Exhibit 10.30
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT dated as of July 18, 2005 (the "Effective
Date") is made by and between Merisant Company, a Delaware corporation (the
"Company"), and Xxxxxxx X. Xxxxxxxxx (the "Executive").
WHEREAS, the Company desires to employ the Executive as Chief
Financial Officer, Vice President Finance of the Company, upon and subject to
the terms and conditions set forth herein, and the Executive wishes to accept
such employment upon and subject to such terms and conditions;
NOW, THEREFORE, in consideration of the promises and mutual agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by both parties, the parties hereby
agree as follows:
1. EMPLOYMENT. (a) The Company hereby employs the Executive and the
Executive hereby accepts such employment upon and subject to the terms and
conditions of this Agreement from the Effective Date until the third annual
anniversary of the Effective Date, unless the Executive's employment is earlier
terminated pursuant to Section 4 (such period referred to as the "Initial
Term"). As of the conclusion of the Initial Term, the period of employment shall
automatically be extended on the same terms and conditions as set forth in this
Agreement for successive one-year periods unless and until either: (i) a party
gives the other party no less than sixty (60) calendar days' advanced written
notice prior to the end of the Initial Term or any such one-year extension
period that the party will not further extend the Initial Term or such one-year
extension period (as applicable), or (ii) either party terminates the
Executive's employment in accordance with Section 4. The Initial Term and any
and all extensions thereof (or partial extension in the event of an earlier
termination pursuant to Section 4), if any, shall be collectively referred to as
the "Employment Period".
(b) The Executive covenants, represents and warrants that: (i) the
execution, delivery and complete performance of this Agreement by him does not
and will not breach, violate or cause a default under any contract, agreement,
instrument, order, judgment or decree to which the Executive is a party or by
which he is bound; and (ii) he is not a party to or bound by any employment or
services agreement, confidentiality agreement, non-competition agreement, other
restrictive covenant, or other obligation or agreement that would or could
prohibit or restrict him from being employed by the Company or from performing
any of his duties under this Agreement.
2. POSITION, DUTIES AND RESPONSIBILITIES. The Company shall employ
the Executive during the Employment period as its Chief Financial Officer, Vice
President Finance, reporting to the Chief Executive Officer, and the Executive
shall serve in the same capacity for Merisant Worldwide, Inc. and Merisant US,
Inc. for no additional compensation. During the Employment Period, the Executive
shall perform the duties assigned to him hereunder faithfully, with the utmost
loyalty, to the best of his abilities and in the best interests of the Company;
shall devote his full business time, attention and effort to the affairs of the
Company; and shall not engage in any other business activities (whether or not
for gain, profit, or other pecuniary advantage) or any other actions which he
knows or reasonably should know could harm the business or reputation of the
Company or any of its affiliates or other related entities. Subject to the
powers, authority and responsibilities vested in the Company's Board of
Directors (the
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"Board") and in duly constituted committees of the Board, the Executive shall
have the authority and responsibility to direct the management and operation of
the Company and shall also perform such other duties on behalf of the Company
and its affiliates and other related entities, consistent with his title and
duties above, as the Board or Chief Executive Officer may from time to time
authorize or direct; provided, the Executive may engage in activities involving
professional, charitable, educational, religious and similar types of
organizations, speaking engagements, and management of personal investments, to
the extent that such other activities do not interfere with the performance of
Executive's duties under this Agreement, or conflict with the Code of Business
Conduct and Ethics of the Company or violate the terms of any of the covenants
provided in Section 5 hereof.
3. COMPENSATION AND BENEFITS.
(a) BASE SALARY. During the Employment Period, the Company shall pay
to the Executive a base salary at the gross rate of $275,000 per annum, less
required and authorized withholding and deductions (the "Base Salary"), payable
in installments in accordance with the Company's executive payroll policy. The
Base Salary shall be reviewed annually, at the same time as for other senior
officers of the Company, and increased, as determined by the Board in its
discretion, but not decreased except as part of an across-the-board reduction in
senior officer base salaries consistent with (on a percentage basis) reductions
applicable to other senior officers of the Company, and any such increased (or
decreased) amount shall be the Executive's "Base Salary" for all purposes
hereunder thereafter.
