EXHIBIT 10.28
CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE
This Confidential Separation Agreement and General Release
("Agreement") is entered into by and among Merisant Company, Inc., a Delaware
corporation ("Merisant"), Merisant US, Inc., a Delaware corporation and
wholly-owned subsidiary of Merisant ("Merisant US"), Merisant Worldwide, Inc., a
Delaware corporation and the parent of Merisant ("Worldwide") (Merisant,
Merisant US and Worldwide collectively referred to herein as the "Company") and
Xxxxxx Xxxxxxx ("Xxxxxxx").
WHEREAS, Xxxxxxx and the Company desire to enter into this Agreement
to set forth the terms of Xxxxxxx'x resignation of employment (if any) from
Merisant, Merisant US and Worldwide and a release of claims and certain other
matters related thereto; and
WHEREAS, Xxxxxxx and Merisant currently are parties to that certain
Agreement dated January 30, 2004 (hereinafter referred to as the
"Confidentiality Agreement"), a true and correct copy of which is attached as
Exhibit A hereto, and Xxxxxxx and Worldwide are parties to an Indemnification
Agreement dated June 21, 2004 (hereinafter referred to as the "Indemnification
Agreement"), a true and correct copy of which is attached as Exhibit B hereto.
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein and for other good and valuable consideration, the sufficiency
and receipt of which are hereby acknowledged, the parties agree as follows:
1. RESIGNATION. Xxxxxxx hereby voluntarily resigns from his
employment (if any) with Merisant, Merisant US and Worldwide and from any and
all subsidiaries and other affiliates thereof (if any), which resignation shall
be effective at the close of business on May 31, 2005 (such date referred to
herein as the "Separation Date", unless the Separation Date is accelerated
pursuant to Section 3 below), and hereby voluntarily resigns from any and all
officer positions with Merisant, Merisant US and Worldwide and from any and all
subsidiaries and other affiliates thereof (if any) effective upon the date that
he signs this Agreement. The Company hereby accepts all such resignations by
Xxxxxxx.
2. TRANSITION PERIOD. Subject to the terms of this Agreement, and
provided that Xxxxxxx signs and returns this Agreement to the Company within 21
days of his receipt thereof, complies with this Agreement's terms and does not
revoke it in accordance with Section 18 below, and provided further that Xxxxxxx
also shall have met the performance and cooperation standards described in
Section 2(a) below during the period from his receipt of this Agreement to his
execution thereof:
(a) Xxxxxxx shall perform such duties and responsibilities
as in-house legal counsel on a full-time basis as the Company directs from time
to time from the date that Xxxxxxx signs this Agreement through the Separation
Date (such period referred to as the "Transition Period"), and also will assist
and cooperate with the Company during the Transition Period in transitioning his
duties and responsibilities to such person or persons as are designated by the
Company. Xxxxxxx shall perform all such duties and responsibilities diligently
and faithfully in the best interests of the Company. Notwithstanding the
foregoing, during the Transition Period, Xxxxxxx may spend reasonable time to
conduct a search for other employment
and, upon mutual agreement between Xxxxxxx and the Company, may use the
outplacement services described in Section 5(c) below once he becomes eligible
for such services pursuant to this Agreement, provided that such search and use
shall not unreasonably interfere with Xxxxxxx'x duties and obligations to the
Company during the Transition Period. Xxxxxxx acknowledges and agrees that he
shall not earn or accrue any vacation time for any period after he signs this
Agreement.
(b) During the Transition Period: (i) the Company shall
continue to pay Xxxxxxx his pro-rated base salary at his current annualized rate
(without increase) of $220,000.00, less required and authorized withholdings and
deductions, in gross installments of $9,166.66 in accordance with the Company's
normal payroll schedule; and (ii) Xxxxxxx will continue to participate in any
available Company employee health benefit plans and policies (but not any bonus,
incentive, severance or equity-based compensation plans or policies) in which he
currently participates, subject to the terms and conditions of such plans and
policies, which plans, policies, terms and conditions the Company may amend,
modify, suspend or terminate at any time for any or no reason in its discretion.
