Exhibit
10.2


 


EMPLOYMENT AGREEMENT


 


EMPLOYMENT
AGREEMENT, made this 24th day of January, 2006 by and between Merisant Company,
a Delaware corporation (the “Company”), and Jonathan W. Cole (the “Executive”).


 


WHEREAS,
the Executive joined the employment of the Company on April 18, 2005 as
Vice President, General Counsel and Secretary of the Company.


 


WHEREAS,
the Company desires to continue to employ the Executive as Vice President,
General Counsel and Secretary of the Company and certain of its affiliates upon
and subject to the terms and conditions set forth herein, and the Executive
wishes to accept such continued 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.  The Company hereby employs the
Executive, and the Executive agrees to serve as an employee of the Company
during the Period of Employment, as defined in Section 2, in the position
and with the duties set forth in Section 3 and at the Company’s corporate
headquarters.


 


2.                                       Period of Employment.  The
Executive shall be employed by the Company for the period commencing on
April 18, 2005 (the “Effective Date”) and ending on the third anniversary
of the Effective Date.  Commencing on the
third anniversary of the Effective Date and on each anniversary thereof, the
Employment Period shall be automatically extended by one year, unless (x) the
Executive gives the Company at least sixty (60) days’ prior written notice of,
or (y) the Company gives the Executive at least sixty (60) days’ prior written
notice of, in accordance with Section 13 hereof, the intention not to
extend the Period of Employment.  The
Period of Employment may be terminated prior thereto as provided in
Section 7. 


 


3.                                       Position and Duties.  The
Executive shall serve as the Vice President, General Counsel and Secretary of the
Company, Merisant Worldwide, Inc. (“Parent”), Merisant US, Inc. and
Merisant Foreign Holdings I, Inc., reporting to the Chief Executive
Officer of the Company and Parent with duties, responsibilities and authority
as are customarily and ordinarily exercised by executives in similar positions
in similar businesses in the United States or any other duties and
responsibilities of a member of senior management of the Company or Parent,
respectively, consistent with the foregoing which may be assigned to the Executive
by the Chief Executive of the Company. 
Subject to Section 7(e), nothing in the foregoing shall preclude
the Company or Parent from making any organizational and reporting changes it
may deem necessary or appropriate to most effectively operate the business of
the Company, Parent or any of its subsidiaries. 
The Executive shall perform faithfully and loyally and to the best of
the Executive’s ability the duties assigned to the Executive hereunder and
shall devote the Executive’s full business time, attention and efforts to the
affairs of the Company and Parent and its subsidiaries during the period of
Employment, provided,


 


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however,
that 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 materially 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 contained in
Section 8 or 9 hereof.


 


4.                                       Compensation. 



 


(a)                                  Base Salary.  As compensation for the
services of the Executive hereunder, the Company shall pay to the Executive
during the Period of Employment a base salary at the annual rate of two hundred
seventy-five thousand dollars ($275,000) 
commencing on January 1, 2006, less required and authorized
withholding and deductions, payable in accordance with the Company’s regular
payroll practices.  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 Compensation Committee of the
Board of Directors of the Company 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.  In
addition to the base salary referred to in paragraph (a) of this Section,
during the Period of Employment, the Executive shall be eligible to receive an
annual cash bonus in accordance with the terms of the Company’s Annual
Incentive Plan or other annual bonus plan, as applicable, as determined by the
Compensation Committee of the Board of Directors of the Company, in its sole
discretion, with a target bonus opportunity as a percentage of Base Salary no
less than sixty percent (60%) (“Performance Bonus”).  The performance criteria under the Annual
Incentive Plan or other annual bonus plan shall be determined by the Compensation
Committee of the Board of Directors of the Company or Parent, as the case may
be, 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 as set forth in the Company’s offer letter to the
Executive, dated April 1, 2005 (“Guaranteed Bonus”).  If the Executive’s employment is terminated
by either the Executive without Good Reason or the Company with Cause, no
annual cash bonus shall be payable.