(b) PERFORMANCE BONUS. Subject to Section 4, commencing with calendar
year 2005 and during each calendar year of the Employment Period thereafter, the
Executive also will be eligible to receive an annual cash incentive bonus in
accordance with the Company's Annual Incentive Plan or other annual bonus plan,
as applicable, as determined by the Compensation Committee of the Board, in its
sole discretion, with a target bonus opportunity as a percentage of Base Salary
not less than 60% (the "Performance Bonus"). The performance criteria under the
Annual Incentive Plan or other annual bonus plan shall be determined by the
Chief Executive Officer of the Company within forty-five (45) days after the
beginning of the applicable fiscal year. The Performance Bonus in respect of any
fiscal year shall be paid in accordance with the procedures specified by the
Compensation Committee, but in no event later than ninety (90) days after the
end of each fiscal year. Notwithstanding, the Executive's Performance Bonus
attributable to calendar year 2005 shall be equal to not less than the gross
amount of $82,500 ("Guaranteed Bonus"), to be paid at such time as the date on
which the cash incentive bonus is paid to other executives of the Company but no
later than April 1, 2006 (less required and authorized withholding and
deductions). Any Performance Bonus payable hereunder shall be paid at such time
as the date on which the cash incentive bonus is paid to other executives of the
Company but no later than 90 days after the Performance Bonus year to which it
is attributable.
(c) SHARE APPRECIATION PLAN. Executive shall be considered an
eligible participant for purposes of the Merisant Worldwide Inc. 2005 Share
Appreciation Rights Plan as adopted by the Board of Directors in accordance with
its terms and conditions, as summarized on Exhibit B hereto, and as supplemented
pursuant to a plan document to be approved by the Board of Directors of Merisant
Worldwide, Inc., and Executive shall receive an award thereunder for 0.75% of
the Residual Equity Value (as defined in Exhibit B) achieved under this Plan.
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(d) EMPLOYEE BENEFITS. During the Employment Period, the Executive
shall be eligible to participate in such executive compensation and deferred
compensation plans, such employee benefit plans (including group health,
retirement and non-qualified retirement programs), and to receive such other
fringe benefits and perquisites, as the Company may make available to senior
executives generally, subject to all present and future terms and conditions of
such executive compensation and deferred compensation plans, benefit plans and
other fringe benefits and perquisites. In the event the Executive waives
participation in the medical, dental, and EAP ("Health Coverage") programs,
Executive shall receive a monthly payment of $266 payable through the regular
payroll and subject to withholding and other deductions as appropriate;
provided, such amount shall be increased (or decreased) from time to time as,
when and to the extent that, the underlying personal health insurance premium of
the Executive increases (or decreases) providing the Company is furnished with
timely documentation from Executive supporting the change. Such payment in lieu
of Health Coverage will cease upon election by the Executive to be covered under
any of the Health Coverage programs. The Company reserves the right in its sole
discretion to alter, suspend, amend, or discontinue any and all of its employee
and fringe benefits, benefit plans, policies and procedures, in whole or in
part, at any time with or without notice, provided that the Company will not
make any change to the Executive's employee or fringe benefits that it does not
also make on a consistent basis for other senior executives of the Company.
(e) VACATION. The Executive shall receive four weeks of paid vacation
per calendar year (prorated as appropriate for any partial calendar year)
subject to the Company's vacation policies and procedures as in effect or
amended from time to time.
(f) BUSINESS EXPENSES. The Company shall reimburse the Executive for
all expenses and disbursements reasonably incurred by the Executive in the
performance of the Executive's duties in accordance herewith during the
Employment Period, and provide such other facilities or services as the Company
and the Executive may, from time to time, agree are appropriate, in each case in
accordance with the Company's policies established from time to time for senior
officers of the Company and conditioned upon receipt of appropriate
documentation for such business expenses.
4. TERMINATION.
(a) Notwithstanding anything to the contrary in this Agreement, the
Executive's employment shall automatically terminate upon the Executive's death,
the Company may immediately terminate the Executive's employment for Cause or
Incapacity (as defined below) effective upon written notice to the Executive,
and the Executive may voluntarily terminate his employment at any time for any
reason effective upon sixty (60) days prior written notice to the Company. In
the event of any such termination, the Executive shall receive his Accrued
Benefits and shall not be entitled to any other amounts from the Company.
Executive's "Accrued Benefits" are (i) any earned but unpaid base salary through
the last day of the Period of Employment, (ii) any earned but unpaid annual cash
bonus or other incentive award for the fiscal year prior to the fiscal year
during which the Period of Employment ends, (iii) any accrued but unpaid
vacation pay, (iv) any reimbursable business expenses or unpaid perquisites
through the last day of the Employment Period, (v) any vested benefits,
including performance awards under Company incentive plans, through the last day
of the Employment Period in accordance with the Company's employee benefit plans
or programs and executive compensation and deferred compensation plans, and (vi)
any benefit continuation or conversion rights in accordance with
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the Company's employee benefit plans or programs. Executive shall also be paid
his Guaranteed Bonus if unpaid at that time and the effective termination date
is a date after December 31, 2005. Executive's Accrued Benefits shall be paid in
a lump sum within thirty days after the date of termination, except that Accrued
Benefits payable pursuant to clause (ii), and any Guaranteed Bonus, shall be
paid when bonuses are paid to other senior executives and amounts payable
pursuant to clauses (v) and (vi) shall be paid in accordance with the applicable
plan.
