SunOpta Inc: Exhibit 10.1- Filed by newsfilecorp.com






 

February 25, 2019

VIA EMAIL AND HAND DELIVERED COURIER

WITHOUT PREJUDICE
CONFIDENTIAL

David Colo
[Address omitted] 

Dear David:

This letter will confirm our discussion today in which you were
advised that SunOpta Inc. ("SunOpta") has decided to terminate your employment.
The effective date of the termination of your employment is February 26, 2019
(the "Termination Date") and this letter will be your written notice of
termination.

Effective as of the Termination Date, this letter will
terminate any employment you have with any parent, subsidiary, affiliate,
predecessor or successor of SunOpta. Other than as expressly set out herein,
this letter will also terminate any obligations owed to you by SunOpta pursuant
to any agreement, specifically including the Executive Employment Agreement
between you and SunOpta made as of February 2, 2017 (the
"Employment Agreement"). Capitalized terms not defined in this
letter have the meanings ascribed in the Employment Agreement.

You will, of course, receive all base salary earned by you
through the Termination Date and payment for any accrued and unused paid time
off ("PTO") owed to you, which amounts are set forth in Schedule "A"
hereto. To the extent not otherwise specifically continued pursuant to this
letter, all payments, benefits, perquisites or other entitlements of any type
will end on Termination Date.

	1. 	Severance and Other Payments
  
	  	  
	In accordance with the requirements of the
      Employment Agreement, SunOpta will provide you with the payments and
      entitlements d escribed in Schedule "A", all subject to the terms and
      conditions set out in this letter (including, with respect to payments and
      entitlements set forth on Schedule A other than those d escribed u n d er
      “Base Salary and Paid Time Off as of the Termination Date” and “Expense
      Reimbursement”, delivery by you of a Release in the form attached as
      Schedule "B" hereto, and confirmation of your acceptance of these terms
      and conditions evidenced by you signing the Acceptance at the end of this
      letter); once signed by you, this letter, including Schedule "A" and Schedule "B"
hereto, shall also be referred to as "this agreement".






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	2. 	No Other Payments 
	  	  
	The payments, benefits and other entitlements set
      out in this letter shall constitute your complete
    entitlement
      and SunOpta's complete obligations to you whatsoever, including with
      respect to the cessation of your employment, whether at
      common law, statute or contract. For greater certainty,
      you confirm that, other than the payments and entitlements set out in
      paragraph 1above and Schedule "A" hereto, you have no further payment
      (including any bonus payments), benefits, perquisites,
      allowances or entitlements earned or owing to you from SunOpta pursuant to any employment or any other agreement whatsoever
      (specifically including the Employment Agreement), all of
      which shall cease on the Termination Date without further obligation to
      you from
      SunOpta.



	3. 	
      Your Continuing Obligations

	 	 	 
		(a) 	
      Employment Agreement: Notwithstanding the
      cessation of your employment and in consideration of the p ayments and b
      enefits set o u t in this agreement, you represent and warrant that you
      have abided by all of the obligations set out in the Employment Agreement
      and you confirm and agree that, the provisions of the Employment Agreement
      relating to Confidentiality, Non-Competition and Non- Solicitation shall
      survive the cessation of your employment and the termination of the
      Employment Agreement and shall be enforceable in accordance with their
      terms.

	 	 	 
		(b) 	
      Resignation o f All Other Positions: Upon the
      Termination Date, you h ereby confirm your resignation from all positions
      held by you as a director, officer or other fiduciary of the Company,
      including any and all affiliates.

	 	 	 
		(c) 	
      Return of Property: You are required to return
      immediately to SunOpta all of the property of SunOpta in your possession
      or in the possession of your family or agents including, without
      limitation, wireless devices and accessories, computer and office
      equipment, keys, passes, credit cards, customer lists, sales materials,
      manuals, computer information, software and codes, files and all
      documentation (and all copies thereof) d ealing with the finances,
      operations and activities o f SunOpta, its customers, employees, partners,
      investors or suppliers.

	 	 	 
		(d) 	
      Release: You will execute and return the Release
      attached as Schedule "B" hereto, the terms o f which are incorporated h
      erein and the d elivery of which is a condition of any payment to you by
      SunOpta other than for all base salary earned by you through the
      Termination Date and payment for any accrued and unused PTO and
      reimbursement of properly incurred unreimbursed business
  expenses.

