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Exhibit 10.7
AMENDED AND RESTATED RETAIL
DISTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED RETAIL DISTRIBUTION AGREEMENT (this
"Agreement") is made and entered into as of
this 17th day of May, 2001, by and
between Merisant US, Inc., a Delaware
corporation, having offices at 10 South
Riverside Plaza, Suite 850, Chicago,
Illinois 60606 ("Merisant"), and Heinz
U.S.A., a division of H.J. Heinz Company, a
Delaware corporation, having its
principal place of business at 1062
Progress Street, Pittsburgh, Pennsylvania
15212-5990 ("Heinz").
INTRODUCTION. On or about May 1, 1998, the Nutrition and
Consumer
Sector of Monsanto Company and Heinz
entered into that certain Retail
Distribution Agreement (the "Original
Agreement") related to certain retail
tabletop sweetener products. Thereafter, on
or about March 17, 2000, Merisant
Company acquired the tabletop sweetener
business from Monsanto Company. In
connection with this acquisition, the
Original Agreement was assigned to
Merisant US, Inc. Merisant and Heinz now
desire to terminate the Original
Agreement and substitute this Agreement in
lieu thereof.
NOW, THEREFORE, for and in consideration of the mutual promises
set
forth herein and other good and valuable
consideration, the receipt and adequacy
of which are hereby acknowledged, the
parties do hereby agree as follows:
1.
TERMINATION OF THE ORIGINAL AGREEMENT.
Effective as of the date hereof, the Original Agreement is
hereby
terminated, and this Agreement is
substituted in lieu thereof.
2.
APPOINTMENT; TERRITORY.
2.1 APPOINTMENT.
Subject to the terms and conditions contained
herein, Merisant appoints Heinz; and Heinz
accepts its appointment as the
exclusive distributor of Merisant's
products listed in Exhibit "A" to this
Agreement (the "Products"), in the channels
of trade listed in Exhibit "A", in
the United States (the "Territory").
Nothing contained in this Agreement shall
be construed to limit or restrict
Merisant's right, in its sole discretion, to
discontinue the manufacture, sale or
distribution of any of the Products at any
time.
2.2 MERISANT RIGHTS.
Merisant will have the following rights:
(i) during normal business hours to inspect
those portions of the offices,
warehouses and other facilities of Heinz,
where Products are stored or
distributed, provided reasonable advance
written notice of least twenty-four
(24) hours is provided to Heinz; (ii) to
visit customers for the Products; (iii)
to provide in its discretion, with the
approval of Heinz, such approval not to
be unreasonably withheld, incentives to
Heinz's sales organization including
subdistributors, sales agents and brokers,
upon providing prior notice to Heinz;
and (iv) to provide to any customer for the
Products trade incentives. Heinz
agrees
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to furnish to Merisant, upon Merisant's
request, a complete list of the names
and locations of Heinz's customers for the
Products.
2.3 ADDITIONAL SERVICES. In the event that a customer for the
Products requests a service that is outside
the scope of this Agreement, the
parties agree to use their best efforts to
reach a mutually acceptable solution
that is in the best interests of the
parties.
2.4 THIRD PARTY ACTIVITIES. Merisant will not be liable to
Heinz
for any third party sales of the Products
or other activities within the
Territory which have not been authorized by
Merisant; provided, however, that
Merisant will not sell the Products to any
entity it knows, or has reason to
know, intends to distribute or sell the
Products within the Territory.
2.5 DIRECT CUSTOMERS. The retail customers listed in Exhibit
"B"
to this Agreement (the "Direct Customers")
shall remain the direct sales and
service customers of Merisant, and except
as provided herein, are outside the
scope of this Agreement. However, if
requested by Merisant, and agreed upon by
Heinz, Heinz will provide the same services
provided to its customers pursuant
to this Agreement. In such event, upon
receipt by Merisant of full payment from
the Direct Customer, Merisant will pay to
Heinz a fee at an amount to be
mutually agreed for any such services
provided by Heinz to the Direct Customer.
Merisant may add or delete customers from
Exhibit "B", which additions may
include the then current customers of
Heinz, by giving Heinz no less than thirty
(30) days prior written notice of its
intention. Except as Merisant may
expressly request, Heinz will not, directly
or indirectly, contact any Direct
Customer in connection with the Products.