3. ACCELERATED TERMINATION FOR CAUSE. Notwithstanding Sections 1
and 2 above:
(a) in the event that Xxxxxxx at any time commits any
act(s) or omission(s) that constitute(s) "Cause" (as defined below), the Company
may in its discretion accelerate Xxxxxxx'x Separation Date to a date prior to
May 31, 2005, as chosen by the Company in its discretion. In the event of any
such accelerated termination, Xxxxxxx shall not be entitled to or receive any
amounts pursuant to Sections 2 or 5 of this Agreement or otherwise, other than:
(y) any earned and unpaid pro-rated base salary (if any) at his current
annualized rate (less required and authorized withholdings and deductions) for
services rendered as an employee through the Separation Date (as accelerated, if
at all); and (z) any amounts payable pursuant to Section 4 below.
(b) "Cause," as used herein, means any of the following
act(s) or omission(s) by Xxxxxxx, directly or indirectly, as determined by the
Company in good faith: (a) embezzlement, misappropriation of corporate funds, or
commission of any other material act of dishonesty; (b) commission of any
felony, or any misdemeanor involving moral turpitude, or entry of a plea of
guilty or nolo contendere to any such felony or misdemeanor; (c) engaging in any
activity that Xxxxxxx knows or reasonably should know will or could harm the
business or reputation of the Company or any of its affiliates; (d) refusal to
perform or disregard of any of his duties and responsibilities, or failure to
adhere to the Company's material corporate codes, policies or procedures (as in
effect or amended from time to time in the Company's discretion), including
without limitation, the Company's Code of Business Conduct and Ethics; or (e)
material breach or threatened breach of this Agreement, or breach or threatened
breach of any provision of the Confidentiality Agreement.
4. EARNED VACATION; EMPLOYEE BENEFITS. Xxxxxxx shall be paid no
later than the next regular Company payroll date after the Separation Date (as
accelerated, if at all) for any earned and unused vacation as of the Separation
Date in accordance with applicable Company policies and practices and applicable
law. As of the date of this Agreement, the gross vacation
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pay amount to be paid is $11,076.39. Subject to Sections 5 and 6 of this
Agreement, Xxxxxxx'x participation, if any, in any employee benefit plans and
policies of the Company after the Separation Date will be determined in
accordance with the terms and conditions of such plans and policies, which
plans, policies, terms and conditions the Company may amend, modify, suspend or
terminate in accordance with the amendment provision(s) of such plans and
policies or applicable law.
5. SEVERANCE BENEFITS. Subject to the terms of this Agreement, and
provided that Xxxxxxx signs and returns this Agreement within 21 days of his
receipt thereof, does not revoke this Agreement pursuant to Section 18 below,
and complies with the terms of this Agreement (including without limitation,
Sections 2(a) and 11), and provided that he also has met the performance and
cooperation standards described in Section 2(a) during the period from his
receipt of this Agreement until his execution thereof, the Company shall:
(a) pay Xxxxxxx a special severance benefit in a gross
aggregate amount of $183,333.33, less required and authorized withholdings and
deductions, in twenty (20) equal gross installments of $9,166.66 in accordance
with the Company's normal payroll schedule;
(b) continue to pay the employer portion of Xxxxxxx'x
premiums to continue his then-current coverage as of the Separation Date under
the Company's health and dental plans for three (3) months following the
Separation Date (Xxxxxxx to continue to pay the employee portion at regular
employee rates) under the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended ("COBRA") (provided that Xxxxxxx timely elects such COBRA
coverage in accordance with Company policy and applicable law), after which time
Xxxxxxx'x participation in the Company's health and dental plans shall be
governed solely by COBRA and at Xxxxxxx'x sole expense; and
(c) make executive level outplacement services available to
Xxxxxxx, at the Company's expense, through Xxxxxxx Xxxxxxxxx Xxxxxxx, for a
period of six (6) months following the Separation Date, or such earlier date (if
any) as Xxxxxxx shall secure other employment, provided, however, that upon
mutual agreement of the Company and Xxxxxxx and after Xxxxxxx becomes eligible
for such services under this Agreement, Xxxxxxx may use such services prior to
the Separation Date, in which case the six-month period shall run from the date
on which Xxxxxxx first uses such services.