(i) "Incapacity" means such physical or mental condition of
the Executive which renders and is expected to render the Executive incapable of
performing the essential functions of his position hereunder with or without
reasonable accommodation for 180 calendar days (whether consecutive or not)
within any 360-calendar-day period, as determined in good faith by the Board
upon consultation with a physician selected by the Board in its discretion. The
Executive hereby agrees to submit to any reasonable medical examination(s) as
may be recommended by the Company for the purpose of determining the existence
or absence of Incapacity.
(ii) "Cause" means any of the following conduct by the
Executive, as determined in good faith by the Board: (I) embezzlement,
misappropriation of corporate funds, fraud, or other material acts of
dishonesty; (II) conviction of any felony, or of any misdemeanor involving moral
turpitude, or entry of a plea of guilty or nolo contendere to any such felony or
misdemeanor; (III) engaging in illegal conduct or gross misconduct which causes
financial or reputational harm to the Company or any of its affiliates or other
related entities; (IV) refusal to perform or continued willful disregard of his
duties and responsibilities (other than due to any failure resulting from
incapacity due to physical or mental illness or injury), (V) material breach of
any written policy of the Company or a subsidiary, including the Company's Code
of Business Conduct and Ethics, as in effect or amended from time to time; (VI)
breach or threatened breach of Section 5 of this Agreement (including without
limitation any provision of Exhibit A hereto); (VII) material breach of any
other provision of this Agreement; or (VIII) violation of any statutory or
common law duty of loyalty to the Company or any of its affiliates or other
related entities. Notwithstanding the foregoing, the Company shall not terminate
the Executive's employment pursuant to subparts (III), (IV), or (VII) of this
Section 4(a)(ii) unless the Company first gives the Executive notice in
reasonable detail describing the basis for such "Cause" and a reasonable
opportunity to cure any such grounds for termination (provided that no such
notice and cure shall be required as to any such grounds that are not reasonably
susceptible to a cure under the circumstances). For purposes of this Section
4(a)(ii), acts or omissions of the Executive shall not be considered "willful"
if done or omitted by the Executive in good faith and with a reasonable belief
that such conduct is in the best interests of the Company.
(b) Notwithstanding anything to the contrary in this Agreement, the
Company may terminate the Executive's employment for any reason other than
Incapacity or Cause or for no reason at any time by written notice to the
Executive, at which time the Executive shall be entitled to receive an amount
("Severance") equal to one year's Base Salary either through salary continuation
or a lump sum payment, or combination thereof, at the Company's discretion. If
at the time of termination the Executive has Health Coverage, then the Executive
shall be entitled to continuation of his Health Coverage for one year following
the date of termination with premiums charged to him at active employee rates,
which coverage shall be concurrent with any COBRA benefits subject to all terms
and conditions of the COBRA Act. The Executive shall
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receive a pro rata (based on the portion of the year employed) target bonus for
the year of termination, payable when bonuses are paid to other senior
executives. The Executive shall be entitled to his Accrued Benefits and his
Guaranteed Bonus to the extent not previously paid.
(c) The Executive understands and agrees that the termination of his
employment due to the expiration of the Employment Period following a notice by
the Company pursuant to Section 1(a) that the Company will not extend (or
further extend) the Employment Period (a "Non-Renewal") shall not constitute or
be considered a termination pursuant to Section 4(a) or 4(b), and shall entitle
the Executive to his Accrued Benefits and no other amounts; provided, if the
Company gives Executive notice of Non-Renewal and Executive's employment is
terminated by the Company on or after the resulting expiration of the Employment
Period, then Executive shall receive a pro rata (based on the portion of the
year employed) target bonus for the year of such termination, payable when
bonuses are paid to other senior executives.
(d) Any termination of the Executive's employment shall automatically
effectuate the Executive's removal from any and all officer positions that the
Executive then holds with the Company as of the effective termination date. Any
and all payments to the Executive under this Agreement shall be reduced by
required or authorized withholding and deductions.