If Heinz agrees to provided the
requested services to a Direct Customer,
Heinz shall have the right to amend the
transportation and warehousing rates listed
in Exhibit "G" accordingly. If
Merisant adds a customer to Exhibit "B"
that was immediately prior to such
addition a customer of Heinz hereunder,
Merisant shall pay to Heinz an amount
equal to the commission rate applied to
sales of the Products to such customer
made by Merisant over the six (6) month
period immediately following the
effective date of the addition, which
amount shall be paid within thirty (30)
days of the end of the period.
3. DUTIES
OF HEINZ.
3.1 CUSTOMARY
SERVICES. Heinz shall provide all of the usual
and customary services of a distributor,
which shall include without limitation
the following:
(a) Use its
reasonable best efforts to distribute and sell the
Products in the Territory, and to extend
the distribution and sale of the
Products in the Territory so as to maximize
such distribution, and to meet or
exceed the annual volume sales targets
agreed to by the parties. The services
shall be consistent with and no less than
the services performed by Heinz in
connection with the sale and distribution
of its products. Heinz shall provide
to Merisant forecasts of purchases of
Product and ship-to-trade for the upcoming
month and rolling twelve (12) month period,
at least fifteen (15) days prior to
the beginning of the month in question.
Such forecasts shall be stated in the
aggregate and broken down by SKU.
(b) Maintain an
aggressive direct sales force and trained personnel
adequate for the needs of the Territory,
maintaining such office, warehouse and
distribution facilities as shall be
reasonably necessary.
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(c) Regularly
monitor and handle the Products at Heinz's
distribution centers and third party
warehouses to ensure their proper storage,
handling and continued conformance to an
"excellent" rating pursuant to the AST
Food Warehousing Grading Guidelines,
version 1/95.F5.1, a copy of which has been
provided to each party.
(d) Manage
inventory rotation of the Products on a "code out" (FIFO)
basis. Any obsolescence of the Products
which was the result of improperly
managed inventory rotation, as mutually
agreed by the parties, will be for the
sole account of Heinz. Costs will relate to
the manufacturing and distribution
costs of the obsolete Products and
destruction costs. All costs of obsolete
Products due to reasons other than improper
rotation on the part of Heinz will
be borne by Merisant.
(e) Annually,
complete and deliver to Merisant a physical inventory
by DC by SKU by date code.
(f) Follow the
sales policy and procedures set forth in Exhibit "C"
to this Agreement.
3.2 OTHER SALES.
During the term of this Agreement, Heinz shall
not directly or indirectly manufacture,
distribute or sell, or assist any other
entity to manufacture, distribute or sell,
in the Territory, including without
limitation through any subdistributor,
sales agent and broker, any tabletop
sweetener products other than the
Products.
3.3 PURCHASE AND
INVENTORY SCHEDULE. During the Term of this
Agreement, Heinz shall submit to Merisant
binding purchase orders for Product on
a weekly basis. Heinz shall manage its
inventory of each SKU of the Product such
that it maintains a 98% case fill rate for
ship-to-trade orders (the "Minimum
Inventory") and shall forward to Merisant
within five (5) days after the end of
each month adequate documentation (as
mutually agreed by the parties) of the
percentage fill rate for such past month.
If, at any time or from time to time
during the time of this Agreement, Heinz is
unable to maintain a 98% case fill
rate for three consecutive months, the
parties agree to meet to discuss the
matter. Such meeting shall be in addition
to, and not in lieu of, any other
rights or remedies provided hereunder.
3.4 NO OTHER
WARRANTIES; PRODUCTS COMPLAINTS. Heinz shall not
make any verbal or written warranties,
representations or claims concerning the
Products other than those contained in
written materials previously supplied by
Merisant to Heinz. Products related
complaints received by Heinz will be
promptly forwarded to Merisant and handled
by Heinz in accordance with the
procedures set forth in Exhibit "D" to this
Agreement, and Heinz will assist
Merisant to the extent reasonably necessary
in the resolution of the complaints.