	 	 	 
		(e) 	
      Cooperation: During the 12 -month period following
      the Termination Date, at SunOpta's request, you agree to cooperate
      reasonably with SunOpta and its legal advisors in connection with (i) any
      business matters in which you were involved or (ii) any existing or
      potential claims, investigations, administrative
  proceedings, lawsuits and other legal and business matters which arose d
uring your employment or involving SunOpta with respect to which you have
knowledge of the underlying facts. 







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	4. 	
      General

	 	 	 
		(a) 	
      Entire Agreement: This agreement constitutes the
      entire agreement between you and SunOpta with reference to any of the
      matters herein provided or with reference to your engagement, any
      employment or office with SunOpta or the cessation thereof. All promises,
      representations, collateral agreements, offers and understandings n o t
      expressly incorporated in this agreement are h ereby superseded and have
      no further effect. For certainty, this agreement replaces and supersedes
      any obligation owed to you by SunOpta pursuant to the Employment
      Agreement.

	 	 	 
		(b) 	
      Full Understanding: By signing this agreement, you
      confirm that: (i) you have had an adequate opportunity to read and
      consider the terms set out herein, including the Release, and that you
      fully understand them and their consequences; (ii) you have been advised
      to consult with legal counsel of your choosing and that you have obtained
      such legal or other advice as you have considered advisable; and (iii) you
      are signing voluntarily, without coercion, and without reliance on any
      representation, express or implied, by SunOpta, or by any director,
      officer, shareholder, employee or other representative of SunOpta; and
      (iv) this agreement and any payment referred to herein is not an admission
      of liability on SunOpta's part.

	 	 	 
		(c) 	
      Taxes: All payments referred to in this agreement
      will be less applicable withholdings and deductions (if any) and you shall
      be responsible for all tax liability resulting from your receipt of the
      payment and benefits referred to in this letter, except to the extent that
      SunOpta h as withheld funds for remittance to statutory
  authorities.

	 	 	 
		(d) 	
      Severability: You hereby agree that each p
      rovision and the subparts of each provision of this agreement shall be
      treated as separate and independent clauses, and the u n enforceability o
      f any o n e clause shall in n o way impair the enforceability o f any of
      the o ther p rovisions o f this agreement (which shall continue to be
      enforceable).

	 	 	 
		(e) 	
      Governing Law: This agreement, for all p u rposes,
      shall be construed in accordance with the laws of the state of Minnesota
      without regard to conflicts of law principles. Any action or proceeding by
      either of the parties to enforce this agreement shall be brought only in a
      state or federal court located in the state of Minnesota. The parties
      hereby irrevocably submit to the exclusive jurisdiction of such courts and
      waive the defense of inconvenient forum to the maintenance of any such
      action or proceeding in such venue.



*** 




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Your acceptance of the terms and conditions of this letter may
be signified by signing and returning a duplicate of this letter, where
indicated, together with the Release attached as Schedule "B" hereto. We would
appreciate hearing from you by no later than twenty-one (21) days from the date
of this letter.

We wish you well in your future endeavors. Sincerely,

SUNOPTA INC. 

 

Jill Barnett
General Counsel & Corporate
Secretary

ACCEPTANCE:

I hereby acknowledge receipt of this letter, and hereby accept
and agree to be bound by the terms and conditions set out in this letter
together with the enclosed Release.

	/s/ David J. Colo 	 	3/5/19
	David Colo 	 	
    Date  






     SCHEDULE "A"
Severance
and Other Entitlements

Note: All amounts are in U.S. Dollars and are subject to
applicable withholdings and deductions. 


	  	Employment Agreement Entitlement

	Base Salary and Paid Time Off as
      of Termination Date: 	Pro-rated portion of base salary (at
      $650,000 per year) from last pay period
      until the Termination Date is $17,500 (for 7 days). Accrued and unused PTO owed to you (based on 40 hours
      carryover in 2018 and 38.46 unused PTO hours for 2019) is
      $24,518.75.

	Severance Payment: 

	
      You are entitled to receive a severance payment of $1,050,000 in 
      accordance with the terms of your Employment Agreement, which includes the
      sum of (i) one and a half (1.5) times your base salary ($975,000), and
      (ii) $75,000 in satisfaction of any amounts payable pursuant to Section
      5.3(c) of the Employment Agreement (the "Severance Payment"). The
      Severance Payment will be payable to you within 60 days from the
      Termination Date. 

	Special RSUs: 
	All unvested Special RSUs shall
      immediately vest on the Termination Date and be settled in accordance with
      the terms of the applicable Special Award Agreement. 
	Special Options and 
Special PSUs:
      	All Special Options and Special PSUs
      which have not vested as of the Termination Date in accordance with your
      Employment Agreement will immediately be forfeited and cancelled effective
      as of the Termination Date. You will not be entitled to any payment in
      lieu of such forfeited and cancelled Special Options or Special PSUs.
	Expense 
Reimbursement: 	You will be reimbursed for any
      properly incurred but unreimbursed business expenses through the
      Termination Date. 







