STKL SunOpta Inc

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December 5, 2023

PRIVATE & CONFIDENTIAL

Joe Ennen

Address Omitted

Dear Joe:

As a follow-up to our discussions regarding your intent to retire, this letter (the "Amendment") will serve to amend certain provisions of the Employment Agreement, dated March 29, 2019, between you and SunOpta Inc. (the "Agreement"), and the equity award agreements relating to the Restricted Stock Units (RSUs), Stock Options, and Performance Share Units (PSUs) described below. This Amendment is necessary to ensure a smooth and orderly transition of the Chief Executive Officer role at SunOpta, which the Board believes is in the best interests of all stakeholders.

Transition Period

It is essential to have your continued support and cooperation during a period of transition to ensure an organized and efficient transfer of affairs. Therefore, your employment with SunOpta will cease on April 1, 2024 (the "Departure Date"). Between January 2, 2024 and the Departure Date (the "Transition Period"), your title and role will change to "Advisor", reporting to myself. You will perform the agreed upon duties of this position in the same professional manner that you always have through the Departure Date and you will not terminate your employment prior to the Departure Date for any reason, other than death or disability. Such duties of this role will include, but are not limited to: (a) introducing the new CEO to the top 10 investors through in-person meetings as requested by the Company; (b) introducing the new CEO to the Company's top customers; (c) participating in on-site communication activities with Company employees and the new CEO in order to facilitate a seamless transition; (d) completing year end performance reviews of employees; (e) assisting with the completion and review of the year end financials and earnings call preparation; (f) advising the CEO as needed; and (g) any other duties as requested by the Company. You will cease to be a director on the board of SunOpta Inc. on January 2, 2024, and your execution of this Amendment will serve as your resignation as a director effective on that date.

In return, the Company will maintain your salary and benefits, less applicable deductions and withholdings, and continue your eligibility for the 2023 Short-Term Incentive Plan (STIP) subject, of course, to your continuing to be actively employed through the entirety of the Transition Period. Payment for any accrued and unused vacation owed to you, which shall be calculated after the Departure Date, will be paid out on the following payroll date. You will be eligible to participate in the 2024 STIP on a prorated basis.  Any resulting payout will be based on the Company's year-end financial results as determined in the 2024 STIP document and prorated for you based upon the percentage of time you were employed for fiscal year 2024. Such bonus payment, if any, will be paid out to you (including the vesting of any applicable PSUs) in accordance with the normally scheduled payout date for all eligible Company employees under the plan and does not require you to be employed by the Company on the payout date.

 

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Additionally, the RSUs and the stock options listed on Schedule A shall accelerate and immediately vest on April 1, 2024 (the end of the Transition Period). You shall have the right to exercise any vested stock options until April 1, 2025 (12 months following the end of the Transition Period). If you fail to exercise your options on or before April 1, 2025, they will expire and cease to be of any further force or effect as of that date. You will continue to be eligible to have the PSUs listed on Schedule A vest on the applicable vesting date, based on the achievement of the applicable performance hurdles.

Should you leave the Company's employment prior to the end of the Transition Period, and such early departure is not mutually agreed upon by you and the Company, or if the Company terminates you for Cause (as defined in the Agreement) prior to the end of the Transition Period, then all of the preceding compensation and benefits, including eligibility for the 2023 STIP if it has not already been paid out, eligibility for the 2024 STIP, accelerated vesting of RSUs and stock options, continued eligibility of the PSUs and the extended exercise period for the stock options, will terminate, forfeit or cancel as of your last day of employment. You will not be entitled to benefits under Section 5.3 of the Agreement if your employment is terminated during the Transition Period.

The Company will provide you with a payment for any outstanding business expenses incurred up to and including your Departure Date in accordance with Company policy. Please submit all claims no later than two weeks from your Departure Date so that these can be reviewed and paid.

The payments, benefits and other entitlements set out in this Amendment 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.

Your Continuing Obligations

(a) Employment Agreement:  Notwithstanding the cessation of your employment and in consideration of the payments and benefits set out in this Amendment, you represent and warrant that you have abided by and you confirm that you will continue to abide by all of the obligations set out in the Employment Agreement.

(b) Return of Property: Upon your Departure Date, you are required to return immediately to the Company all of the property of the Company 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) dealing with the finances, operations and activities of the Company, its customers, employees, partners, investors or suppliers.

(c) Confidentiality: You acknowledge that the provisions of Section 6.2 of the Agreement shall continue.

 

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(d) Non-Competition: You acknowledge that the provisions of Section 6.3 of the Agreement shall continue.

(e) Non-Solicitation of Customers and Employees: You acknowledge that the provisions of Section 6.4 of the Agreement shall continue.

(f) Release: You will execute and return the Release attached as Schedule "B" hereto, the terms of which are incorporated herein and the delivery and non-revocation of which is a condition of any payment to you by the Company.

(g) Co-operation: During the 12-month period following the Departure Date, at the Company's request, you agree to cooperate reasonably with the Company and its legal advisors in connection with any existing or potential claims, investigations, administrative proceedings, lawsuits and other legal and business matters which arose during your employment or involving the Company with respect to which you have knowledge of the underlying facts. The Company will reimburse you for reasonable out of pocket expenses in connection with the cooperation described in this paragraph.

General

(a) Entire Agreement:  This Amendment and the Agreement constitutes the entire agreement between you and the Company with reference to any of the matters herein provided or with reference to your engagement, any employment or office with the Company or the cessation thereof. All promises, representations, collateral agreements, offers and understandings not expressly incorporated in this Amendment are hereby superseded and have no further effect.  Any conflict between the Amendment and the Agreement shall be governed by the Amendment. 

(b) Full Understanding:  By signing this Amendment, 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 the Company, or by any director, officer, shareholder, employee or other representative of the Company.

(c) Severability: You hereby agree that each provision and the subparts of each provision of this Amendment shall be treated as separate and independent clauses, and the unenforceability of any one clause shall in no way impair the enforceability of any of the other provisions of this Amendment (which shall continue to be enforceable).

(d) Governing Law:  This Amendment, for all purposes, 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 Amendment 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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Except as expressly amended in this Amendment, the terms and conditions of the Agreement shall remain in full force and effect.

Thank you again for your valued contributions to SunOpta. We wish you well!

Sincerely,

SUNOPTA INC.

/s/ Dean Hollis

Dean Hollis

Chair

 

ACCEPTANCE:

I hereby acknowledge receipt of this Amendment, and hereby accept and agree to be bound by the terms and conditions set out in this Amendment. 

 

/s/ Joe Ennen		12/6/2023
Joseph Ennen		Date

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Schedule A

Equity:

The following unvested RSUs and stock options granted to you as part of the Company's annual long-term incentive plan shall accelerate and immediately vest on April 1, 2024, subject to your continued employment with the Company through April 1, 2024. The following PSUs will vest of the dates noted below based on the achievement of the performance hurdle. Any PSUs that do not meet the performance requirements will be forfeited and cancelled and you will not be entitled to any payment in lieu of such forfeited and cancelled awards. Your vested options can be exercised until the earlier of (i) the expiry date of the option or (ii) April 1, 2025. A summary of your equity awards is provided below. Equity Type Grant Date Vesting Date Number Stock Options May 5, 2022 678,024 Stock Options July 10, 2023 95,873 RSUs July 10, 2023 55,067 PSUs (prorated for employment during the cycle) May 5, 2022 May 5, 2025 340,078 Actual number of PSUs to vest will be determined based on actual performance hurdle achievement at the end of the performance period pursuant to the terms of the award agreement PSUs (prorated for employment during the cycle) July 10, 2023 April 15, 2026 119,728 Actual number of PSUs to vest will be determined based on actual performance hurdle achievement at the end of the performance period pursuant to the terms of the award agreement

 

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Schedule B

FORM OF RELEASE OF CLAIMS

Release

FROM: Joseph Ennen

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, Joseph Ennen, dated December 5, 2023 (the "Letter Agreement"), which terms are deemed to be and are accepted by me in full and final satisfaction of the Executive Employment Agreement between SunOpta and me, Joseph Ennen, made on March 29, 2019 (the receipt and sufficiency of which consideration are hereby acknowledged) and except for SunOpta's obligations referred to in the Letter Agreement, I, Joseph Ennen, personally and for my heirs, executors, administrators, successors and assigns, fully, finally and forever releases and discharges SunOpta and its affiliates, as well as their respective successors, assigns, officers, owners, directors, 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 voluntarily and with full knowledge 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 or by mailing (postmarked within fifteen days 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.

 

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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) any claims under Executive's director and officer indemnification agreement or pursuant to the Company's or any Subsidiary's charter documents; (iv) rights to group medical or group dental insurance coverage pursuant to Section 4980B of the Internal Revenue Code of 1986, as amended ("COBRA"), (v) with respect to any rights under the equity award agreements with the Company, as the same may be modified by the terms of the Employment Agreement, (vi) that may arise after I sign this Release, and (vi) 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 or local agency charged with the enforcement of any laws, including providing documents or other information, or (b) prevents me from exercising my rights under 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 5th day of December, 2023.

 

_/s/ Joe Ennen__________________________________

Joseph Ennen

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Exhibit 10.2

EXECUTIVE EMPLOYMENT AGREEMENT

THIS EXECUTIVE EMPLOYMENT AGREEMENT made as of December 1, 2023 between Brian W. Kocher (the "Executive") and SunOpta Inc., a corporation existing under the laws of Canada (the "Company");

WHEREAS effective as of January 2, 2024 (the "Effective Date"), the Company wishes to employ the Executive as the Chief Executive Officer of the Company pursuant to the terms and conditions set forth in this Agreement and the Executive wishes to be employed by the Company on such terms and conditions;

NOW, THEREFORE, in consideration of the mutual covenants, promises and obligations set forth herein, the parties agree as follows:

ARTICLE 1
TERM

The Executive's employment hereunder shall be effective as of the Effective Date and, subject to Article 5, shall be for an indefinite term ending on the Termination Date (the "Employment Term").

ARTICLE 2
POSITION AND DUTIES

2.1 Position.

The Executive shall serve as the Chief Executive Officer of the Company, at all times reporting to the board of directors of the Company (the "Board"). In such position, the Executive shall have such duties, authority and responsibility as shall be determined from time to time by the Board, which duties, authority and responsibility are consistent with the Executive's position. In addition, the Company will nominate Executive for a seat on the Board during the Employment Term. The Executive shall be an officer of the Company and serve as a director of the Company for no additional compensation and, if requested, also serve as an officer or director of any affiliate of the Company. On the Effective Date, the Executive and the Company will enter into a director and officer indemnification agreement in the Company's standard form.  In addition, the Company shall provide at its cost, directors and officers liability coverage for the Executive with a coverage limit that is consistent with what is provided to the officers and directors of the Company.

2.2 Duties.

During the Employment Term, the Executive shall devote his full business time and attention to the performance of the Executive's duties hereunder and will not engage in any other business, profession or occupation for compensation or otherwise. Notwithstanding the foregoing, the Executive will be permitted to, with the prior written consent of the Board, which consent will not be unreasonably withheld or delayed, act or serve as a director, trustee or committee member of any civic or charitable organization, or a for-profit business not to exceed one for-profit board, as long as such activities are disclosed in writing to the Company in accordance with the Company's Code of Conduct, and do not materially interfere with the performance of the Executive's duties and responsibilities to the Company.