 


(c)                                  Executive Compensation Plans.  In
addition to the cash compensation provided for in paragraphs (a) and
(b) of this Section, subject to meeting eligibility provisions and to the
provisions of this Agreement, the Executive shall be entitled to be a
participant in the Company’s executive


 


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compensation
plans generally available to senior officers of the Company, as presently in
effect or as they may be modified by the Company from time to time, actual
participation in such plans to be determined by the Compensation Committee of
the Board of Directors of the Company.


 


5.                                       Relocation and Commuting Expense
Reimbursement.  The Company shall reimburse the Executive for
reasonable commuting expenses for himself and his wife between New York City
and Chicago during the Employment Period. 
During the Employment Period the Company shall reimburse the Executive
for temporary housing in the Chicago metropolitan area until the Executive has
purchased a residence in the Chicago metropolitan area and shall cover the
closing costs of the purchase of such residence up to $5,000.  The Company shall reimburse the Executive for
moving costs up to $10,000.  In addition,
the Executive will be fully grossed-up by the Company for any imputed income
required to be recognized with respect to any amounts reimbursed to the
Executive pursuant to this Section 5 so that the economic effect to the
Executive, after taking into account any tax deductions available to the
Executive, is the same as if this reimbursement was provided to the Executive
on a non-taxable basis.


 


6.                                       Employee Benefits.


 


(a)                          Vacation and Sick Leave.  The
Executive shall be entitled to paid annual vacation and sick leave in
accordance with the Company’s policy for senior officers of the Company.  In any event, the Executive will be entitled
to a minimum of four (4) weeks paid vacation each fiscal year during the
Period of Employment.


 


(b)                         Regular Reimbursed 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 Period of Employment, 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.


 


(c)                          Employee Benefit Plans.  In
addition to the compensation provided for in Section 4 hereof, subject to
meeting eligibility provisions and to the provisions of this Agreement, the
Executive shall be entitled to participate in employee benefit plans,
practices, policies and programs and fringe benefits, on a basis no less
favorable than that provided to other senior officers of the Company.


 


(d)                         Right to Change Plans. 
Subject to Section 7(e), nothing in this Agreement shall be
construed to limit, condition or otherwise encumber the rights of Parent or the
Company to amend, discontinue, substitute or maintain any benefit plan, program
or perquisite.


 


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7.                                       Termination.


 


(a)                          Accrued Benefits.  In
the event of the termination of the Executive’s Period of Employment hereunder
for any reason, the Executive (or his estate or representative, as applicable)
shall be entitled to receive his Accrued Benefits.  For purposes of this Agreement, “Accrued
Benefits” means collectively the following: 
(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 Period of Employment, (v) any vested benefits through the
last day of the Period of Employment in accordance with the Company’s employee
benefit plans or programs and executive compensation plans, and (vi) any
benefit continuation and/or conversion rights in accordance with the Company’s
employee benefit plans or programs.


 


(b)                         Termination on Account of Death or Disability.  If
during the Period of Employment the Executive’s employment terminates on
account of death or Disability, the Period of Employment shall be immediately
terminated and the Executive, or the Executive’s estate or representative, as
applicable, shall be entitled under this Agreement to be paid  within thirty (30) days of such termination,
his Accrued Benefits.


 


(c)                          Termination Without Cause.  The
Company may terminate the Period of Employment without Cause at any time upon
sixty (60) days’ prior written notice to the Executive.  If the Company should terminate the Period of
Employment without Cause prior to a Change in Control or more than twelve (12)
months after a Change in Control, the Executive shall be entitled to his
Accrued Benefits.  In addition, provided
that the Executive executes the mutual release and non-disparagement agreement
referred to in paragraph (i) of this Section, the Executive will be
entitled to the following separation payments:


 


(i)                                     severance compensation equal to the sum of:
(A) continued payment for twelve (12) months of the Executive’s Base
Salary (based on his salary in effect immediately prior to such termination);
and (B) an amount equal to the annual cash bonus at target under the
Company’s Annual Incentive Plan or other annual bonus plan at the rate in
effect immediately prior to termination of employment which shall be paid in
accordance with the Company’s regular payroll practices reduced, if applicable,
by any payments to which the Executive is entitled under any other severance
plan of the Company (other than amounts payable pursuant to this Agreement); provided,
however, that if a Change in Control occurs during the period in which
the Executive is receiving payments hereunder, the


