EXHIBIT 10.22
SEPARATION AND RELEASE AGREEMENT
THIS SEPARATION AND RELEASE AGREEMENT is entered into this 5th day of
November by and among Xxxxxxx X. Xxxxx ("EMPLOYEE"), Merisant Company, a
Delaware corporation ("MERISANT") and Merisant Worldwide, Inc., a Delaware
corporation and the parent of Merisant ("MWI").
WHEREAS, Merisant and Employee are parties to that certain Employment
Agreement dated as of August 26, 2004 (the "EMPLOYMENT AGREEMENT").
WHEREAS, the parties desire to terminate the Employment Agreement and
provide for the satisfaction of their respective remaining obligations
thereunder, upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, conditions and premises contained herein, the parties agree as
follows:
1. WAIVER AND RELEASE:
A. Except for breaches of this Agreement, Employee and each of his
past, present and future spouses, family, relatives, successors, heirs,
executors, administrators, trustees, agents, representatives, affiliates and
assigns and each and every person or entity that purports to assert rights or
claims through him or on his behalf (collectively, the "EMPLOYEE RELEASING
PARTIES"), individually and collectively, hereby fully, finally and forever
waive and unconditionally release, acquit and discharge each of MWI, Merisant
and their respective past, present and future affiliates, employee benefit plans
and programs and other related entities (whether or not wholly owned) and the
past, present and future officers, directors, employees, agents, shareholders,
members, trustees, fiduciaries, administrators, attorneys and representatives of
each of them, and any other person or entity in privity with any of them
(collectively, the "MERISANT RELEASED PARTIES") from, and covenant and agree not
to xxx any of the Merisant Released Parties with regard to any and all claims,
whether currently known or unknown, which Employee now has, ever has had or may
ever have against any of the Merisant Released Parties arising from or related
to:
(i) Employee's employment with MWI, Merisant and their direct
and indirect subsidiaries or the termination thereof, including but not
limited to claims of wrongful discharge; breach of contract; employment
discrimination under the Civil Rights Act of 1866, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination
in Employment Act, the Americans with Disabilities Act, the
Rehabilitation Act of 1973, the Illinois Human Rights Act, the Chicago
Human Rights Ordinance, and/or the Xxxx County Human Rights Ordinance, or
any other statutory or common law causes of action;
(ii) except as expressly contemplated hereby, the Employment
Agreement, including any claim for any payment pursuant to Section 6 or
11 thereof; and
(iii) except as expressly contemplated hereby, any employee
benefit, severance, incentive compensation or other employee plan of MWI,
Merisant or any of their direct or indirect subsidiaries.
B. Notwithstanding the generality of the foregoing, Employee does
not waive and/or release any rights that he may have to benefits under the group
health insurance, dental insurance, vision insurance, long-term disability
insurance and life insurance plans (the "PLANS") to which Employee may be
entitled as a result of his employment by MWI, Merisant or their direct and
indirect subsidiaries through the Separation Date.
C. Except for breaches of this Agreement, each of MWI and Merisant
hereby fully, finally and forever waives and unconditionally releases, acquits
and discharges Employee from, and covenants and agrees not to xxx Employee with
regard to any and all claims which either of them now has, ever has had or may
ever have against Employee arising from or related to Employee's employment by
MWI, Merisant or their direct and indirect subsidiaries.
D. Employee, MWI and Merisant represent and warrant to each other
that he/it has the full right and power to grant, execute, and deliver the
releases, undertakings and agreements contained in this Agreement.
2. EMPLOYEE'S SEPARATION DATE: Employee's employment with MWI,
Merisant and their direct and indirect subsidiaries terminated effective
November 5, 2004 (the "Separation Date") for all purposes. Effective as of such
date, Employee hereby resigns as an officer and as a member of the Board of
Directors or similar governing body of MWI, Merisant and any of their direct and
indirect subsidiaries of which he is an officer or Board member.
3. SEPARATION PAYMENTS:
A. Promptly after the date hereof, Merisant shall pay to Employee
his Accrued Benefits (as defined in the Employment Agreement) described in
clauses (i) - (iv), and Employee shall be entitled to his Accrued Benefits
described in clause (vi) and his vested pension benefits described in clause
(v), of Section 6(a) of the Employment Agreement.
B. Merisant shall pay to Employee $976,000, (i) $52,000 of which
shall be paid in two equal monthly installments of $26,000, to be paid on
November 15, 2004 and December 15, 2004, (ii) $308,000 of which shall be paid to
Employee on January 2, 2005 and the remainder of which shall be paid in 23
monthly installments of $26,782.61 each beginning on February 15, 2004.