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ARTICLE 3
PLACE OF PERFORMANCE

The formal principal place of the Executive's employment shall be the Company's U.S. head office currently located in Eden Prairie, Minnesota (the "Principal Office") and shall be the location Executive spends the majority of his time; provided that Executive shall be entitled to work remotely on occasion; provided further that, the Executive may be required to travel on Company business during the Employment Term.

ARTICLE 4
COMPENSATION

4.1 Base Salary.

Commencing as of the Effective Date, the Company shall pay the Executive an annual rate of base salary of US$800,000, in periodic installments in accordance with the Company's customary U.S. payroll practices, but no less frequently than monthly. The Executive's base salary shall be reviewed annually by the Board and the Board: (i) may, but shall not be required to, increase the base salary during the Employment Term; and (ii) may not decrease the Base Salary during the Employment Term. The Executive's annual base salary, as in effect from time to time, is hereinafter referred to as "Base Salary".

4.2 Annual Bonus.

(a) The Executive shall have the opportunity to earn an annual bonus (the amount actually earned, the "Annual Bonus") based on, and subject to, the achievement of annual performance goals established by the Board of Directors (the "Board"), after consultation with the Executive. The target annual bonus opportunity will be 125% of the Base Salary (the amount available to be earned, the "Target Bonus") for the applicable year, with a maximum potential of two times target (i.e., 250% of the Base Salary). The Executive's Target Bonus may be reviewed annually by the Board and the Board: (i) may, but shall not be required to, increase the Target Bonus during the Employment Term; and (ii) may not decrease the Target Bonus during the Employment Term below 125% of the Base Salary.

(b) Except as otherwise provided in Article 5, (i) the Annual Bonus (including the Target Bonus) will be subject to the terms of the Company annual bonus plan under which it is granted, as such plan may be adopted and revised prospectively from time to time by the Board, and (ii) except as otherwise set forth herein, in order to be eligible to receive an Annual Bonus, the Executive must be employed by the Company on the date that Annual Bonuses are paid to other similarly situated executives of the Company. For this purpose, the Executive's employment is deemed to cease on the Termination Date (as defined in Section 5.7).

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4.3 Equity Compensation.

(a) On the Effective Date, the Executive shall be granted special one-time awards of (i) a number of restricted stock units determined by dividing US$800,000 by the closing price of the Company's common stock as reported on Nasdaq on the Executive's first day of employment, or if there has been no sale on that date, on the last preceding date on which a sale occurred (the "Closing Price") pursuant to and subject to the terms of the Restricted Stock Unit Award Agreement substantially in the form attached as Appendix A of this Agreement (the "Special RSUs"), (ii) a number of time-based stock options determined by dividing US$800,000 by the current Black/Scholes value of one option on the terms described herein with an exercise price equal to the Closing Price and subject to the terms of the Stock Option Award Agreement substantially in the form attached as Appendix B of this Agreement (the "Special Options"), and (iii) a number of performance share units determined by dividing US$1,600,000 by the Closing Price and subject to the terms of the Performance Share Unit Award Agreement substantially in the form attached as Appendix C of this Agreement (the "Special PSUs").

(b) Additionally, the Company shall grant an additional number of restricted stock units (the "Matching RSUs" and together with the Special RSUs, Special Options and Special PSUs, the "Special Awards") equal to the number of shares of the Company's common stock purchased by Executive on the open market within seventy-five (75) calendar days after Executive's first day of employment, provided that the value of the Matching RSUs will not exceed US$1,000,000, with the value per share for this purpose equal to the average cost per share paid by Executive in making such purchases. The Matching RSUs shall be subject to the restrictions, terms and conditions set forth in the Restricted Stock Unit Award Agreement substantially in the form attached as Appendix A of this Agreement. All stock purchases by the Executive shall be in accordance with the Company's insider trading policy.

(c) On the Effective Date, the Company and the Executive shall execute the award agreements substantially in the forms attached as Appendix A (with respect to the Special RSUs), Appendix B (with respect to the Special Options) and Appendix C (with respect to the Special PSUs) (collectively, the "Special Award Agreements"), and with the exercise price of the Special Options equal to the Closing Price. Within 90 days following the Executive's first day of employment, the Company and the Executive shall execute a Special Award Agreement substantially in the form attached as Appendix A with respect to the Matching RSUs and with the same vesting schedule applicable to the initial grant of the Special RSUs. The stock purchases made by the Executive during the first 75 days of employment shall be retained as part of the Executive's stock ownership requirement as further described in Section 7.2 and in accordance with the Company's stock ownership policy. The Company shall have the right in its sole discretion to cancel all or part of the additional Matching RSU grant in the event the Executive, during the vesting period, disposes of any of the purchased stock.

The equity grants described in paragraphs (a) and (b) above are intended to represent sign-on inducement awards and one year of grants representing annual long-term incentive participation.  The Executive shall be eligible to receive an annual long-term incentive award in 2025, and each year thereafter during the Executive's employment with the Company, at the time of annual grants to other Company executives, with a grant date fair value (at target) of no less than two hundred percent (200%) of Base Salary. Any future restricted stock units ("RSUs"), stock options ("Options"), performance share units ("PSUs") or other form of equity compensation award granted to the Executive shall be determined by the Board, in its discretion, and subject to terms and conditions of such award grants.

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4.4 Employee Benefits.

Subject to the terms and conditions of the applicable plans and policies, each as amended from time to time, during the Employment Term, the Executive shall be entitled to participate in all employee pension, retirement savings and group benefit plans, practices and programs maintained by the Company, as in effect from time to time (collectively, "Employee Benefit Plans"). The Company reserves the right to amend or cancel any Employee Benefit Plan at any time in its sole discretion, subject to the terms of such Employee Benefit Plan.

4.5 Paid Time-Off.

During each fiscal year (prorated for partial years) of the Employment Term, the Executive shall be entitled to 200 hours of paid time-off in accordance with the Company's paid time-off policies, as in effect from time to time.

4.6 Business Expenses.

The Executive shall be entitled to reimbursement for all reasonable and necessary out-of-pocket business, entertainment and travel expenses incurred by the Executive in connection with the performance of the Executive's duties hereunder in accordance with the Company's expense reimbursement policy, as in effect from time to time. The Company shall pay the Executive US$10,000 (such amount to be grossed up for all taxes), payable on the first payroll after the Effective Date, for out-of-pocket costs relating to the Executive's employment. 

4.7 Clawback Provisions.

Notwithstanding any provision in this Agreement to the contrary, all compensation paid to the Executive pursuant to this Agreement or any other agreement or arrangement with the Company which is subject to recovery under the Company's Clawback Policy (which may be amended from time to time) or any applicable law, government regulation or stock exchange listing requirement (the "Clawback Laws") will be subject to such deductions and clawback as may be required to be made pursuant to the Clawback Policy and Clawback Laws.

ARTICLE 5
TERMINATION OF EMPLOYMENT; CHANGE OF CONTROL

5.1 Notice.

The Executive's employment hereunder may be terminated by either the Company or the Executive at any time during the Employment Term and for any, or no, reason by providing written notice of the termination of the Executive's employment (the "Termination Notice"). Upon termination of the Executive's employment, the Executive shall be entitled to the compensation and benefits described in, and subject to, this Article 5 and shall have no further rights to any compensation or any other benefits hereunder from the Company or any of its affiliates.

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5.2 Termination for Cause or Without Good Reason.

(a) If the Executive's employment is terminated by the Company for Cause or by the Executive without Good Reason, the Executive shall be entitled to the following:

(i) any accrued but unpaid Base Salary and accrued but unused paid time-off which shall be paid on the pay date immediately following the Termination Date (as defined below) in accordance with the Company's customary payroll procedures;

(ii) reimbursement for unreimbursed business expenses properly incurred by the Executive, which shall be subject to and paid in accordance with the Company's expense reimbursement policy, as in effect from time to time;

(iii) any Special RSUs, Special PSUs and Matching RSUs that are vested as of the Termination Date but have not yet been settled shall be settled in accordance with the terms of the applicable Special Award Agreement, and any Special Options that are vested as of the Termination Date shall be exercisable thereafter only in accordance with the terms of the applicable Special Award Agreement; and

(iv) all unvested Special RSUs, unvested Special PSUs, unvested Matching RSUs and unvested Special Options shall be immediately forfeited and cancelled.

Paragraphs (i), (ii) and (iii) of this Section 5.2(a) are referred to herein collectively as the "Accrued Amounts".

(b) For purposes of this Agreement, "Cause" shall mean:

(i) the Executive's engagement in dishonesty, illegal conduct or gross misconduct, which, in each case, the Board has reasonably determined is or is likely to be materially injurious to the Company;

(ii) the Executive's embezzlement, misappropriation or fraud, whether or not related to the Executive's employment with the Company;

(iii) the Executive's conviction of or plea of guilty or nolo contendere to a crime that constitutes a felony (or state law equivalent) or a crime that constitutes a misdemeanor involving moral turpitude;

(iv) the Executive's willful violation of a material written policy of the Company where such violation, if reasonably subject to cure, is not cured within twenty (20) days of written notice by the Company of such breach;

(v) the Executive's willful unauthorized disclosure of Confidential Information (as defined below); or

(vi) the Executive's material breach of any material obligation under this Agreement (including but not limited to the obligations under Section 6.3) or any other written agreement between the Executive and the Company where such breach is not cured within twenty (20) days of written notice by the Company of such breach.

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Any determination of Cause by the Company will be made by a resolution approved by a majority of the members of the Board, provided that the Executive has been given an opportunity to appear (with legal counsel) before the full Board to discuss the specific circumstances alleged to constitute a Cause event.  For purposes hereof, an act, or a failure to act, shall not be deemed willful or intentional, unless it is done, or omitted to be done, by the Executive in bad faith or without a reasonable belief that the Executive's action or omission was in the best interest of the Company. Notwithstanding the foregoing, any action or inaction taken by the Executive based upon the Executive's reasonable reliance on advice of counsel to the Company or the direction of the Board shall not form the basis for Cause. For the avoidance of doubt, "Cause" does not include any failure to achieve any performance targets, whether relating to the Executive, the Company, or otherwise.

(c) For purposes of this Agreement, "Good Reason" shall mean the occurrence of any of the following, in each case during the Employment Term without the Executive's written consent:

(i) a material reduction in the Executive's Base Salary other than a general reduction in Base Salary that affects all similarly situated executives in substantially the same proportions;

(ii) a material reduction in the Executive's Target Bonus opportunity;

(iii) a material reduction in Executive's total direct compensation;

(iv) any material breach by the Company of any material provision of this Agreement, including, without limitation, the failure to make any payment or grant any equity-based award hereunder within the time frame(s) specified herein;

(v) the Company's failure to obtain an agreement in writing from any successor to the Company to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no succession had taken place, except where such assumption occurs by operation of law;

(vi) a material, adverse change in the Executive's title, authority, duties or responsibilities (other than temporarily while the Executive is physically or mentally incapacitated or as required by applicable law) taking into account the Company's size, status as a public company and capitalization as of the date of this Agreement;

(vii) a material adverse change in the reporting structure applicable to the Executive;

(viii) the requirement for the Executive to relocate his primary residence; or

(ix) the relocation of the Principal Office outside of the United States.