 


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amount
payable hereunder but not yet paid shall be paid in a lump sum within thirty
(30) days following the Change in Control;


 


(ii)                                 continuation
of the Executive’s group health insurance and dental insurance with respect to
Executive and his dependents for the greater of (i) the period provided
pursuant to the terms of the plan or (ii) if the coverage or insurance is
subject to Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”),
the COBRA continuation period.  In any
case, for the twelve (12) month period immediately following the termination of
the Executive’s employment (and only for such period), the costs of such
continuation shall be shared by the Company and the Executive in the same
proportion as such costs are shared by active employees of the Company.  Notwithstanding the foregoing, in the event
the Executive becomes reemployed with another employer and becomes eligible to
receive comparable benefits under the employee benefit plans referred to in the
preceding sentence from such employer, the Executive and the Executive’s
dependent’s shall no longer be entitled to continued participation in the
applicable employee benefits plan; and


 


(iii)                               senior executive level outplacement services
for a period of twelve (12) months provided by an outplacement firm selected by
the Executive and approved by the Company (such approval not to be unreasonably
withheld) and paid for by the Company.


 


(d)                                 Termination by Executive without Good Reason;
Termination by the Company for Cause.  The Executive shall have the
right, upon sixty (60) days’ prior written notice to the Company, to terminate
the Period of Employment without Good Reason. 
The Company may terminate the Period of Employment for Cause at any
time.  Notwithstanding the foregoing, the
Company shall not be deemed to have terminated the Period of Employment for
Cause unless (i) the Company gives written notice to the Executive stating
in reasonable detail the events which constitute Cause, (ii) such notice
is given within the later of (x) thirty (30) days following the occurrence of
such events or (y) five (5) days following the date the Company knows of
the event constituting Cause and, (iii) if the Board of Directors of the
Company determines, in its sole discretion, that such failure or material
breach is reasonably susceptible to cure, the Executive does not effect a cure
within thirty (30) days after the receipt of the written notice referred to in
clause (i) from the Company.  If the
Executive should terminate the Period of Employment without Good Reason or the
Company should terminate the Period of Employment for Cause, the Executive shall
be entitled under this Agreement to his Accrued Benefits.  The exercise by the Company of its right to
terminate the Executive’s employment for Cause shall not abrogate the rights or
remedies of the Company in respect of the circumstances giving rise to such
termination.


 


(e)                                  Termination for Good Reason.  The
Executive may terminate the Period of Employment for Good Reason.  If the Executive should terminate the


 


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Period
of Employment for Good Reason prior to a Change in Control or more than twelve
(12) months after a Change in Control, the Executive shall be entitled to his
Accrued Benefits.  In addition, provided
that the Executive executes the mutual release and non-disparagement agreement
referred to in paragraph (i) of this Section the Executive will be
entitled to the separation payments delineated in paragraph
(c)(i)-(iii) of this Section 7.


 


(f)                                    Expiration of Period of Employment.  If
the Period of Employment ends due to the expiration thereof as a result of
notice by the Company not to extend the Period of Employment in accordance with
Section 2, the end of the Period of Employment shall constitute and be
considered a termination without Cause pursuant to paragraph (c) of this
Section and shall entitle the Executive to his Accrued Benefits and the
separation payments delineated in paragraph (c)(i)-(iii) of this
Section 7.


 


(g)                                 Termination After a Change in Control. 
Notwithstanding any of the foregoing to the contrary, if during the
period that commences upon a Change in Control and ends twelve (12) months
after a Change in Control, the Company should terminate the Period of
Employment without Cause or the Executive should terminate the Period of
Employment for Good Reason, the Executive shall be entitled to the same
separation payments and benefits as provided under paragraph (c) of this
Section 7, except that amounts referred to in clause (i) of paragraph
(c) shall be paid in a lump sum within thirty (30) days following the
Executive’s termination of employment. 


 


Notwithstanding
anything in the above to the contrary, amounts shall also be payable under this
paragraph (g) if such termination occurs prior to a Change in Control and
it is reasonably demonstrated by the Executive that such termination of employment
(x) was at the request of a third party who has taken steps reasonably
calculated to effect a Change in Control or (y) otherwise arose in connection
with or in anticipation of a Change in Control.