3.5 RECALL. Only
Merisant may initiate the recall or withdrawal
of the Products. In the event of such
recall or withdrawal, Merisant will
provide notice to Heinz, and the recall
shall be conducted by Heinz in
accordance with the procedures and policy
established by Heinz. In addition,
Heinz agrees to provide any additional
reasonable services requested by
Merisant. Heinz's expenses directly related
to the recall or withdrawal
services, including out-of-pocket and
allocated
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manpower expenses, will be billed to
Merisant, provided that Merisant shall bear
no expense if the recall or withdrawal is
caused or contributed to by Heinz's
negligence or willful misconduct.
3.6 RETURNED GOODS
POLICY. Merisant shall accept the return by
Heinz of the Products in accordance with
Heinz's Returned Goods Policy, a copy
of which is attached hereto as Exhibit "E".
Merisant agrees to reimburse Heinz
for reasonable charges, including freight
and handling, it incurs for the
services provided by third parties employed
by Heinz to process unsalable
Products and damaged Products claims.
4. Prices
and Terms.
4.1 PRICES. The
initial prices for the Products shall be equal
to ninety-four percent (94%) of the prices
listed in Exhibit "F" to this
Agreement . The listed prices less the
preceding discount include all services
and expenses to be provided by Heinz
pursuant to this Agreement, including
without limitation, commissions, and sales
expenses, all of which represent five
percent (5%) of the preceding discount, and
administrative functions associated
with order entry, order processing and
transmittal of bills of lading, routing
or orders, consolidation of orders,
warehouse reporting, credit and collection,
selection and management of public
warehouses and plant warehousing, and
customer shortage claims, which represent
one percent (1%) of the preceding
discount. Merisant may revise the prices
listed in Exhibit "F" from time to time
upon ninety (90) days' prior written notice
to Heinz. In the event that Merisant
decreases its list prices, all Product
inventory in Heinz DC's will be price
protected.
4.2 INVOICES. Merisant
shall invoice Heinz at the time of
delivery of the Products to the carrier.
Invoices shall be due forty-five (45)
days from the date of invoice, subject to a
two percent (2%) discount for
payment of the invoice in full by the due
date.
4.3 ANNUAL BONUS
PROGRAM. Provided that Heinz meets or exceeds
the annual sales volume and performance
goals for the Products for the
immediately preceding twelve (12) month
period as set forth in the Annual
Incentive Program developed by Merisant,
Merisant will pay Heinz a bonus (the
"Bonus") as set forth in such Annual
Incentive Program. The Bonus will be
calculated and paid within thirty (30) days
of the end of the twelve-month
period in question.
4.4 PROMOTIONAL
ALLOWANCES; PROMOTIONAL MATERIALS. From time to
time, Merisant may offer promotional
allowances to the customers of Heinz. All
such promotional allowances will be either
"off invoice" or billbacks" as
mutually agreed by the parties. All
promotional allowances authorized by
Merisant shall be invoiced to Merisant in
the month immediately following such
activity accompanied by complete supporting
documentation as mutually agreed by
the parties, minus seven and two tenths
percent (7.2%) for direct customers
invoiced at the net contracted price.
Immediately prior to the end of the
initial term and any subsequent term of
this Agreement, the parties will review
the above-stated percentage deducted from
each invoice and the calculation of
the invoice to determine that Heinz was
properly compensated. In the event that
this review indicates that the compensation
due was not properly determined, the
amount will be adjusted accordingly.
In the event of new product introductions
by Merisant, the parties will discuss
any promotional allowances that may be
offered by Merisant to the customers of
Heinz, and the compensation that may be due
Heinz.
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Merisant will make available periodically
to Heinz for use by its sales force
reasonable quantities of promotional
materials at no cost. However, if Heinz's
own promotional or advertising activities
make use of Merisant's trademarks or
contain any reference to the Products,
Heinz agrees to obtain Merisant's written
consent prior to any such use or reference.
In the event that Merisant does not
respond to the request of Heinz within ten
(10) days from the date of receipt of
the request, Merisant's consent shall be
considered given to such request.
4.5 FREIGHT AND
WAREHOUSING COSTS. Merisant will assume
trans