C. Merisant shall reimburse Employee for senior executive level
outplacement services for a period of twelve (12) months from the Separation
Date provided by an outplacement firm selected by the Employee and approved by
Merisant (such approval not to be unreasonably withheld); PROVIDED, however,
that in no event shall Merisant be required to reimburse Employee for amounts in
excess of $4,000 per month for such services, any such reimbursement shall be
made only after receipt of invoices for such services from the provider thereof,
and, in the event Employee becomes reemployed with another employer, Employee
shall
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no longer be entitled to such reimbursement. Notwithstanding the preceding, if
the applicable outplacement service provider requires payment of its fees in a
lump sum or otherwise in excess of $4,000 in any month, Employee may request
that the reimbursement schedule be accelerated, which request Merisant may grant
in its reasonable discretion.
4. INCENTIVE PLANS:
A. Employee hereby acknowledges and agrees that he shall have no
rights under or interests in any award or grant under (i) the Annual Incentive
Plan or any other annual bonus plan of MWI or its subsidiaries or (ii) the 2004
IDS Incentive Plan or any other long-term incentive plan of MWI or its
subsidiaries, except as set forth in paragraph B below.
B. The stock appreciation rights granted to Employee under the MWI
Stock Appreciation Rights Plan and Employee's award under the Merisant Key
Executive Performance & Retention Plan shall be fully vested, subject to the
terms and conditions of such plan. MWI hereby waives any right to modify, cancel
or defer any payment of Employee's Stock Appreciation Rights which modification,
cancellation or deferral adversely impacts Employee in a manner that is
different from that in which it impacts all other persons who are holders of
Stock Appreciation Rights under the MWI Stock Appreciation Rights Plan at the
time of such modification, cancellation or deferral.
5. BENEFIT CONTINUATION: Employee may elect to continue his Plans
with respect to Employee and his dependents for the greater of (i) the period
provided pursuant to the terms of the plan and (ii) if the coverage or insurance
is subject to the Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA"), the COBRA continuation period. In any case, for the 18-month period
immediately following the Separation Date (and only for such period), the costs
of such continuation shall be shared by Merisant and Employee in the same
proportion as such costs were shared immediately prior to the Separation Date.
Notwithstanding the foregoing, in the event Employee becomes reemployed with
another employer and becomes eligible to receive any of the benefits under the
employee benefit plans referred to in the preceding sentence from such employer,
Employee and Employee's dependent's shall no longer be entitled to continued
participation in the applicable employee benefits plan.
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6. DIRECTORS AND OFFICERS LIABILITY INSURANCE; INDEMNIFICATION:
Merisant agrees that, notwithstanding the termination of Employee's employment
with Merisant, Merisant shall, for at least 3 years after the Separation Date,
use all reasonable efforts to have Employee included as a named insured or
otherwise covered for actions or failure to act by Employee in his capacity as a
director or officer of Merisant to at least the same extent as other executive
officers or directors, as the case may be, of Merisant under any directors or
officers liability insurance policies maintained by Merisant; provided that the
additional cost of providing coverage with a retroactive date including
Employee's period of service or with an extended reporting period or a
combination of both does not materially increase the cost of Merisant's
directors and officers insurance. Merisant agrees that it will not alter the
indemnification provisions in the Certificate or By-laws so as to give Employee
less protection thereunder with respect to periods during which Employee served
Merisant as an executive officer or other employee as is afforded other
executive officers or peer employees, as the case may be, with respect to
periods during which they serve Merisant.
7. OTHER PAYMENTS OR BENEFITS: The parties understand and agree that
Employee is entitled to no payments or benefits of any kind, other than those
set forth above.
8. WITHHOLDING TAXES: Merisant may withhold from all payments due to
Employee or to be paid on behalf of Employee hereunder all taxes which, by
applicable federal, state, local or other law, Merisant is required to withhold
therefrom.