 


(h)                                 Definitions.


 


For
purposes of this Agreement:


 


(i)                                     “Cause”
shall mean: the refusal or continued willful failure by the Executive to
perform substantially his duties with the Company (other than any failure
resulting from incapacity due to physical or mental illness) after a demand for
substantial performance is delivered to the Executive by the Company which
identifies in reasonable detail the manner in which the Executive has not
substantially performed his duties; engaging in illegal conduct or gross
misconduct which causes financial or reputational harm to the Company; habitual
abuse of narcotics or alcohol; material breach of any written policy of Company
or a subsidiary, including the Company’s Code of Business Conduct and Ethics;
fraud or material dishonesty in connection with the business of Company or a
subsidiary; any material breach by the Executive of one or more of the
covenants contained in Section 8 or 9


 


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hereof;
and any violation of a statutory or common law duty of loyalty to the Company
or any of its subsidiaries.  For purposes
of this definition, acts or omissions of the Executive shall not be considered
“willful” unless done or omitted by the Executive (A) intentionally or not
in good faith and (B) without the reasonable belief that the Executive’s
action or omission was consistent with the direction of the Board, and shall
not include failure to act resulting from incapacity due to physical or mental
impairment.


 


(ii)         “Change
in Control” shall mean:


 


(1)         acquisition by any individual, entity
or group (a “Person”), including any “person” within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), of beneficial ownership within the
meaning of Rule 13d-3 promulgated under the Exchange Act, of more than
fifty percent (50%) of either (x) the then outstanding shares of common stock
of the Company (the “Outstanding Common Stock”) or (y) the combined voting
power of the then outstanding securities of the Company entitled to vote generally
in the election of directors (the “Outstanding Voting Securities”); excluding,
however, the following: (A) any acquisition directly from the Company, if
a majority of the Incumbent Board (as such term is defined below) approve a
resolution expressly providing that such acquisition does not constitute a
Change in Control under this clause (A) (excluding any acquisition
resulting from the exercise of an exercise, conversion or exchange privilege
unless the security being so exercised, converted or exchanged was acquired
directly from the Company); (B) any acquisition by the Company, or a
corporation controlled by the Company; (C) any acquisition by an employee
benefit plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company; (D) any acquisition by an
underwriter temporarily holding securities pursuant to an offering of such
securities; or (E) any acquisition by any corporation pursuant to a
transaction that complies with clauses (x), (y) and (z) of subsection (3) of
this definition; provided further, that for purposes of clause (B), if any
Person other than the Company or any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the Company
shall become the beneficial owner within the meaning of Rule 13d-3
promulgated under the Exchange Act (the “Beneficial Owner”) of more than fifty
percent (50%) of the Outstanding Common Stock or of the Outstanding Voting
Securities by reason of an acquisition by the Company, and such Person shall,
after such acquisition by the Company, become the Beneficial Owner of any
additional shares of the Outstanding Common Stock or any additional Outstanding
Voting Securities and such Beneficial Ownership is publicly announced, such
additional Beneficial Ownership shall constitute a Change in Control;


 


(2)         individuals who, as of the date of this
Agreement, constitute the Board (the “Incumbent Board”) cease for any
reason to constitute at least a majority of such Board; provided that any
individual who becomes a director of the Company subsequent to the date of this
Agreement, whose


 


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election,
or nomination for election by the Company’s stockholders, was approved by the
vote of at least a majority of the directors then comprising the Incumbent
Board shall be deemed a member of the Incumbent Board; and provided further,
that any individual who was initially elected as a director of the Company as a
result of an actual or threatened election contest, as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange Act, or any
other actual or threatened solicitation of proxies or consents by or on behalf
of any Person other than the Board shall not be deemed a member of the
Incumbent Board; or


 