(e) The Executive shall be entitled to all benefits (including
incentive awards and severance) provided to senior executives of the Company
(excepting the CEO) in the event of a change of control. The Executive's award
under the 2005 Share Appreciation Rights Plan shall vest on terms and conditions
no less favorable than those provided to other senior executives of the Company,
including the CEO.
(f) Upon termination of the Period of Employment, the Executive shall
be under no obligation to seek other employment or otherwise mitigate the
obligations of the Company under this Agreement. Amounts due to the Executive
under this Agreement shall not be subject to offset by the Company for any
claims the Company may have against the Executive, unless otherwise specifically
agreed to in writing by the Executive.
(g) If the Executive incurs an excise tax imposed on "excess
parachutes payments" under Internal Revenue Code Section 4999, as defined in
Code Section 280G, on account of any amount paid or payable to, or for the
benefit of, the Executive by the Company or its stockholders or affiliates in
respect of obligations of the Company, in each case, in respect of this
Agreement or any of the Company's incentive and benefit plans, then the Company
shall pay the Executive, within ten days prior to the date payable by Executive,
an amount equal to the sum of (x) the excise taxes (penalties and interest,
other than if caused solely by Executive's inaction in filing or payment timely)
payable on such excess parachutes payments, plus (y) an additional amount such
that after payment of all taxes (penalties and interest, other than if caused
solely by Executive's inaction in filing or payment timely) on such additional
amount there remains a balance sufficient to pay taxes actually due and payable
on the tax referred to in clause (x). References to "excise tax" and "taxes" in
this Section 4(g) shall also mean all penalties and interest thereon, other than
such penalties and interest incurred by Executive solely by his inaction in
filing or payment timely.
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5. CONFIDENTIALITY. By his execution of this Agreement, the
Executive hereby agrees to abide by the Confidentiality Agreement attached as
Exhibit A hereto and hereby made a part of this Agreement. In the event of any
conflict between the main body of this Agreement and Exhibit A, the provisions
of the main body of this Agreement shall control (including, without limitation,
(i) that the duration of the post-employment covenants under Section 6(a) and
6(b) shall control over the two-year duration of such similar covenants in
Exhibit A and (ii) the limitation of the covenant under Section 6(a) to the
Competitive Enterprises in Exhibit C (as in effect from time to time) shall
control over the definition of "Competitive Work" in Exhibit A). The Executive
acknowledges and agrees that a breach of any provision of this section
(including without limitation any provision of Exhibit A) will result in
immediate and irreparable harm to the Company and its affiliates and other
related entities for which full damages cannot readily be calculated and for
which damages are an inadequate remedy. Accordingly, the Executive agrees that
the Company and its affiliates and other related entities shall be entitled to
injunctive relief to prevent any such actual or threatened breach or any
continuing breach by the Executive (without posting a bond or other security),
without limiting any other remedies that may be available to them.
6. NON-COMPETITION AND NON-SOLICITATION AGREEMENT
a) NON-COMPETE.
Without the consent in writing of the Board, during the Period of
Employment and for the period of twelve (12) months following termination of
employment, the Executive will not permit the Executive's name to be used by, or
engage in, or carry on, directly or indirectly, either for the Executive or as a
member of a partnership or as a stockholder, member, manager, investor, officer
or director of a corporation, limited liability company or similar entity or as
an employee, agent, associate or consultant of any person, partnership,
corporation, limited liability company or similar entity, any business in
competition with the business carried on by the Company or any of its
subsidiaries within the geographical areas in which the Company or its
subsidiaries are conducting their business operations or providing services as
of the date of the Executive's termination of employment (a "Competitive
Enterprise"). The names of the Competitive Enterprises as of the date of this
Agreement are set forth on Exhibit C. The Company shall furnish the Executive
with an updated Exhibit C at least annually, provided, however, that in no event
shall the number of Competitive Enterprises exceed ten (10) such Competitive
Enterprises. Notwithstanding the preceding sentence, the Executive shall not be
prohibited from owning less than five percent (5%) of the equity of any publicly
traded entity.
b) NON-SOLICIT.
Without the consent in writing of the Board (which consent shall be in the
sole discretion of the Board), during the Period of Employment, and for the
period of twenty-four (24) months following termination of employment by the
Company without Cause or by the Executive for any reason, or for the period of
twelve (12) months following termination of employment for any other reason, the
Executive shall not, in any manner, directly or indirectly (without the prior
written consent of the Company): (i) Solicit any Customer to transact business
with a Competitive Enterprise or to reduce or refrain from doing any business
with the Company, (ii) transact business with any Customer that would cause the
Executive to be a Competitive Enterprise, (iii) interfere with or damage any
relationship between the Company and a Customer or (iv) Solicit anyone who is
then an executive of the Company (or who was an executive of the
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Company on the date of the Executive's termination of employment or within the
prior twelve (12) months) to resign from the Company or to apply for or accept
employment with any other business or enterprise.