Subject to the terms of this Agreement, the payments and other benefits set
forth in this Section 5 shall commence following the eighth day after the
Company has received a fully executed copy of this Agreement (provided that
Xxxxxxx has not revoked it). Where applicable, any and all such payments shall
be sent to Xxxxxxx'x last known address on the Company's records or to such
other address as Xxxxxxx shall indicate to the Company in writing. Xxxxxxx
acknowledges and agrees that he would not be entitled to or receive any of the
payments or other benefits set forth in this Section 5 but for his undertakings
in this Agreement. This Agreement is intended to comply with Section 409A of the
Internal Revenue Code of 1986, as amended, and shall be interpreted and
construed accordingly.
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6. CERTAIN ADDITIONAL ACKNOWLEDGMENTS. Xxxxxxx acknowledges and
agrees: (a) that Xxxxxxx had, and has, no stock appreciation right(s), option(s)
or other equity-based interest of any kind with respect to the Company or any of
its affiliates under the Tabletop Holdings, Inc. Stock Appreciation Rights Plan,
dated March 17, 2000, or otherwise; (b) that he has read and is familiar with,
and is not entitled to receive, and shall not receive, any incentive or other
compensation or benefits of any kind under any past or present Company annual
incentive plan, long term incentive plan, supplemental long term incentive plan,
or the Merisant US, Inc. Severance Pay Plan; and (c) that the Confidentiality
Agreement shall remain in full force and effect in accordance with its terms and
he shall comply therewith. The parties reconfirm their obligations under the
Indemnification Agreement. The parties acknowledge and agree that this Agreement
does not create, expand, reduce, limit or otherwise modify any indemnification
right or obligation under the Indemnification Agreement. Xxxxxxx acknowledges
and agrees that competitive entities with respect to which the provisions of the
Confidentiality Agreement apply (including but not limited to the "Competitive
Activity" section of the Confidentiality Agreement) include, but are not limited
to, Xxxxxxx & Xxxxxxx, XxXxxx Consumer Products and affiliates, Cumberland
Packaging, Inc., Ajinomoto Co., Inc., Hermesetas, Xxxxxxx Xxxxxx Company, and
Xxxx Xxx Corporation, provided that nothing herein shall prevent Xxxxxxx from
complying with any applicable attorney professional responsibility rules and
this provision shall be interpreted and construed accordingly.
7. COMPREHENSIVE RELEASE AND WAIVER OF CLAIMS.
(a) Xxxxxxx, and anyone claiming through him or on his
behalf, agree not to xxx and further agree to release the Company and the other
Released Parties (as defined in Section 9 below) with respect to any and all
claims, whether currently known or unknown, that Xxxxxxx now has, has ever had,
or may ever have against any of the Released Parties arising from or related to
any agreement, act, omission, or thing occurring or existing at any time prior
to or on the date on which Xxxxxxx signs this Agreement. Without limiting the
generality of the foregoing, the claims released by Xxxxxxx hereunder include,
but are not limited to: (i) all claims for or related in any way to Xxxxxxx'x
employment, compensation, other terms and conditions of employment, or
termination from employment with the Company, including without limitation,
claims for payment under any and all Company incentive plans and claims for
severance pay and any other severance benefits under the Merisant US, Inc.