SCHEDULE "B" 
Release

	FROM: 	David Colo 
	  	  
	TO: 	SunOpta Inc., its affiliates, subsidiaries,
      parents and related organizations and their respective partners, directors,
      officers, shareholders, employees and agents (collectively "SunOpta") 



	1. 	
      Full and Final Release. In consideration of the
      terms of the letter from SunOpta Inc. to me, David Colo, dated February
      25, 2019 (the "Letter Agreement"), which terms are deemed to b e and are
      accepted by me in full and final satisfaction o f the Executive Employment
      Agreement between SunOpta and me, David Colo, made on February 2, 2017
      (the receipt and sufficiency of which consideration are hereby
      acknowledged) and except for SunOpta's o b ligations referred to in the
      Letter Agreement, I, David Colo, personally and for my h eirs, executors,
      administrators, successors and assigns, fully, finally and forever
      releases and discharges SunOpta and its affiliates, as well as their
      respective successors, assigns, o fficers, owners, d irectors, agents,
      representatives, attorneys, and employees (all of whom are referred to
      throughout this Release as the “Released Parties”), of and from all
      claims, demands, actions, causes of action, suits, damages, losses, and
      expenses, of any and every nature whatsoever, as a result of actions or
      omissions occurring through the date I sign this Release. Specifically
      included in this waiver and release are, among other things, any and all
      claims of alleged employment discrimination and retaliation prohibited by
      Title VII of the Civil Rights Act of 1964, the Americans with Disabilities
      Act, the Age Discrimination in Employment Act, including the amendments
      provided by the Older Workers Benefits Protection Act, or any other
      federal, state or local statute, rule, ordinance, or regulation, as well
      as any claims under common law for tort, contract, or wrongful
      discharge.

	 	 
	2. 	
      Compliance with Older Worker Benefit Protection Act. This Release is subject to the Older Workers Benefit Protection Act
      (“OWBPA”), which provides that I cannot waive a right or claim under the
      Age Discrimination in Employment Act (the “ADEA”) unless the waiver is
      knowing and voluntary. I acknowledge and agree that I have executed this
      Release v o luntarily and with full k n o wledge of its consequences. I
      acknowledge and agree that: (a) this Release is written in language I
      understand; (b) this Release applies to any rights I may have under the
      ADEA; (c) this Release does not apply to any rights or claims I may have
      under the ADEA which arise after the date I execute this Agreement; (d) I
      am advised to consult with an attorney before signing this Release; (e)
      SunOpta is giving me a period of twenty-one (21) days to consider this
      Release. I may accept and sign this Release before the expiration of the
      twenty-one (21) day period, but I am not required to do so by SunOpta; (f)
      for a period of fifteen (15) days following the signing of this Release, I
      may revoke the waiver of the ADEA claims in this Release by personally
      delivering o r by mailing (postmarked within fifteen d ays after I sign
      this release) written notice of revocation to SunOpta; (g) this Release
      shall become effective on the sixteenth day after I sign it, and any
      revocation shall apply only to ADEA claims. Except as to the ADEA claims,
      this Release will remain in full force and
effect.








	3. 	
      Exceptions to the Release. The above release does
      not waive claims (i) for unemployment or workers’ compensation benefits,
      (ii) for vested rights under ERISA-covered employee benefit plans as
      applicable on the date I sign this Release, (iii) that may arise after I
      sign this Release, and (iv) which cannot be released by private agreement.
      I understand that nothing in this Release (a) prevents me from filing a
      charge or complaint with or from participating in an investigation or
      proceeding conducted by the EEOC, the National Labor Relations Board, the
      Securities and Exchange Commission, or any other federal, state o r local
      agency charged with the enforcement o f any laws, including p roviding
      documents o r other information, or (b) p revents me from exercising my
      rights u n d er Section 7 of the NLRA to engage in protected, concerted
      activity with other employees, although by signing this Release, I am
      waiving my right to recover any individual relief (including any backpay,
      frontpay, reinstatement or other legal or equitable relief) in any charge,
      complaint, or lawsuit or other proceeding brought by me or a third party
      on my behalf, except for any right I may have to receive a payment from a
      government agency (and not SunOpta) for information provided to the
      government agency.



SIGNED this 5thday of March, 2019.

	/s/ David J. Colo                                        
    
	David Colo