For purposes of this Agreement, (i) a "Customer" means any customer or
prospective customer of the Company or its subsidiaries to whom the Executive
provided services, or for whom the Executive transacted business, or whose
identity became known to the Executive in connection with the Executive's
relationship or continued employment with the Company or its subsidiaries, and
(ii) "Solicit" means any direct or indirect communication of any kind,
regardless of who initiates it, that in any way invites, advises, encourages or
requests any person to take or refrain from taking any action.
c) EFFECT OF MATERIAL BREACH. In the event the Executive materially
breaches the provisions of paragraphs (a) or (b) of this Section 6, the Company
may immediately cease all payments to the Executive under this Agreement, may
seek recovery of payments received by the Executive under this Agreement and
shall be entitled to seek an injunction, restraining order or other equitable
relief restraining any such material breach, and monetary damages for such
material breach; provided, however, that nothing in the preceding shall prohibit
or otherwise impact the Executive's right or ability to dispute that a material
breach has occurred.
7. NOTICES. Any notice, request, or other communication required or
permitted to be given hereunder shall be made to the following addresses or to
any other address designated by either of the parties hereto by notice similarly
given: (a) if to the Company, to the attention of General Counsel, Merisant
Company, 00 X. Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000; and (b) if to the
Executive, to Xxxxxxx X. Xxxxxxxxx, at his last residence address identified on
the payroll records of the Company. All such notices, requests, or other
communications shall be sufficient if made in writing either (i) by personal
delivery to the party entitled thereto, (ii) by facsimile with confirmation of
receipt, (iii) by certified mail, return receipt requested, or (iv) by express
courier service, and shall be effective upon personal delivery, upon
confirmation of receipt of facsimile transmission, upon the fourth day after
mailing by certified mail, or upon the second day after sending by express
courier service from within the United States.
8. ASSIGNMENT. This Agreement is enforceable by the Company and its
affiliates and other related entities and may be assigned or transferred by the
Company to, and shall be binding upon and inure to the benefit of, any parent,
affiliate or other related entity of the Company or any entity which at any
time, whether by merger, purchase, or otherwise, acquires all or substantially
all of the assets, stock or business of the Company. The Executive may not
assign any of his rights or obligations under this Agreement. The Company shall
cause any successor to expressly assume and agree, in writing delivered to
Executive, to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform if no such succession had taken
place, and failure to do so shall be grounds for Executive to voluntarily
terminate his employment at any time within thirty days thereafter which
termination shall be treated for all purposes as an involuntary termination
without Cause (and other than due to Incapacity).
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9. ARBITRATION.
(a) Except for claims or disputes under Section 5 or Exhibit A, the
Executive and the Company agree that, to the extent permitted by law, all claims
or disputes arising out of or relating to this Agreement, the parties'
employment relationship, or the termination of such relationship that may exist
or arise between the Executive and the Company, or any subsidiary, parent,
affiliate, other related entity, benefit plan, successor or permitted assign of
the Company, or any owner, director, officer, member, employee, owner,
shareholder, agent, or representative of any of them (in their respective
capacities as such) shall be submitted for binding arbitration in Chicago,
Illinois and resolved by a member of a Chicago, Illinois arbitration panel (or
by such other arbitrator or in such other place to which the parties agree) in
accordance with the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association (as in effect or amended from time to
time), except as set forth below. Claims subject to arbitration hereunder
include without limitation claims by the Executive for employment
discrimination, harassment, retaliation, wrongful termination or defamation
under any federal, state, or local law, regulation, ordinance, or executive
order or under common law, and further include without limitation claims under
any of the following statutes (as in effect or amended from time to time): the
Illinois Human Rights Act, the Chicago and Xxxx County Human Rights Ordinances,
Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment
Act, the Americans With Disabilities Act, the Family and Medical Leave Act and
the Employee Retirement Income Security Act.
(b) The arbitrator shall have no power to modify the provisions of
this Agreement (except pursuant to Section 14 herein or Exhibit A), or to make
an award or impose a remedy that is not available to a court of general
jurisdiction sitting in Chicago, Illinois or that was not requested by a party
to the claim or dispute, and the jurisdiction of the arbitrator is limited
accordingly. The arbitrator shall apply the substantive internal law of the
state of Illinois, except as otherwise required by law. The arbitrator's
decision or award shall be final and binding, and judgment thereupon may be
entered in any Illinois or other court having jurisdiction thereof.