(3)         consummation of a  reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the assets of the
Company (a “Corporate Transaction”); excluding, however, a Corporate
Transaction pursuant to which (x) all or substantially all of the individual or
entities who are the Beneficial Owners, respectively, of the Outstanding Common
Stock and the Outstanding Voting Securities immediately prior to such Corporate
Transaction will beneficially own within the meaning of Rule 13d-3
promulgated under the Exchange Act (“Beneficially Own”) directly or indirectly,
more than fifty percent (50%) of, respectively, the outstanding shares of
common stock, and the combined voting power of the outstanding securities
entitled to vote generally in the election of directors, as the case may be, of
the corporation resulting from such Corporate Transaction (including, without
limitation, a corporation that as a result of such transaction owns all or
substantially all of the outstanding stock of 
the Company or all or substantially all of the Company’s assets either
directly or indirectly) in substantially the same proportions relative to each
other as their ownership, immediately prior to such Corporate Transaction, of
the Outstanding Common Stock and the Outstanding Voting Securities, as the case
may be, (y) (1) no Person (other than the Company or a corporation
controlled by the Company, any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the
Company, the corporation resulting from such Corporate Transaction, or any
Person that Beneficially Owned, immediately prior to such Corporation
Transaction, directly or indirectly, more than fifty percent (50%) of the
Outstanding Common Stock or the Outstanding Voting Securities, as the case may
be) will Beneficially Own, directly or indirectly, more than fifty percent
(50%) of, respectively, the outstanding shares of common stock of the
corporation resulting from such Corporate Transaction or the combined voting
power of the outstanding securities of such corporation entitled to vote
generally in the election of directors and (2) individuals who were
members of the Incumbent Board at the time of the Board’s approval of the
execution of the initial agreement providing for such Corporate Transaction
will constitute at least a majority of the members of the board of directors of
the corporation resulting from such Corporate Transaction; or (z) consummation
of a plan of complete liquidation or dissolution of the Company.


 


(iii)                                       “Disability”
shall mean the inability of Executive for a period of 120 consecutive days or
180 days in any twelve (12) month period to render


 


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substantially
the services required of Executive under this Agreement by reason of mental or
physical impairment, whether resulting from illness, accident or otherwise.


 


(iv)                                      “Good Reason”
shall mean the occurrence of any of the following without the Executive’s
express written consent: (i) a reduction by the Company in Executive’s
Base Salary or target bonus opportunity as in effect on the date of this
Agreement or, in the event of a Change in Control, as in effect immediately
prior to the Change in Control, it being understood that a change in the
performance criteria applicable under any bonus plan (provided that such
change, to the extent applicable, effects executives of the Company generally),
shall not be Good Reason hereunder; (ii) the Company’s failure to keep in
effect retirement, health and welfare benefits plans, and executive
compensation plans under which Executive is eligible to receive benefits
substantially similar in value in the aggregate to the benefits Executive is
eligible to receive under such plans as of the date of this Agreement or, in
the event of a Change in Control, the day prior to the effective date of the
Change in Control, it being understood that a change in the performance
criteria (provided such change is not applicable solely to the Executive)
applicable for awards under any incentive or bonus plan, shall not be good
reason hereunder, (iii) the Company’s requiring Executive to be based
anywhere more than fifty (50) miles from where Executive’s principal place of
employment is located on the date of this Agreement; (iv) any change in
the commuting policy or reimbursement policy set forth in Section 5 as in
effect on the date hereof; (v) a change in the duties or reporting
responsibilities of Executive that is inconsistent in any substantial adverse
respect with Executive’s positions, duties or responsibilities as in effect on
the effective date of this Agreement or, in the event of a Change in Control,
immediately prior to the Change in Control (including any material adverse
diminution of such duties or responsibilities); provided, however,
that Good Reason shall not be deemed to occur upon a change in duties or
responsibilities that is solely and directly a result of the Company no longer
having publicly traded securities and does not involve any other event set
forth in this paragraph; and (vi) failure by Company to obtain a
satisfactory agreement from any Successor (as defined in Section 10) to
assume and agree to perform this Agreement as provided in Section 10.  Notwithstanding the foregoing, the Executive
shall not be deemed to have terminated the Period of Employment for Good Reason
unless the Executive gives written notice to the Company stating in reasonable
detail the events which constitute Good Reason, such notice to be given within
the later of (i) thirty (30) days of the occurrence of such event or
(ii) five (5) days of the date the Executive knows of the event
constituting Good Reason and, if such failure or breach is reasonably
susceptible to cure, the Company does not effect a cure within such thirty (30)
day period.