Severance Pay Plan; (ii) all claims that were or could have been asserted by
Xxxxxxx or on his behalf (x) in any federal, state, or local court, commission,
or agency, (y) under any common law theory, or (z) under any employment,
contract, tort, federal, state, or local law, regulation, ordinance,
constitution, or executive order; and (iii) all claims that were or could have
been asserted by Xxxxxxx or on his behalf arising under any of the following
laws, as amended from time to time: the Age Discrimination in Employment Act,
Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act,
the Employee Retirement Income Security Act, the Family and Medical Leave Act of
1993, the Illinois Human Rights Act, and the Chicago and Xxxx County Human
Rights Ordinances. Notwithstanding the foregoing, this release does not include
or otherwise affect any claims by Xxxxxxx for vested benefits (if any) under any
Company health, dental, vision or 401(k) plan.
(b) Merisant, Merisant US and Worldwide, on behalf of
themselves, their past and present parents, divisions, subsidiaries,
partnerships, affiliates, joint ventures, joint
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venturers, and other related entities, any anyone claiming through any of them
or on their behalves (collectively, "Company Releasing Parties"), agree not to
xxx and further agree to release Xxxxxxx and his successors, assigns, spouses,
descendants, heirs, executors and attorneys (collectively, "Xxxxxxx Released
Parties") with respect to any and all claims arising out of Xxxxxxx'x employment
or the termination thereof, whether currently known or unknown, that the Company
Releasing Parties now have, have ever had, or may ever have against any of the
Xxxxxxx Released Parties at any time prior to or on the date on which the last
of Merisant, Merisant US and Worldwide signs this Agreement, except that the
Company Releasing Parties shall not release or agree not to xxx Xxxxxxx from or
with respect to any claims arising out of any criminal, intentional or reckless
conduct or other gross misconduct by Xxxxxxx.
8. CERTAIN REPRESENTATIONS AND WARRANTIES. Xxxxxxx represents and
warrants that: (a) he has not filed or initiated any legal, equitable,
administrative, or other proceeding(s) of any kind against any of the Released
Parties; (b) no such proceeding(s) have been initiated against any of the
Released Parties on his behalf; (c) he is the sole owner of the actual or
alleged claims, demands, rights, causes of action, and other matters that are
released in Section 7(a) above; (d) the same have not been transferred or
assigned or caused to be transferred or assigned to any other person, firm,
corporation or other legal entity; and (e) he has the full right and power to
grant, execute, and deliver the releases, undertakings, and agreements contained
in this Agreement. The Company represents and warrants that: (a) the Company
Releasing Parties have not filed or initiated any legal, equitable,
administrative, or other proceeding(s) of any kind against any of the Xxxxxxx
Released Parties; (b) no such proceeding(s) have been initiated against any of
the Xxxxxxx Released Parties on their behalf; (c) the Company Releasing Parties
are the sole owner of the actual or alleged claims, demands, rights, causes of
action, and other matters that are released in Section 7(b) above; (d) the same
have not been transferred or assigned or caused to be transferred or assigned to
any other person, firm, corporation or other legal entity; and (e) the Company
Releasing Parties have the full right and power to grant, execute, and deliver
the releases, undertakings, and agreements contained in this Agreement.
9. RELEASED PARTIES. The term "Released Parties" as used in this
Agreement includes: (a) the Company and each of its past, present, and future
parents, divisions, subsidiaries, partnerships, affiliates, joint ventures,
joint venturers and other related entities (whether or not such entities are
wholly owned), including without limitation Merisant Foreign Holdings; (b) the
past, present, and future owners, trustees, fiduciaries, administrators,
shareholders, members, directors, officers, partners, associates, agents,
representatives, employees, and attorneys of each entity listed in subpart (a)
of this paragraph; and (c) the predecessors, successors, and assigns of each
entity and person listed in subparts (a) and (b) of this paragraph.