(c) Notwithstanding the foregoing, the Company may in its discretion
immediately pursue any and all available legal and equitable remedies for the
Executive's violation of any provision of Section 5 or Exhibit A in any court of
competent jurisdiction.
10. AMENDMENT AND WAIVER. This Agreement may not be amended orally
and may only be amended by written instrument signed by both parties (subject to
Section 14 herein and Exhibit A). A waiver by either party hereto of any of its
rights or remedies under this Agreement on any occasion shall not be a bar to
the exercise of the same right or remedy on any subsequent occasion or of any
other right or remedy at any time.
11. GOVERNING LAW. This Agreement shall be governed by the internal
laws of the state of Illinois, without regard to its conflict of laws rules.
12. HEADINGS; CONSTRUCTION. The Section headings used herein are for
convenience of reference only and are not to be considered in construction of
the provisions of this Agreement. The use of the word "including" in this
Agreement shall be by way of example rather than by limitation.
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13. ENTIRE AGREEMENT AND SURVIVAL. This Agreement (including Exhibit
A, Exhibit B, and Exhibit C hereto) contains the entire agreement between the
parties with respect to the subject matter contained herein and supersedes all
prior or contemporaneous negotiations, understandings or agreements between the
parties, whether written or oral, with respect to such subject matter. Sections
4 through 16 herein and Exhibit A and Exhibit B to this Agreement shall survive
and continue in full force and effect in accordance with their respective terms,
notwithstanding any termination of the Employment Period or the Executive's
employment.
14. SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
15. CONDITION PRECEDENT. This Agreement and the Executive's
employment hereunder will not be effective unless and until the Board duly
approves this Agreement and each of the Boards of Directors of the Company,
Merisant Worldwide Inc., and Merisant Company appoints Executive to the position
of Chief Financial Officer, Vice President Finance of each of the corporations.
This Agreement shall be null and void and shall be of no force and effect in the
event that the Board does not so approve this Agreement for any or no reason.
16. COUNTERPARTS. This Agreement may be executed in two counterparts,
each of which shall be deemed an original, and both of which together shall
constitute one and the same instrument.
17. INCONSISTENCY. In the event of any inconsistency between this
Agreement and any other agreement, plan, award or program, this Agreement shall
control.
18. INDEMNIFICATION. The Company shall indemnify and hold Executive
harmless to the maximum extent provided under the Company's charter, by-laws and
applicable law and shall enter into an indemnification agreement applicable to
its senior officers.1 The Company shall insure Executive under a policy of
directors and officers liability insurance, during and following termination of
employment, to the same extent as it insures the chief executive officer and
members of the Board.
19. PROFESSIONAL FEES. The Company shall pay Executive's reasonable
professional fees incurred to negotiate and prepare this Agreement, in an amount
not to exceed $7,500 promptly upon receipt of reasonably detailed invoice(s)
supporting the expense incurred.
The Executive hereby acknowledges that the terms of this Agreement are subject
to review from time to time by the Company in order to comply with federal,
state and tax laws and regulations. If it is reasonably necessary, appropriate
or convenient to amend the terms of this Agreement in order to comply with such
laws and regulations or to otherwise avoid or mitigate a material adverse effect
to the Company or the Executive under applicable tax laws and regulations, the
Company and Executive will negotiate in good faith to amend this Agreement so
long as the economic benefit or obligations under the Agreement will be
substantially similar.
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THE PARTIES ACKNOWLEDGE BY SIGNING BELOW THAT THEY HAVE READ AND UNDERSTAND THE
ABOVE AND INTEND TO BE BOUND THEREBY AS OF THE DATE FIRST WRITTEN ABOVE:
MERISANT COMPANY
/S/ XXXXXXX X. XXXXXXXXX BY: /S/ XXXX X. BLOCK
------------------------------ -------------------------------------
XXXXXXX X. XXXXXXXXX XXXX X. BLOCK
PRESIDENT AND CHIEF EXECUTIVE OFFICER
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MERISANT
EXHIBIT A
AGREEMENT
In consideration of the compensation and other benefits of my employment and
continued employment by Merisant Company or one of its Subsidiaries and of other
valuable consideration, I agree with Merisant as follows:
I. EMPLOYMENT BY MERISANT
As used herein, "Merisant" means Merisant Company or one of its Subsidiaries,
whichever is my employer. The term "Subsidiary" means any corporation, joint
venture or other business organization in which Merisant Company now or
hereafter, directly or indirectly, owns or controls more than a fifty percent
(50%) equity interest.