 


(i)                                     Mutual Release and Non-Disparagement
Agreement.  As a condition of the receipt of the
separation payments and benefits under paragraphs (c), (e), (f) and
(g) of this Section, the Executive must execute a separation agreement, in
form and substance reasonably satisfactory to the Company and the


 


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Executive,
containing provisions under which the parties (i) release each other,
including the Company, its subsidiaries and the officers, employees and agents
of Company and its subsidiaries, from all liability arising out of, or in
connection with Executive’s employment and termination of employment with the
Company and (ii) agree not at any time to 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 the
Company or Executive from making disclosure to tax or legal counsel or
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 the
Company’s securities are traded.  If an
arbitrator determines that the Executive has materially breached the terms of
such separation agreement, 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 monetary damages
and an injunction, restraining order or other equitable relief restraining any
such material breach.  If an arbitrator determines
that the Company, its subsidiaries or the officers, employees and agents of the
Company have materially breached the terms of such separation agreement, the
Executive shall be entitled to monetary damages and an injunction, restraining
order or other equitable relief restraining any such material breach.


 


(j)                                     Tax Gross-Up.  If
the Executive incurs an excise tax imposed on “excess parachutes payments”
under Section 4999 of the Internal Revenue Code of 1986, as amended (the
“Code”) as defined in Section 280G of the Code or any additional tax under
Section 409A of the Code, in each case 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 or Parent,
in each case, in respect of this Agreement or any of the Company’s or Parent’s
incentive and benefit plans, then the Company shall pay the Executive an amount
equal to the sum of (x) the excise taxes payable on such excess parachutes payments
and/or the additional taxes payable on any amounts, plus (y) an additional
amount such that after payment of all taxes on such additional amount there
remains a balance sufficient to pay taxes actually due and payable on the tax
referred to in clause (x).


 


(k)                                  No Mitigation.  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.


 


8.                                       Confidential Information.  The
Executive reaffirms and agrees that at all times during the Period of
Employment and thereafter the Executive will


 


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comply
with the terms of the Confidentiality Agreement between the Executive and the
Company dated April 18, 2005 and attached as Exhibit A hereto. 


 


9.          Non-competition and
Non-solicitation Agreement.


 


(a)                                  Non-Compete. Without the consent in writing of the Board of Directors of the
Company, during the Period of Employment and for the period of  twelve (12) months following termination of
employment for any reason, 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”). 
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 of Directors of the Company (which consent shall be in the sole
discretion of the Board of Directors of the Company), during the Period of
Employment, and for the period of (x) twelve (12) months following termination
of employment for any reason other than those specified in clause (y) and (y)
twenty-four (24) months following termination of employment by the Company
without Cause or by the Executive for Good 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 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, (A) 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


 


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the
Executive in connection with the Executive’s relationship or employment with
the Company or its subsidiaries, and (B) “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 9, 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.


 


10.                                         Successor of Company.  The
Company will require any Successor to expressly assume and agree, by an
agreement in form and substance satisfactory to the 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.  Failure of the Company to obtain such assent
at least five business days prior to the time a person becomes a Successor (or
if the Company does not have at least five business days after having notice
that a person may become a Successor, within three business days after having
notice that such person may become or has become a Successor) shall constitute
Good Reason and, if a Change in Control of the Company has occurred or
thereafter occurs, shall entitle the Executive to the benefits provided in
paragraph (c) of Section 7. 
For purposes of this Agreement, “Successor” shall mean any person
(a) that purchases all or substantially all of the assets of the Company
or obtains or succeeds to, or has the practical ability to control (either
immediately or with the passage of time), the Company’s business directly, by
merger or consolidation, or indirectly, by purchase of voting securities or
otherwise or (b) to whom the Company assigns this Agreement pursuant to
Section 15(a).


 


11.                                         Resolution of Disputes.  Any
dispute or controversy arising under or in connection with Executive’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.