10. COMPLETE SETTLEMENT; NO FURTHER PAYMENTS OR RECOVERY. The
consideration offered herein is accepted by Xxxxxxx as being in full accord,
satisfaction, compromise and settlement of any and all claims and potential
claims, and Xxxxxxx expressly agrees that he is not entitled to and shall not
receive any further payments, benefits, or other compensation or recovery of any
kind from the Company or any of the other Released Parties, provided that
nothing in this Section shall affect any claims by Xxxxxxx for vested benefits
(if any) under any Company health, dental, vision or 401(k) plan. Xxxxxxx
further agrees that in the event of any further proceedings whatsoever based
upon any matter released herein, the
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Company and each of the other Released Parties shall have no further monetary or
other obligation of any kind to Xxxxxxx, including without limitation any
obligation for any costs, expenses or attorneys' fees incurred by or on behalf
of Xxxxxxx.
11. COOPERATION. Xxxxxxx agrees that he shall cooperate fully with
the Company and any of the other Released Parties: (a) in investigating,
defending, prosecuting, litigating, filing, initiating or asserting any actual
or potential claims or investigations (including without limitation in
connection with any legal, equitable, administrative, or other proceedings) that
may be made by or against the Company or any of the other Released Parties, to
the extent that such claims or investigations may relate to or arise out of
Xxxxxxx'x employment with the Company or his activities relating to or on behalf
of any of the Released Parties, including without limitation in MERISANT COMPANY
X. XXXXXX NUTRITIONALS LLC AND XXXXXX-PPC, INC., Civil Action No. 04-CV-5504 in
the United States District Court for the Eastern District of Pennsylvania; and
(b) in consulting with and providing assistance to the Company and the other
Released Parties on issues and matters that may relate to or arise out of
Xxxxxxx'x acts, duties and responsibilities during his employment with the
Company. Xxxxxxx'x obligation to cooperate hereunder shall include, without
limitation, meeting with such persons at such times and in such places as the
Company and the other Released Parties may reasonably require, and giving
truthful evidence and truthful testimony and executing and delivering to the
Company and any of the other Released Parties any papers requested by any of
them (including without limitation joint defense agreements and truthful
affidavits). Xxxxxxx shall be reimbursed for reasonable out-of-pocket expenses
incurred by Xxxxxxx in rendering cooperation pursuant to this Section.
12. RETURN OF PROPERTY. Without limiting, modifying or otherwise
affecting the Confidentiality Agreement, on or before the Separation Date,
Xxxxxxx shall promptly return to the Company all property of the Company and the
other Released Parties that is within his possession, custody or control.
13. NO FUTURE EMPLOYMENT OR ENGAGEMENT. Xxxxxxx has no present or
future right to employment with the Company or any of the other Released Parties
and shall not apply or seek consideration for any employment, engagement, or
contract with any of them.
14. ETHICAL OBLIGATIONS AND CONFIDENTIALITY. Xxxxxxx acknowledges
and agrees that at all times, he shall be bound by, and shall comply with, any
and all applicable codes, rules and canons of professional conduct and/or
responsibility (as may be amended from time to time) that are applicable to his
prior professional relationship with the Company and any and all of its
affiliates as a lawyer for the Company and any and all of its affiliates. Except
as required by law or to enforce the obligations established by this Agreement,
Xxxxxxx agrees that he will not disclose the terms of this Agreement to any
third parties with the exception of his accountants, attorneys, and spouse, and
shall ensure that each such person maintains any such disclosed information in
the strictest confidence and does not disclose any such information to any other
person. Xxxxxxx shall, to the extent practicable, provide the Company and the
other Released Parties with as much advanced notice of any such legally required
disclosure as practicable prior to making any such disclosure. Xxxxxxx shall
direct all third-parties with inquiries concerning his employment to Xxxx
Xxxxxxx or her successor. In response to such inquiries received by Linsdau or
her successor, the Company will communicate only Xxxxxxx'x
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dates of employment, the positions he held and that the Company would reemploy
Xxxxxxx. The Company agrees that from the date of the execution of this
Agreement forward, it will not disclose the terms of this Agreement to anyone
except as may be required to comply with legal process or to enforce the
obligations established by this Agreement, provided that the Company may
disclose the terms of this Agreement to Company representatives and may disclose
the terms of this Agreement to third parties as is reasonably necessary in the
course of Company business, including without limitation such disclosures as are
permitted pursuant to Section 15 below.