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The Executive cannot terminate his employment for Good Reason unless he has provided written notice to the Company of the existence of the circumstances providing grounds for termination for Good Reason within 30 days of the Executive's knowledge of the existence of such grounds and the Company has had at least 30 days from the date on which such notice is provided to cure such circumstances, and if not cured, the Executive terminates his employment within 60 days following the end of such cure period. If the Executive has not provided such written notice within 90 days of the Executive's knowledge of the initial existence of the applicable grounds, then the Executive will be deemed to have waived his right to terminate for Good Reason with respect to such grounds.

5.3 Termination Without Cause or for Good Reason.

If the Executive's employment hereunder is terminated by the Company without Cause or by the Executive for Good Reason during the Employment Term, the Executive shall be entitled to receive the Accrued Amounts and, conditional upon the Executive's compliance with Article 6 of this Agreement and his execution of a release of claims in favor of the Company, its affiliates and their respective officers and directors substantially in the form attached hereto as Appendix D (the "Release"), the Executive shall also be entitled to the following, with such payments to be made on a date determined by the Company but in any event within sixty (60) days following the Termination Date except as otherwise provided:

(a) a lump sum payment equal to two (2) times the sum of (i) the Executive's Base Salary and (ii) the Executive's Target Bonus amount (each, at the highest rate in effect during the 12 month period immediately preceding the Termination Date);

(b) the amount of Annual Bonus earned, but not yet paid, in the fiscal year prior to the fiscal year in which the Termination Date occurs;

(c) to the extent permitted by the federal COBRA law or, if applicable, state insurance laws (collectively, "COBRA"), if the Executive timely elects COBRA continuation coverage, then the Company shall continue to provide the Executive and the Executive's eligible dependents with coverage under its group health plans at the same levels and the same cost to Executive as would have applied if the Executive's employment had not been terminated based on the Executive's elections in effect on the date of termination during the period commencing on the Termination Date and ending upon the earlier to occur of (x) eighteen (18) months following the Termination Date and (y) the date that the Executive is no longer eligible for COBRA;

(d) all unvested Special RSUs and Matching RSUs, and only in the event the Executive terminates for Good Reason all the unvested Special Options, shall immediately vest on the Termination Date and be settled in accordance with the terms of the applicable Special Award Agreements; and

(e) any Special Options not vesting pursuant to Section 5.3(d) and any Special PSUs which have not vested as of the Termination Date shall be forfeited and cancelled.

The Company's obligations to make any payments under this Section 5.3 shall be conditioned on the Executive executing and delivering to the Company the Release within twenty-one (21) days following the date the Company delivers the Release to the Executive after the date the Termination Notice is received by the Executive and the Release becoming effective by virtue of the Executive not revoking the Release during the period the Executive is allowed by law to revoke.

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5.4 Death.

(a) The Executive's employment hereunder shall terminate automatically upon the Executive's death during the Employment Term.

(b) If the Executive's employment is terminated during the Employment Term on account of the Executive's death, the Executive's estate shall be entitled to the following, with such payments to be made on a date determined by the Company within 60 days following death except as otherwise provided below:

(i) the Accrued Amounts;

(ii) any amount of Annual Bonus earned, but not yet paid, in the fiscal year prior to the fiscal year in which the Termination Date occurs;

(iii) all unvested Special RSUs, Matching RSUs, and Special Options shall immediately vest on the Termination Date and be settled in accordance with the terms of the applicable Special Award Agreements or be exercisable thereafter only in accordance with the terms of the applicable Special Award Agreement;

(iv) any Special PSUs which have not vested as of the Termination Date shall be forfeited and cancelled; and

(v) each outstanding equity-based incentive award subject to time-based vesting criteria (other than the Special Awards) shall immediately become fully vested; provided that any delays in the settlement or payment of such awards that are required under Section 409A shall remain in effect.

5.5 Total Disability.

(a) The Company may terminate the Executive's employment on account of the Executive's Total Disability.

(b) If the Executive's employment is terminated during the Employment Term on account of the Executive's Total Disability, the Executive shall be entitled to the following, with such payments to be made on a date determined by the Company within 60 days following the termination due to the Executive's Total Disability except as otherwise provided below:

(i) the Accrued Amounts;

(ii) any amount of Annual Bonus earned, but not yet paid, in the fiscal year prior to the fiscal year in which the Termination Date occurs;

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(iii) all unvested Special RSUs, Matching RSUs, and Special Options shall immediately vest on the Termination Date and be settled in accordance with the terms of the applicable Special Award Agreements or be exercisable thereafter only in accordance with the terms of the applicable Special Award Agreement;

(iv) any Special PSUs which have not vested as of the Termination Date shall be forfeited and cancelled; and

(v) each outstanding equity-based incentive award subject to time-based vesting criteria (other than the Special Awards) shall immediately become fully vested; provided that any delays in the settlement or payment of such awards that are required under Section 409A shall remain in effect.

(c) For purposes of this Agreement, "Total Disability" means a mental or physical impairment which is expected to result in death or which has lasted or is expected to last for a continuous period of 12 months or more and which causes Executive to be unable, in the reasonable opinion of the Company, to perform his duties as an employee of the Company, and solely with regards to the Performance Share Unit Award Agreement only if Executive is considered "disabled" within the meaning of Treasury Regulations Section 1.409A-3(i)(4).

5.6 Change of Control.

(a) If the Executive's employment hereunder is terminated by the Executive for Good Reason or by the Company without Cause (other than on account of the Executive's death or Total Disability) during the Employment Term, in each case during the Change of Control Period, the Executive shall be entitled to receive the Accrued Amounts and, conditional upon the Executive's execution of a Release, shall also be entitled to the following, on a date determined by the Company (but in any event within sixty (60) days following the Termination Date except as otherwise provided below):

(i) to a lump sum payment equal to two (2) times the sum of (x) the Executive's Base Salary, and (y) the Executive's Target Bonus (each, at the highest rate in effect during the 12-month period immediately preceding the Termination Date);

(ii) any amount of Annual Bonus earned, but not yet paid, in the fiscal year prior to the fiscal year in which the Termination Date occurs;

(iii) to the extent permitted by COBRA, if the Executive timely elects COBRA continuation coverage, then the Company shall continue to provide the Executive and the Executive's eligible dependents with coverage under its group health plans at the same levels and the same cost to Executive as would have applied if the Executive's employment had not been terminated based on the Executive's elections in effect on the date of termination during the period commencing on the Termination Date and ending upon the earlier to occur of (x) eighteen (18) months following the Termination Date and (y) the date that Executive is no longer eligible for COBRA;

(iv) all unvested Special RSUs, Matching RSUs and Special Options shall immediately vest on the Terminate Date and be settled in accordance with the terms of the applicable Special Award Agreements or be exercisable thereafter only in accordance with the terms of the applicable Special Award Agreement;

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(v) all Special PSUs which have not vested as of the Termination Date shall vest based on the Company's actual performance through the date of the Change of Control in accordance with the award agreement, and multiplying the number of Special PSUs that would vest based on such performance by a fraction, the numerator of which is the number of days during the performance period Executive is employed by the Company and the denominator is the total number of days in the performance period and be settled in accordance with the terms of the applicable Special Award Agreement;

(vi) each outstanding equity-based incentive award subject to time-based vesting criteria (other than the Special Awards) shall immediately become fully vested; provided that any delays in the settlement or payment of such awards that are required under Section 409A shall remain in effect; and

(vii) each outstanding equity-based incentive award subject to performance-based vesting criteria (other than the Special Awards) shall vest based on the Company's actual performance through the date of the Change of Control in accordance with the award agreement (or such other period as the award agreement may provide), and multiplying the number of PSUs that would vest based on such performance by a fraction, the numerator of which is the number of days during the performance period Executive is employed by the Company and the denominator is the total number of days in the performance period.

The Company's obligations to make any payments under this Section 5.6(a) shall be conditioned on the Executive executing and delivering to the Company the Release within twenty-one (21) days following the date the Company delivers the Release to the Executive after the date the Termination Notice is received by the Executive and the Release becoming effective by virtue of the Executive not revoking the Release during the period the Executive is allowed by law to revoke.

(b) For purposes of this Agreement, "Change of Control" shall mean the occurrence of any of the following after the Effective Date:

(i) the acquisition of ownership, directly or indirectly, beneficially or of record, by any person or combination of persons acting jointly or in concert with each other, of the outstanding common shares of the Company representing more than 50% of the aggregate ordinary voting power represented by the issued and outstanding common shares;

(ii) the sale, lease, exchange or other disposition, in a single transaction or a series of related transactions, of assets, rights or properties of the Company and/or any of its subsidiaries representing all or substantially all of the assets, rights and properties of the Company and its subsidiaries on a consolidated basis to any other person or entity, other than a disposition to a wholly owned subsidiary of the Company in the course of a reorganization of the assets of the Company and its subsidiaries;

(iii) a resolution is adopted to wind-up, dissolve or liquidate the Company;

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(iv) at any time during a period of two consecutive years, individuals who at the beginning of such period constituted the Board of Directors of the Company ("Incumbent Directors") shall cease for any reason to constitute at least a majority thereof; provided, however, that the term "Incumbent Director" shall also include each new director elected during such two-year period whose nomination or election was approved by two-thirds of the Incumbent Directors then in office; or

(v) any consolidation, merger, amalgamation, or plan of exchange involving the Company as a result of which the holders of outstanding common shares of the Company immediately prior to the transaction do not continue to hold at least 50% or more of the outstanding voting securities of the surviving company or a parent of the surviving company immediately after the transaction, disregarding any voting securities issued to or retained by such holders in respect of securities of any other party to the transaction; or

(vi) the Board adopts a resolution to the effect that a Change of Control as defined herein has occurred or is imminent.

Notwithstanding the foregoing, and solely with regards to the Performance Share Unit Award Agreement, a Change of Control shall only occur if the Change of Control constitutes a change in the ownership or effective control of the Company, or a change in the ownership of a substantial portion of the assets of the Company, within the meaning of Treasury Regulations Section 1.409A-3(i)(5). 

(c) For purposes of this Agreement, "Change of Control Period" shall mean any of the following:

(i) within 12 months following a Change of Control; or

(ii) within two (2) months prior to a Change of Control if (a) the Executive is terminated by the Company without Cause; and (b) it is reasonably demonstrated by the Executive that such termination of employment arose in connection with, or anticipation of, a Change of Control.

5.7 Termination Date.

The Executive's Termination Date shall be:

(a) If the Executive's employment hereunder terminates on account of the Executive's death, the date of the Executive's death;

(b) If the Executive's employment hereunder is terminated on account of the Executive's Total Disability, the date that it is determined that the Executive has a Total Disability;

(c) If the Company terminates the Executive's employment hereunder for Cause, the date the Termination Notice is delivered to the Executive;

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(d) If the Company terminates the Executive's employment hereunder without Cause, the date which is the later of the date specified in the Termination Notice or the date the Termination Notice is received by the Executive;

(e) If the Executive terminates his employment hereunder with or without Good Reason, the date specified in the Termination Notice, which shall be not less than 60 days following the date on which the Termination Notice is delivered; and

(f) Any other date mutually agreed upon by the Company and the Executive.