During my Merisant employment I shall devote my working time and best efforts to
the service of Merisant and shall comply with the policies and procedures of
Merisant, including those relating to security and employee conduct, and I shall
not engage in any planning or other business or technical activity, competitive
with or in conflict with the business interests of Merisant Company or any
Subsidiary.
II. CONFIDENTIAL INFORMATION
As used herein, "Confidential Information" means all technical and business
information of Merisant Company and its Subsidiaries, whether patentable or not,
which is of a confidential, trade secret and/or proprietary character and which
is either developed by me (alone or with others) or to which I have access
during my employment. "Confidential Information" shall also include results
derived from confidential evaluations of, and the confidential use or non-use by
Merisant Company or any Subsidiary of, technical or business information in the
public domain.
I shall use my best efforts and diligence both during and after my Merisant
employment to protect the confidential, trade secret and/or proprietary
character of all Confidential Information. I shall not, directly or indirectly,
use (for myself or another) or disclose any Confidential Information for so long
as it shall remain proprietary or protectible as confidential or trade secret
information, except as may be necessary for the performance of my Merisant
duties and as may be required by courts, administrative or regulatory agencies.
I shall deliver promptly to Merisant, at the termination of my employment, or at
any other time at Merisant's request, without retaining any copies, all
documents and other material in my possession relating, directly or indirectly,
to any Confidential Information.
Each of my obligations in this section shall also apply to the confidential,
trade secret and proprietary information learned or acquired by me during my
employment from others with whom Merisant Company or any Subsidiary has a
business relationship.
I understand that I am not to disclose to Merisant Company or any Subsidiary, or
use for its benefit, any of the confidential, trade secret or proprietary
information of others, including any of my former employers.
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III. COMPETITIVE ACTIVITY
I shall not, directly or indirectly (whether as owner, partner, consultant,
employee or otherwise), at any time during the period of two years following
termination for any reason of my final employment with Merisant Company or any
Subsidiary, engage in or contribute my knowledge to any work or activity that
involves a (a) tabletop sweetener product; or (b) any product or process, which
is then competitive with a product or process (i) from which the Subsidiary,
division or region of Merisant for which I devoted the majority of my time then
derives a material portion of its earnings and (ii) about which I accessed
Confidential Information while at Merisant Company or any Subsidiary at any time
during the period of five years immediately prior to such termination
("Competitive Work"). Following the expiration of said two year period, I shall
continue to be obligated under the "Confidential Information" section of this
Agreement not to use or to disclose Confidential Information so long as it shall
remain proprietary or protectible as confidential or trade secret information.
During my employment by Merisant and for a period of two years thereafter, I
shall not, directly or indirectly, induce or attempt to induce a salaried
employee of Merisant Company or any of its Subsidiaries to accept employment or
affiliation involving Competitive Work with another firm or corporation of which
I am an employee, owner, partner, shareholder, or consultant.
If, at any time of enforcement of this Agreement, a court or an arbitrator holds
that the terms stated in this "Competitive Activity" section are unreasonable
under circumstances then existing, the parties hereto agree that the maximum
period or scope reasonable under such circumstances shall be substituted for the
stated period or scope and that the court shall be allowed to revise the
restrictions contained herein to cover the maximum period and/or scope permitted
by law.
IV. IDEAS, INVENTIONS OR DISCOVERIES
I shall promptly disclose to Merisant all ideas, inventions or discoveries,
whether or not patentable, which I may conceive or make, alone or with others,
during my employment, whether or not during working hours, and which directly or
indirectly
(a) relate to matters within the scope of my duties or field of
responsibility during my employment by Merisant Company or its
Subsidiaries; or
(b) are based on my knowledge of the actual or anticipated business or
interests of Merisant Company or its Subsidiaries; or
(c) are aided by the use of time, materials, facilities or information of
Merisant Company or its Subsidiaries.
I hereby assign to Merisant, or its nominee, without further compensation, all
of my right, title and interest in all such ideas, inventions or discoveries in
all countries of the world.
Without further compensation but at Merisant's expense, I shall give all
testimony and execute all patent applications, rights of priority, assignments
and other documents and in general do all lawful things requested of me by
Merisant to enable Merisant to obtain, maintain, and enforce protection of such
ideas, inventions
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and discoveries for and in the name of Merisant, or its nominee, in all
countries of the world. However, should I render any of these services following
termination of my employment, I shall be compensated at a rate per hour equal to
the base salary I received from Merisant at the time of termination and shall be
reimbursed for reasonable out-of-pocket expenses incurred in rendering the
services.