15. NONDISPARAGEMENT. Xxxxxxx shall refrain from all conduct,
verbal or otherwise, that disparages or damages or could disparage or damage the
reputation, goodwill, or standing in the community of the Company or any of the
other Released Parties. The Company's executives and officers shall refrain from
all conduct, verbal or otherwise, that disparages or damages or could disparage
or damage the reputation, goodwill, or standing in the community of Xxxxxxx.
Notwithstanding the foregoing, nothing herein shall prohibit the Company from
making disclosure reasonably required under the federal securities laws and the
rules of the Securities and Exchange Commission ("SEC") promulgated thereunder
and the rules of any stock exchange or national securities market on which
Merisant's, Merisant US's or Worldwide's (or any of their affiliates')
securities are traded, or prohibit Xxxxxxx or authorized representatives of the
Company from giving truthful and non-malicious testimony if properly subpoenaed
or otherwise required to testify under oath. Xxxxxxx acknowledges and agrees
that the Company may file a copy of this Agreement with the SEC and, therefore,
that the terms hereof will be publicly disclosed. Xxxxxxx further acknowledges
and agrees that, to the extent he at any time alleges that a Company executive
or officer has acted in breach of this Section, Xxxxxxx shall have the burden of
proving that any such action was undertaken on behalf of, and is attributable
to, the Company (without in any way limiting any other burden that he may have
under applicable law).
16. INJUNCTIVE RELIEF AND CERTAIN OTHER RELIEF. (a) Without in any
way limiting the Company's or any of the other Released Parties' rights to
pursue any other legal or equitable remedies available to any of them, Xxxxxxx
recognizes and agrees that a breach of any or all of the provisions of Sections
11, 14 and 15 of this Agreement will cause immediate and irreparable harm to the
Company and the other Released Parties for which damages cannot be readily
calculated and for which they are an inadequate remedy. Accordingly, Xxxxxxx
acknowledges and agrees that the Company and the other Released Parties shall be
entitled (without the need to post any bond or other security) to injunctive
relief restraining and enjoining any further actual or threatened breaches by
Xxxxxxx in addition to any other relief that may be available. Xxxxxxx shall
reimburse the Company and the other Released Parties for any and all costs and
expenses (including without limitation attorneys' fees) incurred by any of them
in connection with the enforcement of any of their rights under this Agreement.
(b) Without in any way limiting Xxxxxxx'x right to pursue
any other legal or equitable remedies available to him, the Company recognizes
and agrees that a breach of any or all of the provisions of Sections 14 and 15
of this Agreement will cause immediate and irreparable harm to Xxxxxxx for which
damages cannot be readily calculated and for which they are an inadequate
remedy. Accordingly, the Company acknowledges and agrees that Xxxxxxx shall be
entitled (without the need to post any bond or other security) to injunctive
relief
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restraining and enjoining any further actual or threatened breaches by the
Company in addition to any other relief that may be available.
17. NO ADMISSION. Nothing in this Agreement is intended to be or
shall be construed as an admission by the Company or any of the other Released
Parties that any of them violated any law, interfered with any right, breached
any obligation or otherwise engaged in any improper or illegal conduct with
respect to Xxxxxxx, any of the other Xxxxxxx Released Parties or otherwise.
Nothing in this Agreement is intended to be or shall be construed as an
admission by Xxxxxxx that he violated any law, interfered with any right,
breached any obligation or otherwise engaged in any improper or illegal conduct
with respect to the Company, any of the other Released Parties or otherwise.
Each of the Xxxxxxx Released Parties and each of the Released Parties expressly
deny any such illegal or wrongful conduct.