5.8 Other Equity Compensation and Employee Benefits.

Upon the termination of the Executive's employment hereunder for any reason, (i) the treatment of all RSUs, Options, PSUs or other form of equity compensation award other than Special RSUs, Special PSUs, Matching RSUs and Special Options granted to the Executive shall be governed by the terms of any applicable plan or any successor or replacement plan and the applicable award agreements, and (ii) subject to any requirements of applicable law regarding continuation of employee benefits following termination of employment, the treatment of all benefits provided to the Executive pursuant to the Employee Benefit Plans shall be governed by the terms of the respective plans.

5.9 Resignation of All Other Positions.

Upon termination of the Executive's employment hereunder for any reason, the Executive agrees to resign, effective on the Termination Date, from all positions that the Executive holds as an officer or member of the board of directors (or a committee thereof) of the Company or any of its affiliates.

5.10 Section 280G.

(a) If any of the payments or benefits received or to be received by the Executive including, without limitation, any payment or benefits received in connection with a Change of Control or the Executive's termination of employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise (all such payments collectively referred to herein as the "280G Payments") constitute "parachute payments" within the meaning of Section 280G of the Internal Revenue Code (the "Code") and would, but for this Section 5.10, be subject to the excise tax imposed under Section 4999 of the Code (the "Excise Tax"), then prior to making the 280G Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) to the Executive of the 280G Payments after payment of the Excise Tax to (ii) the Net Benefit to the Executive if the 280G Payments are limited to the extent necessary to avoid being subject to the Excise Tax. If, and only if, the amount calculated under (i) above is less than the amount under (ii) above, the 280G Payments will be reduced to the minimum extent necessary so that no portion of the 280G Payments is subject to the Excise Tax. "Net Benefit" shall mean the present value of the 280G Payments net of all federal, state, local, foreign income, payroll, and excise taxes. If multiple amounts are subject to reduction, the amounts shall be reduced (but not below zero) in a manner determined by the Company that is consistent with the requirements of Section 409A of the Code ("Section 409A") and otherwise so as to maximize the after-tax benefit to the Executive.

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(b) All calculations and determinations under this Section 5.10 shall be made by an accounting firm or tax counsel appointed by the Company (the "Tax Counsel") whose determinations shall be conclusive and binding on the Executive for all purposes. For purposes of making the calculations and determinations required by this Section 5.10, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Company and the Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under this Section 5.10. The Company shall bear all costs the Tax Counsel may reasonably incur in connection with its services.

ARTICLE 6
CONFIDENTIALITY
AND NON-SOLICITATION

6.1 Confidential Information Defined.

(a) For purposes of this Agreement, "Confidential Information" includes, but is not limited to, all information not generally known to the public, in spoken, printed, electronic or any other form or medium, relating directly or indirectly to: business processes, practices, methods, policies, plans, publications, documents, research, operations, services, strategies, techniques, agreements, contracts, terms of agreements, transactions, potential transactions, negotiations, pending negotiations, know-how, trade secrets, computer programs, computer software, applications, operating systems, work-in-process, databases, manuals, records, financial information, results, developments, reports, internal controls and security procedures. The Executive understands that the above list is not exhaustive, and that Confidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used. Confidential Information shall not include information that is generally available to and known by the public at the time of disclosure to the Executive; provided that, such disclosure is through no direct or indirect fault of the Executive or person(s) acting on the Executive's behalf.

6.2 Disclosure and Use Restrictions of Confidential Information.

The Executive agrees and covenants: (i) to treat all Confidential Information as strictly confidential; (ii) not to directly or indirectly disclose, publish, communicate or make available Confidential Information, or allow it to be disclosed, published, communicated or made available, in whole or part, to any entity or person whatsoever (including other employees of the Company) not having a need to know and authority to know and use the Confidential Information in connection with the business of the Company and, in any event, not to anyone outside of the direct employ of the Company except as required in the performance of the Executive's authorized employment duties to the Company. Nothing stated herein shall preclude the disclosure of Confidential Information by the Executive in response to a valid order of a court, governmental agency or other governmental body of the United States or any political subdivision thereof or as otherwise required by law, provided that prior to any such disclosure the Executive shall notify the Company to enable the Company to seek a protective order.

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The Executive understands and acknowledges that his obligations under this Agreement with regard to any Confidential Information shall commence immediately upon the Executive first having access to such Confidential Information (whether before or after the Effective Date) and shall continue during and after his employment by the Company until such time as such Confidential Information has become public knowledge other than as a result of the Executive's breach of this Agreement.

6.3 Non-Solicitation of Customers and Employees.

(a) The Executive agrees and covenants not to directly or indirectly solicit or attempt to solicit any customer or prospective customer of the Company during the 18-month period immediately following the Termination Date.

(b) The Executive agrees and covenants not to directly or indirectly solicit, hire, recruit, attempt to hire or recruit, or induce the termination of employment of any employee of the Company during the 18-month period immediately following the Termination Date.

This prohibition shall not apply to (i) general solicitations or other non-targeted recruiting efforts, (ii) the Executive serving as a reference, upon request, for an employee of the Company, or (iii) actions taken by any person or entity with which the Executive is associated if the Executive is not personally involved in the matter and has not identified such Company-related person or entity for soliciting or hiring.

6.4 Acknowledgement.

(a) The Executive acknowledges and agrees that the services to be rendered by him to the Company are of a special and unique character; that the Executive will obtain knowledge and skill relevant to the Company's industry, methods of doing business and marketing strategies by virtue of the Executive's employment; and that the restrictive covenants and other terms and conditions of this Agreement are reasonable and reasonably necessary to protect the legitimate business interest of the Company.

(b) The Executive further acknowledges that the amount of his compensation reflects, in part, his obligations and the Company's rights under Article 6; that he has no expectation of any additional compensation, royalties or other payment of any kind not otherwise referenced herein in connection herewith; that he will not be subject to undue hardship by reason of his full compliance with the terms and conditions of Article 6 or the Company's enforcement thereof.

6.5 Remedies.

In the event of a breach or threatened breach by the Executive of Article 6, the Executive hereby consents and agrees that the Company shall be entitled to seek, in addition to other available remedies, a temporary or permanent injunction or other equitable relief against such breach or threatened breach from any court of competent jurisdiction, without the necessity of showing any actual damages or that monetary damages would not afford an adequate remedy. The aforementioned equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages or other available forms of relief.

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ARTICLE 7
GENERAL 

7.1 Governing Law; Jurisdiction and Venue.

This Agreement, for all purposes, 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.

7.2 Stock Ownership Requirements.

The Executive shall be expected to maintain ownership of Company common stock having a value equal to five times his Base Salary in accordance with guidelines established by the Compensation Committee from time to time. The Executive will be required to meet this ownership requirement within five years after the Effective Date.

7.3 Section 409A.

(a) This Agreement and all payments under this Agreement are intended to comply with Section 409A or an exemption thereunder and shall be construed and administered in accordance with Section 409A. Notwithstanding any other section of this Agreement, any payment under this Agreement may only be made upon an event and in a manner that complies with Section 409A or an applicable exemption. All payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, each installment payment under this Agreement shall be treated as a separate payment. References in this Agreement to "payments under this Agreement" shall include all payments pursuant to the Special RSUs, Matching RSUs and the Special Options. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A, and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest, or other expenses that may be incurred by the Executive on account of non-compliance with Section 409A.

(b) Any payment under this Agreement that constitutes "nonqualified deferred compensation" within the meaning of Section 409A and is payable upon a termination of employment of the Executive shall only be made upon the Executive's "separation from service" with the Company within the meaning of Section 409A, and any reference to Termination Date shall similarly mean the date of such "separation from service" with the Company.

(c) If any payment or benefit provided to the Executive in connection with his termination of employment is determined to constitute "nonqualified deferred compensation" within the meaning of Section 409A and the Executive is determined to be a "specified employee" as defined in Section 409A(a)(2)(b)(i), then such payment or benefit shall not be paid until the first payroll date to occur following the six-month anniversary of the Termination Date or, if earlier, on the Executive's death (the "Specified Employee Payment Date"). The aggregate of any payments that would otherwise have been paid before the Specified Employee Payment Date and interest on such amounts calculated based on the applicable federal rate published by the Internal Revenue Service for the month in which the Executive's separation from service occurs shall be paid to the Executive in a lump sum on the Specified Employee Payment Date and thereafter, any remaining payments shall be paid without delay in accordance with their original schedule.

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(d) To the extent required by Section 409A, each reimbursement or in-kind benefit provided under this Agreement shall be provided in accordance with the following:

(i) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during each calendar year cannot affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year;

(ii) any reimbursement of an eligible expense shall be paid to the Executive on or before the last day of the calendar year following the calendar year in which the expense was incurred; and

(iii) any right to reimbursements or in-kind benefits under this Agreement shall not be subject to liquidation or exchange for another benefit.

(e) If any payment under this Agreement constitutes "nonqualified deferred compensation" within the meaning of Section 409A and is contingent upon the execution and delivery of a Release and if the Termination Date with respect to which such payment is being made occurs during the last 40 days of the calendar year, the payment shall be made no earlier than the first business day of the succeeding calendar year.

7.4 Entire Agreement.

Unless specifically provided herein, this Agreement, along with the agreements appended hereto, contain all of the understandings and representations between the Executive and the Company pertaining to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. The parties mutually agree that the Agreement can be specifically enforced in court and can be cited as evidence in legal proceedings alleging breach of the Agreement.

7.5 Modification and Waiver.

No provision of this Agreement may be amended or modified unless such amendment or modification is agreed to in writing and signed by the Executive and by the Chair of the Board. No waiver by either of the parties of any breach by the other party hereto of any condition or provision of this Agreement to be performed by the other party hereto shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by either of the parties in exercising any right, power or privilege hereunder operate as a waiver thereof to preclude any other or further exercise thereof or the exercise of any other such right, power or privilege.

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7.6 Severability.

If any portion of this Agreement shall be held by a court as unenforceable and thus stricken, such holding shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the parties.

7.7 Counterparts.

This Agreement may be executed in separate counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.

7.8 Notice.

Notices and all other communications provided for in this Agreement shall be in writing and shall be delivered personally or sent by registered or certified mail, return receipt requested, or by overnight carrier to the parties at the addresses set forth below (or such other addresses as specified by the parties by like notice):

If to the Company:

SunOpta Inc.
7078 Shady Oak Road

Eden Prairie, MN 55344
Phone: (952) 820-2518
Attention: Chair of the Board
With a copy to: CAO, Legal Department

If to the Executive:

The last known address of the Executive in the Company's records.

With a copy (which shall not constitute notice) to:

McDonald Hopkins LLC

300 N. LaSalle Street, Suite 1400

Chicago, IL 60654

Attention: Benjamin Panter and David Strosnider

Email: bpanter@mcdonaldhopkins.com and dstrosnider@mcdonaldhopkins.com

7.9 Representations of the Executive.

The Executive represents and warrants to the Company that:

(a) The Executive's acceptance of employment with the Company and the performance of his duties hereunder will not conflict with or result in a violation of, a breach of, or a default under any contract, agreement or understanding to which he is a party or is otherwise bound.