I recognize that ideas, inventions or discoveries of the type described above
conceived or made by me, alone or with others, within one year after termination
of my employment are likely to have been conceived in significant part while
employed by Merisant. Accordingly, I agree that such ideas, inventions or
discoveries shall be presumed to have been conceived during my Merisant
employment unless and until I have established the contrary by clear and
convincing evidence.
V. MISCELLANEOUS
This Agreement shall be construed under the laws of the State of Illinois and
shall be binding upon and enforceable against my heirs and legal representatives
and the assignees of any idea, invention or discovery conceived or made by me.
To the extent this Agreement is legally enforceable, it shall supersede all
previous agreements covering this subject matter between me and Merisant Company
or its Subsidiaries, but shall not relieve me or such other party from any
obligations incurred under any such previous agreement while in force; provided,
in the event of any inconsistency between this Agreement and my Employment
Agreement with Merisant Company, dated as of July 18, 2005 ("Employment
Agreement"), my Employment Agreement shall control.
If any provision of this Agreement is held invalid in any respect, it shall not
affect the validity of any other provision of this Agreement. If any provision
of this Agreement is held to be unreasonable as to time, scope or otherwise, it
shall be construed by limiting and reducing it so as to be enforceable under
then applicable law.
If I am transferred from the company which was my employer at the time I signed
this Agreement to the employment of another company that is a Subsidiary of
Merisant Company or is Merisant Company itself, and I have not entered into a
superseding agreement with my new employer covering the subject matter of this
Agreement, then this Agreement shall continue in effect and my new employer
shall be termed "Merisant" for all purposes hereunder and shall have the right
to enforce this Agreement as my employer. In the event of any subsequent
transfer, my new employer shall succeed to all rights under this Agreement so
long as such employer shall be Merisant Company or one of its Subsidiaries and
so long as this Agreement has not been superseded.
Nothing in this Agreement alters the at-will employment relationship between
Merisant and its employees, subject to the terms and conditions of my Employment
Agreement.
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EXHIBIT B
MERISANT WORLDWIDE, INC.
SUMMARY OF 2005 SHARE APPRECIATION RIGHTS PLAN
KEY TERMS
The 2005 Share Appreciation Rights Plan (the "Plan") will offer certain
employees an opportunity to share in any increase in the equity value of
Merisant Worldwide, Inc. and its consolidated subsidiaries (for the purpose of
this Exhibit B, the "Company") and thereby motivate these employees to increase
the profitability and growth of the Company as well as attract and retain highly
qualified individuals as employees. The Plan will contain the following key
terms.
1. Participants will receive payments under the Plan upon a change of
control of the Company pursuant to which the stockholders of the
Company receive cash or marketable securities in exchange for their
shares in a single transaction or series of related transactions or
upon the sale of all or substantially all of the assets of the
Company.
2. Payments under the Plan will be measured based upon the residual
equity value of the Company after the repayment of all indebtedness of
the Company then outstanding PLUS the residual equity value of any
entity controlled by affiliates of the Company that is sold in
connection with the sale of the Company after the repayment of all
indebtedness then outstanding of such entity and a compounded annual
rate of return on investment to be determined for investors in such
entity to be determined (together, the "Residual Equity Value").
3. The amount of the funds available to be paid out to the Plan
participants will increase as a percentage of the Residual Equity
Value as the Residual Equity Value increases. These amounts will
equal: 8% of any Residual Equity Value between $0 and $100 million;
10% of any Residual Equity Value greater than $100 million but less
than $200 million; and 12% of any Residual Equity Value greater than
$200 million.
4. Individual awards vest upon the triggering event and will represent a
percentage of the aggregate funds available to be paid out to all Plan
participants. Awards granted under the Plan will be forfeited upon the
voluntary or involuntary termination of employment of the participant
with the Company with or without cause.
5. The final terms of the Plan will be subject to the recommendation of
the Compensation Committee of the Board of Directors and the approval
of the Board of Directors.
6. The Board of Directors approved this Summary on June 8, 2005 and the
final terms of the Plan will be adopted as soon as may be practicable
thereafter.
In the event of any inconsistency between this Summary and my
Employment Agreement with Merisant Company, dated as of July 18, 2005,
such Employment Agreement shall control.
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EXHIBIT C
Competitive Enterprises
- Xxxxxxx & Xxxxxxx, XxXxxx Consumer Products and affiliates
- Cumberland Packaging, Inc.
- Ajinomoto Co., Inc.
- Hermesetas
- Xxxxxxx Xxxxxx Company
- Xxxx Xxx Corporation
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