 


12.                                         Legal Fees. Notwithstanding Section 11 hereof to the contrary, Company shall
reimburse the Executive for all reasonable legal costs and fees and related
expenses incurred by Executive seeking to obtain or enforce any


 


12

















 


payment,
benefit or right provided by this Agreement if the Executive’s claim is
substantially upheld by a court or an arbitration panel.


 


13.                                         Governing 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.


 


14.                                         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 the Chief Executive
Officer, Merisant Company, 10 S. Riverside Plaza, Suite 850, Chicago,
IL  60606; and (b) if to the
Executive, to Jonathan W. Cole, 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.


 


15.           Miscellaneous.


 


(a)                          Entire Agreement.  This
Agreement, any attachments hereto, the employee benefit plans referenced herein
and any agreements thereunder and the Indemnification Agreement existing as of
the Effective Date between the Company and the Executive constitute the entire
understanding between the Company and the Executive relating to the employment
of the Executive by the Company and supersede and cancel all prior written and
oral agreements and understandings with respect to the subject matter of this
Agreement.  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
the Executive, the Executive’s heirs, executors, administrators and beneficiaries,
and the Company and its successors.  This
Agreement may not be assigned by one party without the express prior written
consent of the other party; provided, however, that, subject to Section 10
hereof the Company may assign its rights and obligations hereunder to Parent
and from and after the effective time of such assignment the “Company” as used
hereunder shall mean Parent.


 


13

















 


 (b)                      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.


 


(c)                          Withholding Taxes.  All
amounts payable to the Executive under this Agreement shall be subject to
applicable withholding of income, wage and other taxes if required by
applicable law.


 


(d)                         Compliance with Section 409A. 
Notwithstanding any of the foregoing to the contrary, if any payments of
money, delivery of shares of Company stock or other benefits due to the
Executive hereunder could cause the application of an accelerated or additional
tax under Section 409A of the Code, such payments, delivery of shares or
other benefits (x) shall, if compliance with Section 409A of the Code can
be effected by delaying such payments, delivery of shares or other benefits, be
delayed until the earliest date on which such payments, delivery of shares or
other benefits may be made without causing the application of an accelerated or
additional tax under Section 409A of the Code, and (y) if compliance with
Section 409A of the Code cannot be effected by delaying such payments,
delivery of shares or other benefits, may be restructured, to the extent
possible, in a manner, determined by the Company and reasonably acceptable to
the Executive, that does not cause such accelerated or additional tax. 


 


(e)                          Survival.  Sections 7, 8, 9, 10, 11, 12,
13, 14 and 15 of this Agreement shall survive and continue in full force and
effect in accordance with their respective terms, notwithstanding any
termination of the Period of Employment and/or this Agreement.


 


(f)                            Counterparts.  This
Agreement may be executed in counterparts, each of which shall be deemed to be
an original and both of which together shall constitute one and the same
instrument.


 


(g)                         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.


 


(h)                         Third Party Beneficiary.  The
Parent is a third party beneficiary of this Agreement with the right to enforce
the provisions hereof.


 


14

















 


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


 


 


	
   

  	
  MERISANT COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Paul Block

  	
   

  
	
   

  	
   

  	
  Paul Block

  
	
   

  	
   

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jonathan W. Cole

  	
   

  
	
   

  	
   

  	
  Jonathan
  W. Cole

  



 


15

















 


EXHIBIT A


 


Confidentiality Agreement


 


[previously executed document to be attached in hard copy]


 


16

















 


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:


 


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.


 


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”
such 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.


 


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.


 


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


 


2

















 


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 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.


 


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.


 


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


 


3

















 


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.


 


This Agreement is signed in duplicate, as of
the 20th of April 2005.


 


MERISANT COMPANY


 


 


	
  By:

  	
   

  	
  /s/ Jonathan W. Cole

  	
   

  	
  /s/ Jonathan W. Cole

  	
   

  
	
   

  	
   

  	
  Signature of Employee

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Jonathan W. Cole

  	
   

  
	
   

  	
   

  	
  Typed Name of Employee

  
	
   

  	
   

  	
   

  
	
  OR

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name of Subsidiary

  	
   

  	
  Employment Location

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
										



 


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