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(b) The Executive's acceptance of employment with the Company and the performance of his duties hereunder will not violate any non-competition, non-solicitation or other similar covenant or agreement with a prior employer.

7.10 Withholding.

The Company shall have the right to withhold from any amount payable hereunder any taxes, contributions, premiums or other amounts in order for the Company to satisfy any withholding obligation it may have under any applicable law or regulation.

7.11 Survival.

Upon the expiration or other termination of this Agreement, the respective rights and obligations of the parties hereto shall survive such expiration or other termination to the extent necessary to carry out the intentions of the parties under this Agreement.

7.12 Notice of Immunity Under the Economic Espionage Act of 1996, as amended by the Defend Trade Secrets Act of 2016.

Notwithstanding any other provision of this Agreement:

(a) The Executive will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that:

(i) is made:

(A) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and

(B)        solely for the purpose of reporting or investigating a suspected violation of law; or

(ii) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.

(b) If the Executive files a lawsuit for retaliation by the Company affiliate of the Company for reporting a suspected violation of law, Executive may disclose the Company's or its affiliate's trade secrets to Executive's attorney and use the trade secret information in the court proceeding if Executive:

(i) files any document containing the trade secret under seal; and

(ii) does not disclose the trade secret, except pursuant to court order.

7.13 Acknowledgment of Full Understanding.

THE EXECUTIVE ACKNOWLEDGES AND AGREES THAT HE HAS FULLY READ, UNDERSTANDS AND VOLUNTARILY ENTERS INTO THIS AGREEMENT. THE EXECUTIVE ACKNOWLEDGES AND AGREES THAT HE HAS HAD AN OPPORTUNITY TO ASK QUESTIONS AND CONSULT WITH INDEPENDENT COUNSEL BEFORE SIGNING THIS AGREEMENT.

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[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

SUNOPTA INC.

	By:	/s/ Dean Hollis
		Name: Dean Hollis Title: Chair of the Board
BRIAN W. KOCHER Signature: /s/ Brian Kocher______________________

 

 [Signature Page to Executive Employment Agreement]

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APPENDIX "A"

RESTRICTED STOCK UNIT AWARD AGREEMENT

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APPENDIX "B"

STOCK OPTION AWARD AGREEMENT

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APPENDIX "C"

PERFORMANCE SHARE UNIT AWARD AGREEMENT

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APPENDIX "D"

FORM OF RELEASE OF CLAIMS

Release

FROM: Brian W. Kocher

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, Brian W. Kocher, dated ____________, 20__ (the "Letter Agreement"), which terms are deemed to be and are accepted by me in full and final satisfaction of the Executive Employment Agreement between SunOpta and me, Brian W. Kocher, made on December 1, 2023 (the receipt and sufficiency of which consideration are hereby acknowledged) and except for SunOpta's obligations referred to in the Letter Agreement, I, Brian W. Kocher, personally and for my heirs, executors, administrators, successors and assigns, fully, finally and forever releases and discharges SunOpta and its affiliates, as well as their respective successors, assigns, officers, owners, directors, 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 voluntarily and with full knowledge 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 or by mailing (postmarked within fifteen days 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.

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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) any claims under Executive's director and officer indemnification agreement or pursuant to the Company's or any Subsidiary's charter documents; (iv) rights to group medical or group dental insurance coverage pursuant to Section 4980B of the Internal Revenue Code of 1986, as amended ("COBRA"), (v) with respect to any rights under the equity award agreements with the Company, as the same may be modified by the terms of the Employment Agreement, (vi) that may arise after I sign this Release, and (vi) 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 or local agency charged with the enforcement of any laws, including providing documents or other information, or (b) prevents me from exercising my rights under 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 ___ day of _____________, 20__.

 

__________________________________________

BRIAN W. KOCHER

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Exhibit 10.3

 

RESTRICTED STOCK UNIT AWARD AGREEMENT

This Restricted Stock Unit Award Agreement (the "Agreement") is entered into as of January 2, 2024 (the "Award Date") by and between SunOpta Inc., a Canadian corporation (the "Company"), and Brian W. Kocher (the "Recipient").

IN CONSIDERATION of the mutual covenants and agreements set forth in this Agreement, the parties agree to the following:

1. Award and Terms of Restricted Stock Units. The Company awards to the Recipient ______ restricted stock units (the "Award"), subject to the restrictions, terms and conditions set forth in this Agreement and the Employment Agreement.  This Award is not, and shall not be deemed to be, granted under or subject to the terms of the Company's Amended 2013 Stock Incentive Plan or any other plan. This Award is granted pursuant to the terms of the Executive Employment Agreement dated December 1, 2023 between the Company and the Recipient (the "Employment Agreement") and in the event of any inconsistency between this Agreement and the Employment Agreement as to timing of vesting or any other provision, the terms of the Employment Agreement shall control and apply.

(a) Rights under Restricted Stock Units. A restricted stock unit (an "RSU") represents the unfunded, unsecured right to require the Company to deliver to the Recipient one common share of the Company ("Common Shares") for each RSU.

(b) Vesting Dates.  The RSUs awarded under this Agreement shall initially be 100% unvested and subject to forfeiture.  One-third of the RSUs shall vest on each of the first three (3) anniversaries of the Award Date (each, a "Vesting Date") if the Recipient is an employee of the Company on that Vesting Date and has been employed by the Company continuously from the Award Date to that Vesting Date.

(c) Termination of Employment. Except as provided in (i), (ii) and (iii) below and the Employment Agreement, if Recipient's employment by the Company is terminated at any time prior to the final Vesting Date, the Recipient shall not be entitled to receive any shares underlying any RSUs that are not vested as of the date of termination.

(i) Total Disability.  If the Recipient's employment with the Company is terminated at any time prior to the final Vesting Date because of Total Disability (as defined in the Employment Agreement), all unvested RSUs shall immediately vest upon the determination of Total Disability and be settled in accordance with the terms of this Agreement. 

(ii) Death. If the Recipient's employment with the Company is terminated at any time prior to the final Vesting Date because of death, all unvested RSUs shall immediately vest as of the date of death and be settled in accordance with the terms of this Agreement. 

(iii) Termination without Cause or for Good Reason.  If the Recipient's employment by the Company is terminated by the Company without Cause or by the Recipient for Good Reason at any time prior to the final Vesting Date, the RSUs shall be treated in accordance with Section 5.3 of the Employment Agreement.  If a Release is not executed by the Recipient in accordance with the Employment Agreement or any other applicable provision of the Employment Agreement is not complied with by the Recipient prior to the effective date of the Release, the Recipient shall not be entitled to receive any shares underlying any RSUs that are not vested as of the date of employment termination.  For the purposes of this Agreement, "Cause," "Good Reason" and "Release" shall have the meanings set forth in Employment Agreement. 

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(d) Restrictions on Transfer.  The Recipient may not sell, transfer, assign, pledge or otherwise encumber or dispose of the RSUs subject to this Agreement. The Recipient may designate beneficiaries to receive any Common Shares to which the Recipient is entitled under this Agreement if the Recipient dies before delivery of such Common Shares by so indicating on a form supplied by the Company.  If the Recipient fails to designate a beneficiary, such Common Shares shall be delivered as directed by the personal representative of the Recipient's estate.

(e) No Voting Rights or Dividends.  The Recipient shall have no rights as a shareholder with respect to the RSUs or the Common Shares underlying the RSUs until the underlying Common Shares are issued to the Recipient. The Recipient will not be entitled to receive cash payments representing any cash dividends paid with respect to the Common Stock underlying the RSUs.

(f) Delivery Date for the Shares Underlying the RSUs.  Following each Vesting Date of the RSUs, the Company shall issue shares underlying the vested RSUs to the Recipient on a date determined by the Company within 60 days of such vesting; provided, however, that if the Recipient is obligated to deliver a Release in accordance with Section 1(c)(iii) and if the Recipient's Termination Date (as defined and determined pursuant to the Employment Agreement) occurs during the last 40 days of the calendar year, the payment shall in no event be made earlier than the first business day of the succeeding calendar year. 

(g) Taxes and Tax Withholding.

(i) The Award is subject to applicable tax withholding.  Prior to any relevant taxable or tax withholding event, as applicable, the Recipient agrees to make adequate arrangements satisfactory to the Company to satisfy all federal, state, provincial and other tax withholding obligations. In this regard, the Recipient authorizes the Company and its agents, at their discretion, to satisfy applicable withholding obligations by one or a combination of the following:

(1) withholding from the Recipient's other cash compensation paid by the Company; or

(2) withholding from proceeds of the sale of Common Shares acquired upon vesting/settlement of the RSUs either through a voluntary sale or through a mandatory sale arranged by the Company on the Recipient's behalf pursuant to this authorization; or

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(3) withholding in Common Shares to be issued upon vesting/settlement of the RSUs.

(ii) If the withholding obligation is satisfied by withholding Common Shares, for tax purposes the Recipient will be deemed to have been issued the full number of Common Shares subject to the vested RSUs, notwithstanding that a number of the Common Shares are held back solely for the purpose of satisfying the withholding.

(iii) The Recipient agrees to pay to the Company any amount the Company may be required to withhold as a result of this award that cannot be satisfied by the means previously described.  The Company may refuse to issue or deliver the shares or the proceeds of the sale of shares if the Recipient fails to comply with these obligations.

(iv) The Recipient acknowledges and agrees that no election under Section 83(b) of the Internal Revenue Code of the United States can or will be made with respect to the RSUs.

(h) Stock Splits, Stock Dividends.  If the outstanding Common Shares of the Company are hereafter increased or decreased or changed into or exchanged for a different number or kind of shares or other securities of the Company by reason of any stock split, combination of shares, dividend payable in shares, recapitalization or reclassification, appropriate adjustment shall be made by the Company in the number and kind of shares subject to the RSUs so that the Recipient's proportionate interest before and after the occurrence of the event is maintained.  Securities issued in respect of or exchanged for shares issued hereunder that are subject to restrictions (including vesting and forfeiture provisions) shall be subject to similar restrictions unless otherwise determined by the Board of Directors in its discretion. Notwithstanding the foregoing, the Company shall have no obligation to effect any adjustment that would or might result in the issuance of fractional shares, and any fractional shares resulting from any adjustment may be disregarded or provided for in any manner determined by the Company. Any such adjustments made by the Company shall be conclusive. For the avoidance of doubt, this provision is intended to put the Recipient in the same position with respect to each RSU as if Recipient owned a share of common stock immediately prior to such event.

