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Exhibit 10.9
AGREEMENT
AGREEMENT dated as of June 1, 2003 between Merisant Company, a
Delaware corporation (the "Company"), and
Arnold W. Donald ("Donald").
WHEREAS, the Company is engaged in the business of developing,
manufacturing, marketing, distributing and
selling tabletop sweetener products
to consumer end-users and establishments
serving or selling such products to
consumer end-users;
WHEREAS, the Company desires to retain Donald to provide services
to
the Company as its Chairman, upon the terms
and subject to the conditions set
forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties
hereby agree as follows:
1.
TERM
The Company hereby retains Donald and Donald hereby agrees to
provide
services to the Company upon the terms and
subject to the conditions contained
in this Agreement. The term of this
Agreement shall commence on June 1, 2003
and, unless earlier terminated pursuant to
Section 4, shall end at the close of
business on June 1, 2005 (such period
referred to herein as the "Term.")
2.
POSITION, SERVICES AND STATUS
(a) POSITION. Donald shall provide services to the Company during
the
Term as its Chairman.
(b) SERVICES. During the Term, Donald shall perform such services
for
the Company and its subsidiaries as may
from time to time be directed by the
Board of Directors of the Company (the
"Board").
(c) STATUS. Donald shall provide services to the Company hereunder
as
an independent contractor.
3.
COMPENSATION
(a) BASE COMPENSATION. During the Term, the Company shall pay
to
Donald base compensation at the rate of
$150,000 per annum ("Base
Compensation"), payable monthly. Such Base
Compensation shall be reviewed
annually, and shall be subject to such
annual increases, if any, as determined
by the Board.
(b) OFFICE. During the Term, provided that the Company maintains
the
lease on such office, the Company shall
provide Donald's existing office for his
use. If the Company does not maintain the
lease on Donald's existing office for
the full Term, it shall provide for
Donald's use during the remainder of the
Term, another office in the St Louis,
Missouri
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metropolitan area acceptable to Donald and
determined to be reasonable in the
sole discretion of the board of directors
of the Company.
(c) ADMINISTRATIVE ASSISTANT. During the Term, the Company
shall
provide for Donald's use the services of
the administrative assistant who
provided services to Donald on May 31,
2003, or if the services of such
individual are not available, the services
of another administrative assistant
acceptable to Donald.
(e) EXPENSE REIMBURSEMENT. During the Term, the Company shall
reimburse Donald for all reasonable and
proper expenses incurred by him in the
performance of services as active Chairman
of the Company and for the membership
dues and expenses associated with one
country club and one luncheon club.
4.
TERMINATION
(a) DEATH. Upon the death of Donald, this Agreement shall
automatically terminate and Donald's estate
or his beneficiaries, as the case
may be, shall be entitled to:
(1)
accrued Base Compensation through and including Donald's
date of death; and
(2) the
compensation, if any, that is or becomes payable in
accordance with the terms and conditions of any stock
option agreements, restricted stock awards and long-term
performance awards.
(b) TERMINATION BY THE COMPANY WITHOUT CAUSE. The Company may, at
its
option, terminate this Agreement prior to
the end of the Term without Cause
(defined below) upon written notice to
Donald. Upon such termination, Donald
shall be entitled to:
(1) the
Base Compensation, office, administrative assistant and
expense reimbursements provided in Section 3(a), (b), (c)
and (d) through and including the end of the Term; and
(2) the
compensation, if any, that is or becomes payable in
accordance with the terms and conditions of any stock
option agreements, restricted stock awards and long-term
performance awards.
(c) TERMINATION BY THE COMPANY FOR CAUSE.
(1) The
Company may, at its option, terminate Donald's services
under this Agreement for Cause (defined below). A
termination for Cause shall not take effect until and
unless the Company
complies with this Section 4(c)(1).
Donald shall be given written notice by the Board of the
intention to terminate his services hereunder for
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Cause (the "Cause Notice"). The Cause Notice shall state
the particular action(s) or inaction(s) giving rise to
termination for Cause. Donald shall have 10 days after the
Cause Notice is given to cure the particular action(s) or
inaction(s), to the extent a cure is possible. If Donald so
effects a cure, the Cause Notice shall be deemed rescinded
and of no force or effect.
(2) As
used in this Agreement, the term "Cause" shall mean any
one or more of the following:
(i)
Donald's refusal to perform his duties under this
Agreement or to perform specific directives of the
Board which are consistent with the scope and nature
of the Donald's duties and responsibilities as set
forth herein;
(ii) Donald's
commission of a felony or of any crime
involving moral turpitude, fraud, embezzlement,
theft or misrepresentation;
(iii) any gross
negligence or willful misconduct of Donald
resulting in substantial loss to the Company or
substantial damage to the Company's reputation;
(iv) any breach
by Donald of any one or more of the
covenants contained in Sections 6 hereof; or
(v) any
significant violation of any statutory or common
law duty of loyalty to the Company or any of its
subsidiaries.
(3) The
exercise of the right of the Company to terminate
Donald's services pursuant to this Section 4(c) shall not
abrogate the rights or remedies of the Company in respect
of the breach giving rise to such termination.
(4) If the
Company terminates Donald's services for Cause, he
shall be entitled to:
(i)
accrued Base Compensation through and including the
effective date of Donald's termination of services;
and
(ii) the
compensation, if any, that is or becomes payable
in accordance with the terms and conditions of any
stock option agreements, restricted stock awards and
long-term performance awards.
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(c) TERMINATION BY DONALD. Upon 60 days prior written notice to
the
Company (or such shorter period as may be
permitted by the Board), Donald may
voluntarily terminate his services under
this Agreement prior to the end of the
Term for any reason. If Donald voluntarily
terminates his services pursuant to
this subsection (c), he shall be entitled
to:
(1)
accrued Base Compensation through and including the
effective date of Donald's termination of services; and
(2) the
compensation, if any, that is or becomes payable in
accordance with the terms and conditions of any stock
option agreements, restricted stock awards and long-term
performance awards.
(d) TAX ON EXCESS PARACHUTE PAYMENTS. If any payment or benefit
(the
"Payments") which Donald is entitled to
receive from the Company would be
subject to the tax imposed by Code Section
4999 and reduction of the Payments to
the amount necessary to avoid the
application of such tax would result in Donald
retaining an amount that is greater than
the amount he would retain if the
Payments were made without such reduction
but after the application of such tax,
the Payments shall be reduced to the extent
required to avoid application of
such tax. Donald shall be entitled to
select the Payments to be reduced in
accordance with the preceding sentence.
Determination of whether the Payments
would result in the application of the tax
under Code Section 4999, and the
amount of the reduction that is necessary
so that no
