Exhibit
10.1


 


Execution
Copy


AMENDED
AND RESTATED EMPLOYMENT AGREEMENT


 


AMENDED
AND RESTATED EMPLOYMENT AGREEMENT, made this 14th day of November, 2005 by and
among Merisant Worldwide, Inc., a Delaware corporation (“Parent”), Merisant
Company, a Delaware corporation and wholly owned subsidiary of Parent (the
“Company”), and Paul R. Block (the “Executive”).


WHEREAS,
the Executive and the Company entered into an Employment Agreement dated August
26, 2004 (the “Original Agreement”).


WHEREAS,
since the date of the Original Agreement (i) Parent has withdrawn its initial
public offering of income deposit securities, making inapplicable the 2004 IDS
Incentive Plan and (ii) effective as of November 8, 2004, the Executive became
the Chief Executive Officer of the Company.


WHEREAS,
the Executive and the Company desire to amend and restate the Original
Agreement in order to reflect such changes, as well as other matters agreed to
by the Executive, Parent and the Company.


IN
CONSIDERATION OF the mutual covenants herein contained, and other good and
valuable consideration, the parties hereto 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.   During the Period of Employment, the
Executive also agrees to serve, if elected as a Director of the Board of
Directors of the Company (the “Board”) and the Board of Directors of any of the
Company’s subsidiaries or the Parent, as well as a member of any committee of
the Board or of any such Board of Directors to which the Executive may be
elected or appointed.  The Executive’s
nomination to stand for election to the Board or any such Board of Directors
shall be at the sole discretion of the Board and of the Board of Directors, as
applicable.  It is agreed and understood
that the Executive shall resign as a Director of the Company and any of its
subsidiaries and Parent immediately upon the termination of his employment
hereunder for any reason.


2.             Period
of Employment.  The Executive shall
be employed by the Company for the period commencing on September 27, 2004 (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.  Notice by the
Company not to extend the Period of Employment shall not be treated as a
termination by the Company without Cause for purposes of Section 7.  The Period of Employment may be terminated
prior thereto as provided in Section 7. 


 


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3.             Position
and Duties.  The Executive shall
serve as the President and Chief Executive Officer of the Company and the
Parent, reporting to the Board and the Board of Directors of the Parent,
respectively, 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 Board and the
Board of Directors of the Parent. 
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 or Parent.  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, however,
that the Executive may engage in activities involving professional, charitable,
educational, religious and similar types of organizations, speaking
engagements, membership on the board of directors of up to two (2) for-profit
organizations, 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 an initial base salary at the annual rate of
four hundred thousand dollars ($400,000), payable in accordance with the
Company’s regular payroll practices.  The
base salary shall be reviewed annually by the Compensation Committee of the
Board at the same time as other senior officers of the Company.  The Company may not decrease the base salary
except as part of an across the board reduction in base salary applicable to
other senior officers of the Company so long 
as such reduction affecting the Executive is not, on a percentage basis,
higher than the average percentage reduction applied to the Company’s other
senior officers.


(b)           Target
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, in its sole discretion, with a target bonus opportunity as a
percentage of base salary no less than one hundred percent (100%).  The performance criteria under the Annual
Incentive Plan or other annual bonus plan shall be determined by the
Compensation Committee of the Board in consultation with the Executive within
forty-five (45) days after the beginning of the applicable fiscal year.  The annual cash bonus in respect of any
fiscal year shall be paid in accordance with the procedures specified 


 


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                by
the Compensation Committee, but in no event later than two and one-half months
after the end of each fiscal year. 
Assuming the Executive’s employment does not terminate either by the
Executive without Good Reason or by the Company with Cause, the Executive is
guaranteed a bonus for 2005 at least $350,000. 
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 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, including, without limitation, the 2005 Share Appreciation Plan
as adopted by the Board of Directors of Parent or as the same may be modified
from time to time pursuant to the terms thereof (the “2005 Plan”), for so long
as such plans are in effect and any deferred compensation plans and
supplemental retirement plans.  Subject
to the approval of the Compensation Committee of the Board of Directors of
Parent, the Executive shall be granted (i) a First Level Appreciation Award of
434,749.5 Share Units, (ii) a Second Level Appreciation Award of 555,513 Share
Units and (iii) a Third Level Appreciation Award of 681,765.5 Share Units under
the 2005 Plan.