(i) Mergers, Etc.  If, while any unvested RSUs are outstanding, there shall occur a merger, consolidation, amalgamation or plan of exchange, in each case involving the Company pursuant to which outstanding Common Shares are converted into cash or other stock, securities or property (each, a "Transaction"), the Board of Directors, may, in its sole discretion, provide that the unvested RSUs shall be treated in accordance with any of the following alternatives:

(i) The RSUs shall be converted into restricted stock units to acquire stock of the surviving or acquiring corporation in the Transaction (with the vesting schedule applicable to the RSUs continuing with respect to the replacement award, unless otherwise accelerated as determined by the Board of Directors in its sole discretion), with the amount and type of shares subject thereto to be conclusively determined by the Board of Directors, taking into account the relative values of the companies involved in the Transaction and the exchange rate, if any, used in determining shares of the surviving corporation to be held by holders of shares following the Transaction, and disregarding fractional shares;

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(ii) The RSUs shall be cancelled effective immediately prior to the consummation of the Transaction, and, in full consideration of the cancellation, the Company or the surviving or acquiring company shall pay to the Recipient at the time the RSUs would otherwise have vested (unless otherwise accelerated by the terms of the Employment Agreement or as determined by the Board of Directors in its sole discretion), with payment subject to continued employment of the Recipient by the Company or any acquiring or surviving company through such vesting date, an amount in cash, for each unvested RSU, equal to the value, as determined by the Board of Directors, of the Common Shares subject to the unvested RSUs, taking into account the relative values of the companies involved in the Transaction and the exchange rate, if any, used in determining shares of the surviving corporation to be held by holders of Common Shares following the Transaction or other consideration paid in the transaction to holders of Common Shares; or

(iii) The RSUs shall become vested in full and all unissued shares subject to the RSUs shall be issued immediately prior to the consummation of the Transaction.

In the event the Board of Directors opts that the remaining RSUs shall be treated in accordance with (i) above, then the surviving or acquiring corporation in the Transaction must agree to all relevant provisions of the Employment Agreement pertaining to the RSUs.

(j) Clawback. This award and any stock issued pursuant to this award are subject to recovery under the Company's clawback policy or any law, government regulation or stock exchange listing requirement and will be subject to such deductions and clawback made pursuant to such policy, law, government regulation, or stock exchange listing requirement, all as determined by the Board of Directors or the Compensation Committee.  The Company's current clawback policy is subject to revision by the Board or Compensation Committee at any time and from time to time.

2. Miscellaneous.

(a) Entire Agreement; Amendment. This Agreement and the Employment Agreement constitute the entire agreement of the parties with regard to the subjects hereof and may be amended only by written agreement between the Company and Recipient.

(b) Electronic Delivery.  The Recipient consents to the electronic delivery of any prospectus and any other documents relating to this Award in lieu of mailing or other form of delivery.

(c) Rights and Benefits. The rights and benefits of this Agreement shall inure to the benefit of and be enforceable by the Company's successors and assigns and, subject to the restrictions on transfer of this Agreement, be binding upon the Recipient's heirs, executors, administrators, successors and assigns.

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(d) Further Action. The parties agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement.

(e)  Governing Law; Jurisdiction and Venue. This Agreement will be interpreted under the laws of the state of Minnesota, exclusive of choice of law rules.  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.

(f) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original.

SUNOPTA INC.			RECIPIENT
By:
Name:			Brian W. Kocher
Title:

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Exhibit 10.4

STOCK OPTION AWARD AGREEMENT

This Stock Option Award Agreement (this "Agreement") is entered into as of January 2, 2024 (the "Award Date") by and between SunOpta Inc., a Canadian corporation (the "Company"), and Brian W. Kocher (the "Optionee").

The Company and the Optionee agree as follows:

1. Grant.  The Company hereby grants to the Optionee an option to purchase _____ common shares of the Company on the terms and conditions as set forth herein (the "Options").  The Options will not be treated as Incentive Stock Options as defined in Section 422 of the Internal Revenue Code of 1986, as amended, and are therefore Non-Statutory Stock Options.  The Options are not, and shall not be deemed to be, granted under or subject to the Company's Amended 2013 Stock Incentive Plan or any other plan. The Options are granted pursuant to the terms of the Executive Employment Agreement dated December 1, 2023 between the Company and the Optionee (the "Employment Agreement") and in the event of any inconsistency between this Agreement and the Employment Agreement as to timing of vesting or any other provision, the terms of the Employment Agreement shall control and apply.

2. Exercise Price.  The exercise price of the Option is $____ per share (the "Exercise Price").

3. Vesting.  The Options will vest one-third on each anniversary of Optionee's first day of employment, subject to the Optionee's continued employment through each vesting date, except as otherwise provided in Section 6 or the Employment Agreement.

4. Time of Exercise of Option.  Except as provided in Section 6, the Option may not be exercised prior to the vesting date set forth in Section 2.  Following such date and until it expires or is terminated as provided in Sections 6 or 11, this Option may be exercised from time to time to purchase whole shares. 

5. Expiration Date.  The Options shall expire on January 2, 2034 unless earlier terminated pursuant to the provisions hereof (the "Expiration Date"). 

6. Termination of Employment.

6.1 General Rule.  Except as provided in this Section 6 or the Employment Agreement, the Options may not be exercised unless at the time of exercise the Optionee is employed by the Company and shall have been so employed continuously from the Award Date through the end of the vesting period.  For purposes of this Agreement, the Optionee is considered to be employed by the Company if the Optionee is employed by the Company or any parent or subsidiary of the Company (an "Employer").

6.2 Termination Generally.  If the Optionee's employment by the Company terminates for any reason other than as provided in Sections 6.3 or 6.4 below, the Options may be exercised at any time before the Expiration Date or the expiration of 90 days after the date of termination, whichever is the shorter period, but only if and to the extent the Optionee was entitled to exercise the Option at the date of termination, and all unvested Options shall be forfeited and canceled.

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6.3 Total Disability.  If the Optionee's employment with the Company is terminated at any time because of Total Disability (as defined in the Employment Agreement), any unvested Options shall immediately vest as of the date of termination and the Options may be exercised at any time before the Expiration Date or the expiration of 12 months after the date of termination, whichever is the shorter period. 

6.4 Death.  If the Optionee's employment with the Company is terminated at any time because of death, any unvested Options shall immediately vest as of the date of termination and the Options may be exercised at any time before the Expiration Date or the expiration of 12 months after the date of termination, whichever is the shorter period, and only by the Optionee's personal representative or the person or persons to whom the Optionee's rights under the Options shall pass by the Optionee's will or by the laws of descent and distribution of the state or country of domicile at the time of death.

6.5 Failure to Exercise Options.  To the extent that following termination of employment, the Options are not exercised within the applicable periods described above (or the Employment Agreement, if applicable), all further rights to purchase shares pursuant to the Options shall cease and terminate.

7. Leave of Absence.  Absence on leave approved by the Employer or on account of illness or disability shall not be deemed a termination or interruption of employment.  Vesting of the Options shall continue during a medical, family or military leave of absence, whether paid or unpaid, and vesting of the Options shall be suspended during any other unpaid leave of absence.

8. Method of Exercise of Option; Tax Withholding.  The Options may be exercised by notice from the Optionee to the Company through the Company's third-party administrator, which is currently Solium Shareworks, of the Optionee's binding commitment to purchase shares, specifying the number of shares the Optionee desires to purchase under the Options, which may not be more than 30 days after delivery of the notice, and, if required to comply with the Securities Act of 1933, containing a representation that it is the Optionee's intention to acquire the shares for investment and not with a view to distribution. On or before the date specified for completion of the purchase, the Optionee must pay the Company the full purchase price of those shares in cash or by certified check, or in whole or in part in common shares of the Company valued at fair market value. The fair market value of common shares provided in payment of the purchase price shall be the closing price of the common shares last reported on Nasdaq before the time payment in common shares are made or, if earlier, committed to be made, if the Common Stock is publicly traded, or another value of the common shares as specified by the Company.  No shares shall be issued until full payment for the shares has been made, including all amounts owed for tax withholding.  The Optionee shall, immediately upon notification of the amount due, if any, pay to the Company in cash or by certified check amounts necessary to satisfy any applicable federal, state and local tax withholding requirements.  If additional withholding is or becomes required beyond any amount deposited before delivery of the electronic transfer of the shares, the Optionee shall pay such amount to the Company, in cash or by certified check, on demand.  If the Optionee fails to pay the amount demanded, the Company or the Employer may withhold that amount from other amounts payable to the Optionee, including salary, subject to applicable law. 

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9. Nontransferability.  Except as provided in this Section 9 the Options are nonassignable and nontransferable by the Optionee, either voluntarily or by operation of law, and during the Optionee's lifetime, the Options are exercisable only by the Optionee.  The Options may be transferred by will or by the laws of descent and distribution of the state or country of the Optionee's domicile at the time of death.

10. Stock Splits, Stock Dividends.  If the outstanding common shares of the Company are hereafter increased or decreased or changed into or exchanged for a different number or kind of shares or other securities of the Company by reason of any stock split, combination of shares, dividend payable in shares, recapitalization or reclassification, appropriate adjustment shall be made by the Company in (i) the number and kind of shares subject to the Options, or the unexercised portion thereof, and (ii) the Exercise Price per share, so that the Optionee's proportionate interest before and after the occurrence of the event is maintained.  Notwithstanding the foregoing, the Company shall have no obligation to effect any adjustment that would or might result in the issuance of fractional shares, and any fractional shares resulting from any adjustment may be disregarded or provided for in any manner determined by the Company.  Any such adjustments made by the Company shall be conclusive. For the avoidance of doubt, this provision is intended to put the Optionee in the same position with respect to each Option as immediately prior to such event.

11. Mergers, Etc.  If, while any Options are outstanding, there shall occur a merger, consolidation, amalgamation, plan of exchange or other transaction, in each case involving the Company pursuant to which outstanding shares are converted into cash or other stock, securities or property (each, a "Transaction"), the Board of Directors, may, in its sole discretion, provide that the remaining outstanding Options shall be treated in accordance with any of the following alternatives: 

(i) The remaining Options shall be converted into options to purchase stock of the surviving or acquiring corporation in the Transaction, which Options may not be exercised, in whole or in part, before the completion of the vesting period (unless otherwise accelerated as determined by the Board of Directors in its sole discretion) and shall be subject to continued employment of the Optionee by the Company or any acquiring or surviving company through such vesting date, for a total purchase price equal to the total price applicable to the unexercised portion of the Options, and with the amount and type of shares subject thereto and exercise price per share thereof to be conclusively determined by the Board of Directors, taking into account the relative values of the companies involved in the Transaction and the exchange rate, if any, used in determining shares of the surviving corporation to be held by holders of common shares of the Company following the Transaction in accordance with Treas. Reg. § 1.409A-1(b)(5)(v)(D), and disregarding fractional shares;

(ii) The remaining Options shall be cancelled effective immediately prior to the consummation of the Transaction, and, in full consideration of the cancellation, the Company or any acquiring or surviving company shall pay to the Optionee upon the vesting date (unless otherwise accelerated by the terms of the Employment Agreement or as determined by the Board of Directors in its sole discretion), subject to continued employment of the Optionee by the Company or any acquiring or surviving company through such date, an amount in cash, for each share subject to the Options, equal to the excess of (A) the value, as determined by the Board of Directors, of the property (including cash and securities) received by the holder of a common share of the Company as a result of the transaction over (B) the Exercise Price; or

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(iii) The remaining Options shall become exercisable for 100 percent of the shares subject to the Options effective as of the consummation of the Transaction, and the Board of Directors shall approve some arrangement by which the Optionee shall have a reasonable opportunity to exercise all such Options effective as of the consummation of the Transaction or otherwise realize the value of the Options, as determined by the Board of Directors.  Any Options that are not exercised in accordance with procedures approved by the Board of Directors shall terminate.