18. CERTAIN ACKNOWLEDGEMENTS AND RIGHTS OF XXXXXXX. XXXXXXX
ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT: (a) HE HAS READ AND UNDERSTANDS THE
TERMS AND EFFECT OF THIS AGREEMENT; (b) HE RELEASES AND WAIVES CLAIMS UNDER THIS
AGREEMENT KNOWINGLY AND VOLUNTARILY, IN EXCHANGE FOR CONSIDERATION IN ADDITION
TO ANYTHING OF VALUE TO WHICH HE ALREADY IS ENTITLED; (c) HE HEREBY IS AND HAS
BEEN ADVISED OF HIS RIGHT TO HAVE HIS ATTORNEY REVIEW THIS AGREEMENT BEFORE
SIGNING IT; (d) HE HAS TWENTY-ONE (21) DAYS IN WHICH TO CONSIDER WHETHER TO
EXECUTE THIS AGREEMENT; (e) WITHIN SEVEN (7) DAYS FROM THE DATE ON WHICH HE
SIGNS THIS AGREEMENT, HE MAY, AT HIS SOLE OPTION, REVOKE THIS AGREEMENT UPON
WRITTEN NOTICE TO XXXX XXXXXXX, MERISANT COMPANY, INC., 00 XXXXX XXXXXXXXX,
XXXXX 000, XXXXXXX, XXXXXXXX 00000, AND (f) THE AGREEMENT WILL NOT BECOME
EFFECTIVE UNTIL THIS SEVEN-DAY REVOCATION PERIOD HAS EXPIRED WITHOUT ANY
REVOCATION. IF XXXXXXX REVOKES THIS AGREEMENT WITHIN THIS SEVEN-DAY PERIOD, IT
SHALL BE NULL AND VOID.
19. ASSIGNMENT. This Agreement may be assigned or transferred to,
and shall be binding upon and shall inure to the benefit of: (a) the Company,
(b) any of the other Released Parties, and (c) any person or entity that at any
time (whether by merger, purchase or otherwise) acquires all or substantially
all of the assets, ownership interests or business of the Company or any of the
other Released Parties. Xxxxxxx may not assign any of his rights or obligations
under this Agreement.
20. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding of the parties hereto with regard to the matters described
herein and supersedes any and all prior and/or contemporaneous agreements and
understandings, oral or written, between said parties regarding such matters,
except that nothing herein shall limit, modify or otherwise affect the
Confidentiality Agreement or the Indemnification Agreement.
21. GOVERNING LAW; AMENDMENT; WAIVER; HEADINGS. This Agreement
shall be construed and interpreted in accordance with the internal laws of the
State of Illinois. The parties agree that this Agreement may be modified only in
writing signed by all parties, and that any party's failure to enforce this
Agreement in the event of one or more events which violate
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this Agreement shall not constitute a waiver of any right to enforce this
Agreement against any subsequent violations. The headings used in this Agreement
are for convenience only and are not to be used in interpreting or construing
this Agreement.
22. SEVERABILITY. Whenever possible, each provision of this
Agreement shall 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.
23. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
THE PARTIES STATE THAT THEY HAVE READ AND UNDERSTAND THE FOREGOING AND
THAT THEY INTEND TO BE BOUND THERETO.
XXXXXX XXXXXXX MERISANT COMPANY, INC.
/s/ XXXXXX X. XXXXXXX BY: XXXX X. XXXXXXX
-------------------------------------- ---------------------------------
DATE: MAY 4, 2005 TITLE: EXECUTIVE VP HUMAN RESOURCES
-------------------------------- ------------------------------
DATE: MAY 4, 2005
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MERISANT US, INC. MERISANT WORLDWIDE, INC.
BY: XXXX X. XXXXXXX BY: XXXX X. XXXXXXX
---------------------------------- ---------------------------------
TITLE: EXECUTIVE VP HUMAN RESOURCES TITLE: EXECUTIVE VP HUMAN RESOURCES
------------------------------- ------------------------------
DATE: MAY 4, 2005 DATE: MAY 4, 2005
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