhibit 4.4 Third Amendment to the Restated Cott USA 401(k) Savings and Retirement Plan
Exhibit 4.5 Fourth Amendment to the Restated Cott USA 401(k) Savings and Retirement Plan
Exhibit 4.6 Fifth Amendment to the Restated Cott USA 401(k) Savings and Retirement Plan
Exhibit 4.7 Wachovia Bank, National Association Defined Contribution Master Plan and Trust Agreement
Exhibit 4.8 Adoption Agreement #005 Nonstandardized 401(k) Profit Sharing Plan for the Cott Beverages
San Bernardino Savings & Retirement Plan
Exhibit 4.9 EGTRRA Amendment to the Cott Beverages San Bernardino Savings & Retirement Plan
Exhibit 5.1 IRS opinion letter regarding the Cott Beverages San Bernardino Savings & Retirement Plan
Exhibit 23 Consent of PricewaterhouseCoopers LLP
Exhibit 24 Power of Attorney (included in the signature page)