In the event the Board of Directors opts that the remaining outstanding Options shall be treated in accordance with (i) above, then the surviving or acquiring corporation in the Transaction must agree to all relevant provisions of the Employment Agreement pertaining to the Options.

12. Conditions on Obligations.  The Company shall not be obligated to issue common shares upon exercise of the Options if the Company is advised by its legal counsel that such issuance would violate applicable state or federal laws, including securities laws.  The Company will use its reasonable best efforts to take steps required by state or federal law or applicable regulations in connection with issuance of shares upon exercise of the Options.

13. No Right to Employment.  Nothing in this Agreement shall (i) confer upon the Optionee any right to be continued in the employment of an Employer or interfere in any way with the Employer's right to terminate the Optionee's employment at will at any time, for any reason, with or without cause, or to decrease the Optionee's compensation or benefits, or (ii) confer upon the Optionee any right to be retained or employed by the Employer or to the continuation, extension, renewal or modification of any compensation, contract or arrangement with or by the Employer.

14. Clawback.  This award and any stock issued pursuant to this award are subject to recovery under the Company's clawback policy or any law, government regulation or stock exchange listing requirement and will be subject to such deductions and clawback made pursuant to such policy, law, government regulation, or stock exchange listing requirement, all as determined by the Board of Directors or the Compensation Committee.  The Company's current clawback policy is subject to revision by the Board or Compensation Committee at any time and from time to time.

15. Successors of Company.  This Agreement shall be binding upon and shall inure to the benefit of any successor of the Company but, except as provided herein, the Option may not be assigned or otherwise transferred by the Optionee.

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16. Rights as a Shareholder.  The Optionee shall have no rights as a shareholder with respect to any shares of Common Stock until the date the Optionee becomes the holder or record of those shares.  No adjustment shall be made for dividends or other rights for which the record date occurs before the date the Optionee becomes the holder of record.

17. Amendments.  The Company may at any time amend this Agreement if the amendment does not adversely affect the Optionee and no amendment that does adversely affect the Optionee shall be valid or binding.  Otherwise, this Agreement may not be amended without the written consent of the Optionee and the Company.

18. Governing Law; Jurisdiction and Venue.  This Agreement will be interpreted under the laws of the state of Minnesota, exclusive of choice of law rules.  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.

19. Complete Agreement.  This Agreement and the Employment Agreement constitute the entire agreements between the Optionee and the Company, both oral and written concerning the matters addressed herein, and all prior agreements or representations concerning the matters addressed herein, whether written or oral, express or implied, are terminated and of no further effect.

20. Electronic Delivery of Prospectus.  The Optionee consents to the electronic delivery of any prospectus and related documents relating to the Options in lieu of mailing or other form of delivery.

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Exhibit 10.5

 

PERFORMANCE SHARE UNIT AWARD AGREEMENT 

This Performance Share Unit Award Agreement (the "Agreement") is entered into as of January 2, 2024 between SunOpta Inc., a Canadian corporation (the "Company"), and Brian W. Kocher (the "Recipient").

On January 2, 2024 (the "Award Date") the Company's Board of Directors or the Compensation Committee of the Board of Directors (the "Board") authorized the grant of performance share units to Recipient pursuant to the terms of this Agreement. Recipient desires to accept the award subject to the terms and conditions of this Agreement. This award is not, and shall not be deemed to be, granted under or subject to the terms of the Company's Amended 2013 Stock Incentive Plan or any other plan. This award is granted pursuant to the terms of the Executive Employment Agreement dated December 1, 2023 between the Company and Recipient (the "Employment Agreement") and in the event of any inconsistency between this Agreement and the Employment Agreement as to timing of vesting or any other provision, the terms of the Employment Agreement shall control and apply.

NOW, THEREFORE, the parties agree as follows:

1. Award.  The Company grants to Recipient ____ performance share units ("PSUs"), which represents 200% of Recipient's target amount of PSUs, with respect to the Company's common shares ("Common Shares").  Subject to the terms and conditions of this Agreement, the Company shall issue to Recipient the number of Common Shares of the Company corresponding to the number of PSUs determined under this Agreement based on (a) the performance of the Company as described in Section 2 and (b) Recipient's continued employment through the vesting date pursuant to Section 3.

2. Performance Conditions. The vesting of the PSUs, if vesting occurs at all, is dependent on the Company's total shareholder return (the "TSR") performance relative to the Russell 3000 Food and Beverage companies designated for comparison by the Board, as noted in the table below (the "Hurdles") during the three-year period commencing on January 1, 2024 and continuing through December 31, 2026 (the "Performance Period"), subject to the Recipient's continued employment until April 15, 2027 (the "Vesting Date").

A percentage of the PSUs shall vest upon achievement of the applicable Hurdle in accordance with the table below. Achievement of the Hurdle shall be determined by calculating the TSR for the Company and each of the companies in the Russell 3000 Food and Beverage designated index using a 20-trading day average closing price as of December 31, 2026. The following parameters shall apply to the calculation: dividends and cash equivalent distributions for a company shall be considered reinvested; any company that ceases trading during the Performance Period shall be excluded from the beginning and ending calculation (e.g. acquired companies and financial distressed companies).

Percentile Hurdle	Portion of PSUs That Will Vest
Less than 25th percentile	0%
25th percentile	25%
50th percentile	100%
75th percentile	125%
90th or more percentile	200%

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If none of the Hurdles are met, none of the PSUs will vest.  If the 25^th percentile Hurdle is met, only 25% of the PSUs will vest.  If the 50^th percentile Hurdle is met, 100% of the PSUs will vest.  If the 90^th percentile or above Hurdle is met, 200% of the PSUs will vest. Performance shall be interpolated between the Hurdles (i.e. between 25^th and 50^th percentile, 50^th and 75^th percentile, and 75^th and 90^th percentile). 

In the event the Company is acquired during the Performance Period and the Company's Common Shares cease to be publicly traded as a result of such acquisition, relative TSR for purposes of determining achievement of the Hurdle will be calculated for the Company and the comparison companies as of the date the Company's Common Shares cease to be publicly traded, based on the 20-trading day average closing price prior to the last trading date rather than December 31, 2026.

All vested PSUs shall be settled by the Company as soon as reasonably practicable following the Vesting Date, subject to continued employment through the Vesting Date pursuant to Section 3 (except as provided in Section 3.2 or 3.3), and all unvested PSUs shall be forfeited and cancelled.

3. Employment Condition.

3.1 Payout.  In order to receive a payout of shares under this Agreement, Recipient must be employed by the Company continuously from the Award Date through the Vesting Date, except as provided in Sections 3.2 or 3.3 below. For purposes of this Agreement, Recipient is considered to be employed by the Company if Recipient is employed by the Company or any parent or subsidiary of the Company (an "Employer").

3.2 Total Disability.  If Recipient's employment with the Company is terminated at any time prior to the Vesting Date because of Total Disability (as defined in the Employment Agreement), any PSUs that are vested as of the Termination Date (as defined in the Employment Agreement), shall be settled in accordance with the terms of this Agreement.

3.3 Death.  If Recipient's employment with the Company is terminated at any time prior to the Vesting Date because of death, any PSUs that are vested as of the Termination Date (as defined in the Employment Agreement), shall be settled in accordance with the terms of this Agreement.

3.4 Change in Control.  If a Change in Control (as defined in the Employment Agreement) occurs and Recipient's employment with the Company is terminated by the Company (or its successor) without Cause or by Recipient with Good Reason at any time within 12 months following the Change in Control and prior to the end of the Performance Period, a number of unvested PSUs as to which the applicable Hurdle has been satisfied as of the date of Change in Control multiplied by a fraction, the numerator of which is the number of days during the Performance Period Recipient is employed by the Company and the denominator is the total number of days in the Performance Period shall immediately vest as of the date of employment termination and any such PSUs that vest in accordance with this Section 3.4 shall be settled in accordance with the terms of this Agreement, provided that Recipient executes and delivers a release of claims in accordance with this Section 3.4.  Recipient shall not be entitled to receive any shares with respect to any PSUs as to which the applicable Hurdle performance requirements have not been satisfied as of the Change in Control. 

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3.5 Other Terminations.  If Recipient's employment by the Company is terminated at any time before the Vesting Date and none of Sections 3.2, 3.3 or 3.4 applies to such termination, Recipient shall not be entitled to receive any shares under this Agreement.

4. Payment.  As soon as practicable following the Vesting Date, the Board shall determine the number, if any, of Common Shares, issuable pursuant to this Agreement.  Subject to applicable tax withholding, such shares shall be issued to Recipient as soon as practicable following the Vesting Date. No fractional shares shall be issued and the number of shares deliverable shall be rounded down to the nearest whole share, and any remaining fractional shares shall be paid in cash. Notwithstanding anything hereinabove to the contrary, if Section 3.5 requires an earlier award payout, a similar process shall be followed in accordance with the timing identified therein. 

5. Tax Withholding. 

5.1 If Recipient is a U.S. or Canadian taxpayer, Recipient acknowledges that on the date that shares underlying the PSUs are issued to Recipient, the fair market value of the Common Shares will be treated as ordinary compensation income for federal and state and provincial income tax purposes and employment tax purposes (including FICA in the U.S. and EI and CPP in Canada), and that the Company will be required to withhold taxes on these income amounts pursuant to Section 5.2 below.  The Company will inform employees in other countries of the tax treatment of the PSUs and withholding requirements.

5.2 Prior to any relevant taxable or tax withholding event, as applicable, Recipient agrees to make adequate arrangements satisfactory to the Company and/or the Employer to satisfy all federal, state and other tax withholding obligations. In this regard, Recipient authorizes the Company and/or the Employer, or their respective agents, at their discretion, to satisfy applicable withholding obligations by one or a combination of the following:

(a) withholding from Recipient's other cash compensation paid by the Company and/or the Employer; or

(b) withholding from proceeds of the sale of Common Shares acquired upon vesting/settlement of the PSUs either through a voluntary sale or through a mandatory sale arranged by the Company on Recipient's behalf pursuant to this authorization; or

(c) withholding in Common Shares to be issued upon vesting/settlement of the PSUs or, if the PSUs are settled in whole or part in cash, withholding the cash to be paid in settlement.

5.3 If the withholding obligation is satisfied by withholding in Common Shares, for tax purposes, Recipient is deemed to have been issued the full number of Common Shares subject to the vested PSUs, notwithstanding that a number of the Common Shares are held back solely for the purpose of paying the withholding.

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5.4 Recipient agrees to pay to the Company or the Employer any amount the Company or the Employer may be required to withhold or account for as a result of this award that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the shares or the proceeds of the sale of shares if Recipient fails to comply with these obligations.

6. Stock Splits, Stock Dividend; Mergers, Etc. 

6.1 If the outstanding Common Shares of the Company are hereafter increased or decreased or changed into or exchanged for a different number or kind of shares or other securities of the Company by reason of any stock split, combination of shares, dividend payable in shares, recapitalization or reclassification, appropriate adjustment shall be made by the Company in the number and kind of shares subject to the PSUs, so that Recipient's proportionate interest before and after the occurrence of the event is maintained, relative to other shareholders of the Common Shares.  Notwithstanding the foregoing, the Company shall have no obligation to effect any adjustment that would or might result in the issuance of fractional shares, and any fractional shares resulting from any adjustment may be disregarded or provided for in any manner determined by the Company.  Any such adjustments made by the Company shall be conclusive.  For the avoidance of doubt, this provision is intended to put the Recipient in the same position with respect to each PSU as if Recipient owned a share of common stock immediately prior to such event.