5.             Relocation
and Commuting Expense Reimbursement. 
The Executive may continue his residence in Fairfield, Connecticut and
commute to the Chicago area to be present in the Company’s offices on a
regularly scheduled basis on business days (excluding business travel).  The Company shall reimburse the Executive for
reasonable commuting expenses and for temporary housing in the Chicago
metropolitan area during the Employment Period. 
Notwithstanding the preceding, if the Executive and the Company agree it
is in the best interest of the Company for the Executive to relocate to
Chicago, a mutually agreeable relocation package will be provided to the
Executive.  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, with a carryover of up to two (2) weeks per fiscal year.


(b)           Regular
Reimbursed Business Expenses.  The
Company shall reimburse the Executive for all expenses and disbursements reasonably
incurred by the 


 


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                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)           Perquisites.  During the Period of Employment, the
Executive shall be entitled to (i) in accordance with the Company’s auto policy
for senior managers, an automobile allowance or use of a Company owned or
leased car and (ii) the perquisites generally made available to other senior
officers of the Company.


(e)           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 the Company or Parent to amend, discontinue,
substitute or maintain any benefit plan, program or perquisite. 


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: (i) within thirty (30) days of such termination, his Accrued Benefits and
(ii) within two and one-half months following the end of the Company’s fiscal
year in which the termination of the Executive’s employment occurs, a lump sum
cash 


 


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                amount
equal to the result of multiplying (x) the bonus the Executive would have
received under the Company’s Annual Incentive Plan or other annual bonus plan
for such fiscal year, based on the performance criteria set forth in such
annual bonus plan for such fiscal year determined as if all conditions
applicable to said bonus had been met and as if Executive remained employed
through such fiscal year by (y) a fraction, the numerator of which is the
number of days elapsed in the fiscal year in which the termination of
employment occurs through the date of termination, and the denominator of which
is 365 reduced, if applicable, by any amounts paid from Company’s Annual
Incentive Plan or other annual bonus plan for the fiscal year in which termination
of employment occurs.


(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 eighteen (18) 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 eighteen (18)
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 amount payable hereunder but not yet paid shall be paid
in a lump sum within thirty (30) days following the Change in Control;


(ii)                                  no later than
two and one-half months following the end of the Company’s fiscal year in which
the termination of the Executive’s employment occurs, $350,000, if such
termination occurs prior to January 1, 2006 or if such termination occurs on or
after January 1, 2006, a lump sum cash amount equal to the result of
multiplying (x) the bonus the Executive would have received under the Company’s
Annual Incentive Plan or other annual bonus plan for such fiscal year had the
Executive remained employed with the Company through the end of such fiscal
year, based on the performance criteria set forth in such annual bonus plan for
such fiscal year by (y) a fraction, the numerator of which is the number of
days elapsed in the fiscal year in which the termination of employment occurs
through the date of termination, and the denominator of which is 


 


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                                                365; provided,
however, that if a Change in Control occurs during the period in which
the Executive is entitled to payments hereunder but has not yet received such
payments, then the pro rata bonus referred to above shall (x) be paid
within thirty (30) days following the Change in Control and (y) be based on the
Executive’s target bonus under the Company’s Annual Incentive Plan or other
annual bonus plan for the fiscal year in which the Change in Control occurs;


(iii)          continuation
of the Executive’s group health insurance, dental insurance, vision insurance,
long-term disability insurance and life 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 eighteen (18) 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


(iv)                              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.


In addition, notwithstanding
anything to the contrary in the 2005 Plan, if the Company terminates the Period
of Employment without Cause during the 180-day period immediately preceding the
Initial Distribution Date (as defined in the 2005 Plan), the Executive shall
not forfeit his Appreciation Awards under Section 9 of the 2005 Plan.