9. NON-DISPARAGEMENT: Employee, MWI and Merisant hereby agree that
they shall not, at any time, publicly denigrate, ridicule or intentionally
criticize each other including, without limitation, by way of news interviews or
the expression of personal views, opinions or judgments to the news media;
PROVIDED, HOWEVER, that nothing herein shall prohibit Merisant or MWI from
making disclosure reasonably required under the federal securities laws and the
rules of the Securities and Exchange Commission promulgated thereunder and the
rules of any stock exchange or national securities market on which MWI's or
Merisant's securities are traded. Employee acknowledges that MWI and Merisant
may file a copy of this Agreement with the SEC and, therefore, that the terms
hereof will be publicly disclosed. Notwithstanding the preceding, Employee, MWI
and Merisant agree not to disclose any information with respect to the
negotiation of this Agreement to any person other than Employee's spouse, his
attorney, officers and directors of MWI and Merisant who have a need to know
such information, or as may be otherwise required by law or stock exchange
rules.
10. OTHER UNDERTAKINGS:
A. CONFIDENTIAL INFORMATION. Employee reaffirms and agrees that at
all times during the Period of Employment (as defined in the Employment
Agreement) and thereafter Employee has complied and will comply with the terms
of the Confidentiality Agreement attached as EXHIBIT A hereto.
B. NON-COMPETITION AGREEMENT. Without the consent in writing of
the Board, for the period of 24 months following the date hereof, the Employee
will not permit Employee's
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name to be used by, or engage in, or carry on, directly or indirectly, either
for Employee 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 MWI or any
of its subsidiaries within the geographical areas in which MWI or its
subsidiaries are conducting their business operations or providing services as
of the date of Employee'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 B. MWI shall furnish Employee with an updated
Exhibit B 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, Employee shall not be prohibited from
owning less than five percent (5%) of the equity of any publicly traded entity.
C. NON-SOLICIT. For the period of 24 months following the date
hereof, the Employee shall not, in any manner, directly or indirectly (without
the prior written consent of Merisant): (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 Employee 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 Merisant (or who was an executive of Merisant on the
date hereof or within the prior 12 months) to resign from Merisant 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 Merisant or its subsidiaries to whom Employee provided
services, or for whom Employee transacted business, or whose identity became
known to Employee in connection with Employee's relationship or employment with
Merisant or its subsidiaries, and (ii) "SOLICIT" means any direct or indirect
communication of any kind, regardless of who initiates it, that in any invites,
advises, encourages or requests any person to take or refrain from taking any
action.
D. TRANSITION. In order to provide for an orderly transition,
during the period ending May 2, 2005 Employee shall make himself available from
time to time to the Board of Directors and Chief Executive Officer of Merisant
upon their reasonable request taking into consideration Employee's personal and
business commitments.
11. BREACH OF AGREEMENT: If an arbitrator determines that Employee has
materially breached the terms of this Agreement, Merisant may immediately cease
all payments to Employee under this Agreement, may seek recovery of payments
received by Employee under this Agreement and shall be entitled to 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
Employee's right or ability to dispute that a material breach has occurred. If
an arbitrator determines that Merisant, MWI or their subsidiaries or the
officers, employees and agents of Merisant or MWI have materially breached the
terms of this Agreement, Employee shall be entitled to an injunction,
restraining order or other equitable relief restraining any such material
breach; PROVIDED,
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however, that nothing in the preceding shall prohibit or otherwise impact
Merisant's or MWI's right or ability to dispute that a material breach has
occurred.
12. ACKNOWLEDGMENTS: Employee hereby acknowledges that he is entering
into this Agreement knowingly and voluntarily, and further acknowledges that:
A. this Agreement is written in a manner understood by Employee;
B. this Agreement refers to and specifically waives claims under
the Age Discrimination in Employment Act, as amended, except to the extent that
such claims arise after the date of this Agreement;
C. Employee has received valuable consideration, to which he would
not otherwise have been entitled, in exchange for the waiver and release of
claims included in this Agreement;
D. Employee has been advised by Merisant to consult with an
attorney prior to executing this Agreement;
E. Employee may take up to 21 days from receipt of this Agreement
to consider whether to sign the Agreement; and
F. Employee shall have seven days following execution to revoke
this Agreement (in which case this Agreement shall be null and void and none of
Employee, MWI or Merisant shall any obligations under it), and the Agreement
shall not take effect until those seven days have expired.
13. RESOLUTION OF DISPUTES: Any dispute or controversy arising under
or in connection with Employee's entitlements under this Agreement shall be
settled exclusively by arbitration in Chicago, Illinois by one arbitrator in
accordance with the National Rules For The Resolution of Employment Disputes of
the American Arbitration Association then in effect. Judgment may be entered on
the arbitrators' award in any court having jurisdiction. The expenses of
arbitration and reimbursement of the prevailing party's reasonable legal fees,
costs and expenses shall be as determined by the arbitrator in the arbitrator's
sole discretion.