6.2  Mergers, Reorganizations, Etc. If, while any unvested PSUs are outstanding, there shall occur a merger, consolidation, amalgamation or plan of exchange, in each case involving the Company pursuant to which outstanding Common Shares are converted into cash or other stock, securities or property (each, a "Transaction"), (i) all outstanding PSUs as to which the applicable Hurdle performance requirement set forth in Section 2 has not been satisfied as of the closing of the Transaction shall be forfeited and cancelled and (ii) the Board of Directors, may, in its sole discretion, provide that the remaining PSUs shall be treated in accordance with any of the following alternatives:

(a) The remaining PSUs shall be converted into performance share units to acquire stock of the surviving or acquiring corporation in the Transaction (unless otherwise accelerated as determined by the Board of Directors in its sole discretion) and shall be subject to continued employment of Recipient by the Company or any acquiring or surviving company through such vesting date, with the amount and type of shares subject thereto to be conclusively determined by the Board of Directors, taking into account the relative values of the companies involved in the Transaction and the exchange rate, if any, used in determining shares of the surviving corporation to be held by holders of common shares of the Company following the Transaction, and disregarding fractional shares, and the performance measures adjusted to reflect the circumstances of the Company or any acquiring or surviving corporation as conclusively determined by the Board of Directors;

(b) The remaining PSUs shall be cancelled effective immediately prior to the consummation of the Transaction, and, in full consideration of the cancellation, the surviving company shall pay to Recipient upon the completion of the Performance Period, with payment subject to continued employment of  Recipient by the Company or any acquiring or surviving company through such date, an amount in cash, for each remaining PSU, equal to the value, as determined by the Board of Directors, of the Common Shares subject to the unvested PSUs at the time of closing of the Transaction, taking into account the relative values of the companies involved in the Transaction and the exchange rate, if any, used in determining shares of the surviving corporation to be held by holders of Common Shares of the Company following the Transaction or other consideration paid in the Transaction to holders of Common Shares of the Company; or

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(c) The remaining PSUs shall become vested in full and all unissued shares subject to the PSUs shall be issued immediately prior to the consummation of the Transaction.

  7. Section 409A.  The award granted pursuant to this Agreement is intended to be compliant with Section 409A of the Internal Revenue Code ("Section 409A") and shall be interpreted consistent with such intent.  The Company may amend this Agreement, adopt policies or procedures or take other actions, including with retroactive effect, that the Company determines are necessary or appropriate to exempt the award from the application of Section 409A or to comply with the requirements of Section 409A.  Notwithstanding the foregoing, the Company makes no representation or warranty to Recipient with regard to the application of Section 409A to any amounts payable pursuant to this Agreement and shall in no event be obligated to mitigate or indemnify for any taxes otherwise imposed on Recipient as a result of application of Section 409A.   

8. No Right to Employment.  Nothing contained in this Agreement shall confer upon Recipient any right to be employed by the Company or to interfere in any way with the right of the Company to terminate Recipient's employment at any time for any reason, with or without cause.  For the avoidance of doubt, this provision is intended to put the Recipient in the same position with respect to each PSU as if Recipient owned a share of common stock immediately prior to such event.

9. Clawback.  This award and any stock issued pursuant to this award are subject to recovery under the Company's clawback policy or any law, government regulation or stock exchange listing requirement and will be subject to such deductions and clawback made pursuant to such policy, law, government regulation, or stock exchange listing requirement, all as determined by the Board of Directors or the Compensation Committee.  The Company's current clawback policy is subject to revision by the Board or Compensation Committee at any time and from time to time.

10. Miscellaneous.

10.1 Entire Agreement; Amendment.  This Agreement constitutes the entire agreements of the parties with regard to the subjects hereof and may be amended only by written agreement between the Company and Recipient.

10.2 Notices.  Any notice required or permitted under this Agreement shall be in writing and shall be deemed sufficient when delivered personally to the party to whom it is addressed or when deposited into the United States or Canadian mail as registered or certified mail, return receipt requested, postage prepaid, addressed to the Company, Attention: General Counsel, at its principal executive offices or to Recipient at the address of Recipient in the Company's records, or at such other address as such party may designate by ten (10) days' advance written notice to the other party.

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10.3 Assignment; Rights and Benefits.  Recipient shall not assign this Agreement or any rights hereunder to any other party or parties without the prior written consent of the Company. The rights and benefits of this Agreement shall inure to the benefit of and be enforceable by the Company's successors and assigns and, subject to the foregoing restriction on assignment, be binding upon Recipient's heirs, executors, administrators, successors and assigns.

10.4 Further Action.  The parties agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement.

10.5 Administrative Error.  In the event it is determined that an administrative error was made in the number of PSUs awarded to the Recipient, the Company shall have the right to revise the award previously issued to the Recipient to the correct amount.

10.6 Applicable Law.  The terms and conditions of this Agreement will be interpreted under the laws of Minnesota, exclusive of choice of law rules.  In the event either party institutes litigation hereunder, the prevailing party shall be entitled to reasonable attorneys' fees to be set by the trial court and, upon any appeal, the appellate court. 

10.7 Counterparts.  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original.

SUNOPTA INC.			RECIPIENT
By:
Name:			Brian W. Kocher
Title:

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Exhibit 99.1

FOR IMMEDIATE RELEASE

SUNOPTA ANNOUNCES CEO RETIREMENT AND APPOINTS BRIAN W. KOCHER AS SUCCESSOR

Reaffirms Outlook for Q4 2023 and 2024

Minneapolis, Minnesota - December 6, 2023 - SunOpta Inc. ("SunOpta" or the "Company") (Nasdaq:STKL) (TSX:SOY), a U.S.-based global pioneer fueling the future of sustainable, plant-based foods and beverages, today announced the planned retirement of Joseph D. Ennen. After five years of dedicated service, Mr. Ennen will retire from SunOpta as its Chief Executive Officer and director on SunOpta's Board of Directors (the "Board").

The Board has appointed Brian W. Kocher as the new Chief Executive Officer, effective January 2, 2024. In conjunction with this appointment, Mr. Kocher will also become a member of the Board. Mr. Kocher brings a wealth of experience in manufacturing intensive businesses in complex, multi-national organizations and has a strong track record of driving growth and productivity improvements. Brian previously served as President and Chief Executive Officer of both Calavo Growers Inc., a global avocado-industry leader and provider of convenient, ready-to-eat fresh food and Castellini Group of Companies, a nationwide produce distribution and supply chain service organization, as well as interim Chief Executive Officer of Chiquita. The Board is confident in Mr. Kocher's ability to lead SunOpta through its next phase of growth and his experience expanding margins and driving operational productivity will be incredibly valuable to the business. To ensure a seamless transition, which the Board believes is in the best interests of all stakeholders, Mr. Ennen will continue as an advisor to the Board and Mr. Kocher until April 1, 2024.

"On behalf of the entire Board, I want to thank Joe for his invaluable leadership of SunOpta over the past five years," said Dean Hollis, Chair of SunOpta's Board. Joe's vision and tireless commitment to the success of the Company led to a complete portfolio transformation and solidified our balance sheet, strengthening SunOpta's competitive position and creating a powerful foundation to support an even brighter future. It has been a privilege to work with Joe and we wish him the absolute best in his retirement. With Joe's support, we were thrilled to find Brian and are confident he is the right leader to continue the Company's strategy to deliver significant long-term sustainable growth and value for shareholders."

"It has been an honor to serve as CEO of SunOpta during this period of transformative growth and I especially want to thank the SunOpta team for their passion, hard work and dedication," said Ennen. "I believe the Company is well positioned for its next phase of growth with a current portfolio that has demonstrated steady long-term increases in volume, revenue and Adjusted EBITDA. We are reaffirming our Q4 outlook and 2024 forecast to further reflect our confidence in the future. Brian's deep food industry expertise, coupled with his shared values and commitment to furthering our purpose, make him the right leader to continue to drive growth and optimize our network. I look forward to working closely with Brian during this transition and I have the utmost confidence that his leadership will inspire the continued growth and mission of SunOpta."

Mr. Kocher commented, "I am thrilled to serve as SunOpta's next CEO and would like to thank Joe and the Board for entrusting me to lead the Company as we enter this new chapter. Joe has set a strong foundation for SunOpta's growth and success, and I'm excited to continue this momentum by working toward our collective mission of fueling the future of food."

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Brian W. Kocher Biography

Brian W. Kocher served as President, Chief Executive Officer of Calavo Growers Inc., a global avocado-industry leader and provider of convenient, ready-to-eat fresh food with 3,200 employees in the United States and Mexico, from January 2022 to February 2023. Before joining Calavo, Mr. Kocher was President and Chief Executive Officer of Castellini Group of Companies, a nationwide produce distribution and supply chain services organization, from May 2015 to January 2022. Prior to Castellini, Mr. Kocher spent ten years at Chiquita Brands International, Inc., including as Interim Chief Executive Officer, EVP and Chief Operating Officer, SVP and Chief Financial Officer, President of Europe, President of North America, and Vice President, Controller and Chief Accounting Officer. Mr. Kocher graduated from Ohio University in Athens, Ohio with a Bachelor of Business Administration (Accounting) degree.

About SunOpta Inc.

SunOpta (Nasdaq:STKL) (TSX:SOY) is a U.S.-based, global pioneer fueling the future of sustainable, plant-based food and beverages. Founded more than 50 years ago, SunOpta manufactures natural, organic and specialty products sold through retail and foodservice channels. SunOpta operates as a manufacturer for leading natural and private label brands, and also proudly produces its own brands, including SOWN ^®, Dream^®, and West Life^TM. For more information, visit www.sunopta.com and LinkedIn.

Contacts:

Investor Relations:

Reed Anderson

ICR

646-277-1260

reed.anderson@icrinc.com

Media Relations:

Konnect Agency

213-988-8344

sunopta@konnectagency.com

Source: SunOpta Inc.

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v3.23.3

Document and Entity Information Document	Dec. 01, 2023
Document Information [Line Items]
Document Type	8-K
Document Creation Date	Dec. 01, 2023
Document Period End Date	Dec. 01, 2023
Amendment Flag	false
Entity Registrant Name	SunOpta Inc.
Entity Address, Address Line One	7078 Shady Oak Road
Entity Address, City or Town	Eden Prairie
Entity Address, State or Province	MN
Entity Address, Postal Zip Code	55344
Entity Incorporation, State Country Name	Z4
City Area Code	952
Local Phone Number	820-2518
Entity File Number	001-34198
Entity Central Index Key	0000351834
Entity Emerging Growth Company	false
Entity Tax Identification Number	00-0000000
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
NASDAQ [Member] | Common Stock [Member]
Document Information [Line Items]
Title of 12(b) Security	Common Shares
Trading Symbol	STKL
Security Exchange Name	NASDAQ
Toronto Stock Exchange [Member] | Common Stock [Member]
Document Information [Line Items]
Title of 12(b) Security	Common Shares
Trading Symbol	SOY

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