(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) the date the Company knows of the event constituting Cause and,
(iii) if the Board determines, in its sole discretion, 


 


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                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 Period
of Employment for Good Reason prior to a Change in Control or more than
eighteen (18) 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)-(iv) of this
Section 7.  In addition, notwithstanding
anything to the contrary in the 2005 Plan, if the Executive should terminate
the Period of Employment for Good Reason during the 180-day period immediately
preceding the Initial Distribution Date (as defined in the 2005 Plan), the
Executive shall not forfeit his Appreciation Awards under Section 9 of the 2005
Plan.


(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)-(v) of this Section 7.


(g)           Termination
Before or 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 eighteen (18) 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, subject to the following modifications:


(i)                                     the severance
compensation 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; and


(ii)                                  the pro rata
bonus referred to in clause (ii) of paragraph (c) shall (x) be paid within
thirty (30) days following the Executive’s termination of employment and (y) be
based on the Executive’s target bonus under the Company’s Annual Incentive Plan
or other 


 


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                                                annual bonus
plan for the fiscal year in which the Executive’s termination of employment
occurs.


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 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 


 


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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 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 


 


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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 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 


 


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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) 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 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.


 


11





















 


(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 comply with the terms of the Confidentiality Agreement between
the Executive and the Company dated September 27, 2004 and attached as Exhibit
A hereto. 


9.             Non-competition
and Non-solicitation Agreement.


(a)           Non-Compete.
Without the consent in writing of the Board, during the Period of Employment
and for the period of (x) twelve (12) months following termination of
employment for any reason other than those specified in clause (y) and (y)
eighteen (18) months following termination of employment by the Company without
Cause or by the Executive for Good 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”). 
The names of the Competitive Enterprises as of the date of this
Agreement are set forth on Exhibit B. 
The Company 


 


12





















 


                shall
furnish the Executive 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, the Executive shall not be
prohibited from owning less than five percent (5%) of the equity of any
publicly traded entity.


(b)           Non-Solicit.  Without the consent in writing of the Board
(which consent shall be in the sole discretion of the Board), during the Period
of Employment, and for the period of (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 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 


 


13





















 


                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 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.  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 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 


 


14





















 


                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 13:


(a)                                  Executive, to:

Paul R. Block

3257 North Street

Fairfield, Connecticut 06824


(b)                                 Company, to:

Merisant Company

10 S. Riverside Plaza

Suite 850

Chicago, Illinois 60606

Attention:  General Counsel

Facsimile No. 312-840-5347


(b)                                 Parent, to:

Merisant Worldwide, Inc.

10 S. Riverside Plaza

Suite 850

Chicago, Illinois 60606

Attention:  General Counsel

Facsimile No. 312-840-5347


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 parties; 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.


(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 


 


15





















 


                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
whout 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)            Fees.  The Company shall pay the legal fees incurred
by the Executive incurred in connection with the preparation and negotiation of
this Agreement up to a maximum of $15,000 promptly after receipt of reasonably
detailed invoice(s) relating thereto.


(g)           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.


(h)           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.


 


16





















 


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


 


	
   

  	
  MERISANT COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Anthony J. Nocchiero

  
	
   

  	
   

  	
  Anthony J. Nocchiero

  
	
   

  	
   

  	
  Vice President, Chief
  Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  MERISANT WORLDWIDE, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Anthony J. Nocchiero

  
	
   

  	
   

  	
  Anthony J. Nocchiero

  
	
   

  	
   

  	
  Vice President, Chief
  Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul R. Block

  
	
   

  	
   

  	
  Paul R. Block

  



 


17





















 


EXHIBIT A


 


Confidentiality Agreement


 


[previously executed document attached]


 


18





















 


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.


 


A-1





















 


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 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


 


A-2





















 


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
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.


 


A-3





















 


Execution
Copy


 


EXHIBIT B


 


Competitive Enterprises


 


•                  Johnson & Johnson,
McNeil Consumer Products and affiliates


•                  Cumberland Packaging, Inc.


•                  Ajinomoto Co., Inc.


•                  Hermesetas


•                  Alberto Culver Company


•                  Sara Lee Corporation


 


19