14. NO MITIGATION: Employee shall be under no obligation to seek other
employment or otherwise mitigate the obligations of MWI or Merisant under this
Agreement. Amounts due to Employee under this Agreement shall not be subject to
offset by MWI or Merisant for any claims MWI or Merisant may have against
Employee, unless otherwise specifically agreed to in writing by Employee.
15. NOTICES:
All notices and other communications required or permitted hereunder
shall be in writing and shall be deemed given when (a) delivered personally or
by overnight courier to the
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following address of the other party hereto (or such other address for such
party as shall be specified by notice given pursuant to this Section) or (b)
sent by facsimile to the following facsimile number of the other party hereto
(or such other facsimile number for such party as shall be specified by notice
given pursuant to this Section), with the confirmatory copy delivered by
overnight courier to the address of such party pursuant to this Section 15:
(a) Employee, to:
Xxxxxxx X. Xxxxx
000 X. Xxxxxxxxx Xxx.
Xxxxxxx, Xxxxxxxx 00000
(b) Company, to:
Sidley Xxxxxx Xxxxx & Xxxx LLP
00 X. Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx
Facsimile No. (000) 000-0000
16. ENTIRE AGREEMENT: The parties agree that this Agreement supersedes
and renders null and void all previous agreements of any kind between the
parties, including the Employment Agreement, except as expressly stated herein.
Notwithstanding the preceding, (i) the Indemnification Agreement existing as of
the date hereof between MWI, on behalf of itself and Merisant, and Employee
shall remain in full force and effect pursuant to its terms and (ii) nothing in
this Agreement shall effect the rights or obligations of Employee under the
Shareholders Agreement of MWI to which Employee is a party. The parties further
agree that no promise or inducement has been offered for this Agreement other
than as set forth herein. In the event of any inconsistency between this
Agreement and any other agreement or document referred to herein, the terms of
this Agreement shall govern. This Agreement may be amended but only by a
subsequent written agreement of the parties. This Agreement shall be binding
upon and shall inure to the benefit of Employee, Employee's heirs, executors,
administrators and beneficiaries, and MWI, Merisant and their respective
successors. In the event of Employee's death prior to the time when all payments
to be made by Merisant to Employee under Sections 3(A) and 3(B) of this
Agreement have been made, such payments shall be made to the Xxxxxxx X. Xxxxx
Trust. This Agreement may not be assigned by one party without the express prior
written consent of the other party.
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17. APPLICABLE LAW: This Agreement is governed by and is to be
construed and enforced in accordance with the laws of the State of Illinois
without reference to rules relating to conflicts of law. If under such law, any
portion of this Agreement is at any time deemed to be in conflict with any
applicable statute, rule, regulation or ordinance, such portion shall be deemed
to be modified or altered to conform thereto or, if that is not possible, to be
omitted from this Agreement; the invalidity of any such portion shall not affect
the force, effect and validity of the remaining portion hereof.
18. 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 invalid,
illegal or unenforceable in any respect under applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision of this
Agreement or the validity, legality or enforceability of such provision in any
other jurisdiction, but this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
19. COUNTERPARTS: This Agreement may be executed in two counterparts,
each of which shall be deemed to be an original and both of which together shall
constitute one and the same instrument.
20. CONSTRUCTION: The parties acknowledge that this Agreement is the
result of arm's-length negotiations between sophisticated parties each afforded
representation by legal counsel. Each and every provision of this Agreement
shall be construed as though both parties participated equally in the drafting
of same, and any rule of construction that a document shall be construed against
the drafting party shall not be applicable to this Agreement.
21. SURVIVAL: The provisions of this Agreement shall survive and
continue in full force and effect in accordance with their respective terms for
as long as is necessary to carry out the full intentions of the parties
hereunder.
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WHEREFORE, the parties have affixed their signatures below.
/s/ Xxxxxxx Xxxxx Merisant Company
----------------------------
Signature of Employee
Xxxxxxx Xxxxx By: /s/ Xxxx X. Block
---------------------------- ------------------------------------
Printed Name of Employee Its: President & COO
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11-5-04 11-5-04
---------------------------- ---------------------------------------
Dated Dated
Merisant Worldwide, Inc.
By: /s/ Xxxx X. Block
------------------------------------
Its: President & COO
-------------------------------
11-5-04
---------------------------------------
Dated
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