EXHIBIT 10.18
CONTRACT COMPLETION AGREEMENT
AND GENERAL RELEASE
This Contract Completion Agreement
and General Release (“Agreement”) is entered into by
and among Merisant Company (“Merisant”) and Anthony J.
Nocchiero (“Nocchiero”).
WHEREAS, Nocchiero’s
employment with Merisant has terminated, and Nocchiero and Merisant
desire to enter into this Agreement to set forth the terms of
Nocchiero’s resignation, including provision of the payments
and benefits set forth herein to Nocchiero in recognition of his
services to Merisant; and
WHEREAS, Nocchiero and Merisant
currently are parties to an Employment Agreement dated July 18,
2005 and Exhibits thereto (hereinafter collectively referred to as
the “Employment Agreement”), a true and correct copy of
which is attached as Exhibit 1 hereto, and Nocchiero and Merisant
Worldwide, Inc. are parties to an Indemnification Agreement dated
July 18, 2005 (hereinafter referred to as the
“Indemnification Agreement”), a true and correct copy
of which is attached as Exhibit 2 hereto.
NOW, THEREFORE, in consideration of
the mutual promises and agreements contained herein and for other
good and valuable consideration, the sufficiency and receipt of
which are hereby acknowledged, the parties agree as
follows:
1.
Resignation . Nocchiero hereby voluntarily resigns
from any and all officer and director positions (if any) with
Merisant, Merisant US, Inc., a Delaware corporation and
wholly-owned subsidiary of Merisant (“Merisant US”),
Merisant Worldwide, Inc., a Delaware corporation and the parent of
Merisant (“Worldwide”) (Merisant, Merisant US and
Worldwide collectively referred to herein as the
“Company”) and any and all other subsidiaries and other
affiliates thereof, as applicable, which resignations are effective
at the close of business on March 5, 2007. Nocchiero’s
employment shall terminate at the close of business on March 31,
2007 (such date referred to herein as the “Separation
Date”), which for all purposes under the Employment Agreement
shall be a termination by Merisant without
“Cause.” Until the Separation Date, Nocchiero
shall perform such transition duties and responsibilities that the
Company may request from time to time (the “Transition
Period”). During the Transition Period, provided that
he does not revoke this Agreement in accordance with Paragraph 15
below, Nocchiero shall continue to receive his current pro rated
base salary and shall participate in applicable Company benefit and
incentive plans in which he currently participates in accordance
with their terms and conditions (as in effect or as amended from
time to time). The Company hereby accepts all such
resignations by Nocchiero.
2.
Severance Payment and Benefits . (a) Subject to
the terms of this Agreement, and provided that Nocchiero complies
with the terms of Paragraph 6 of the Employment Agreement (as
limited by the second sentence of Paragraph 5 of the Employment
Agreement) and does not revoke this Agreement in accordance with
Paragraph 15 below, Merisant shall pay Nocchiero the severance
payments and benefits set forth in Paragraph 4(b) of the Employment
Agreement, including all “Accrued Benefits” (as that
term is defined in Paragraph 4(a) of the Employment
Agreement). The parties acknowledge and agree that, pursuant
to Section 4(b) of the Employment Agreement:
(i)
Nocchiero’s
“Severance” (as that term is defined in Paragraph 4(b)
of the Employment Agreement), in the gross aggregate amount of
$279,716 shall be paid in a lump sum on April 2, 2007.
(ii)
Nocchiero will
receive a lump-sum payment under the Merisant Company 2006 Annual
Incentive Plan in the gross amount $172,200, payable on or about
March 15, 2007.
(iii)
Nocchiero will receive a lump-sum
payment under the Merisant Company 2006 Supplemental Incentive Plan
in the gross amount $325,275, payable on or about March 15,
2007.
(iv)
Nocchiero will receive a prorated
lump-sum payment under the Merisant Company 2007 Annual Incentive
Plan (the “2007 AIP”) based on his service from January
1, 2007 to the Separation Date and achievement of the Company-wide
financial targets adopted thereunder, which amount shall be
determined by the Compensation Committee of Merisant’s Board
of Directors pursuant to the 2007 AIP and shall be paid, subject to
the terms and conditions of the 2007 AIP, when bonuses under the
2007 AIP are payable in or about March 2008 to other Merisant
senior executives, provided that Nocchiero complies with his
obligations under this Agreement (including without limitation his
obligations under Paragraphs 5 and 6 of the Employment
Agreement).
(v)
Nocchiero shall be paid for his
earned and unused vacation through the Separation Date in
accordance with Merisant’s regular payroll
practices.
(vi)
Nocchiero shall be paid his earned
and unpaid base salary at his current base salary rate through the
Separation Date in accordance with Merisant’s regular payroll
practices.
(vii)
Merisant shall pay the premiums to
continue Nocchiero’s current coverage under Merisant’s
group dental insurance and vision insurance and EAP plans (as in
effect or amended from time to time), and $3,949 to be paid
in a lump sum on April 2, 2007 in full satisfaction of amounts to
be paid for group medical insurance coverage pursuant to Paragraph
3(d) of the Employment Agreement in lieu of premiums Nocchiero
would incur had he been enrolled in Merisant’s group medical
insurance (it being understood that Nocchiero presently has medical
coverage through another entity), from April 2007 through March
2008, which in the case of such dental and vision insurance
benefits is subject to, and in accordance with, the terms and
conditions of such plans and the Consolidated Omnibus Budget
Reconciliation Act of 1985 (“COBRA”). Nocchiero
shall be solely responsible for the full costs of any such
continued coverage beyond March 2008 pursuant to COBRA.
(viii)
Nocchiero shall submit all
documented business expense amounts for which he seeks
reimbursement on or before March 31, 2007, and shall not be
entitled to or receive any expense reimbursements for any amounts
incurred thereafter (and submitted thereafter in due
course).
(ix)
Nocchiero’s participation, if
any, in any employee benefit plans and policies of the Company
after the Separation Date will be determined in accordance with the
terms and conditions of such plans and policies, which plans,
policies, terms and conditions
2
the Company may amend, modify,
suspend or terminate in accordance with the amendment provision(s)
of such plans and policies or applicable law.
(x)
Nocchiero will be permitted to leave
a voice-mail message at his office land-line and cellular telephone
numbers and automatic e-mail reply message at his office e-mail
address until May 31, 2007 providing callers his personal contact
information.
(b)
All payments and benefits payable pursuant to the Employment
Agreement and this Agreement shall be reduced by any and all
required and authorized withholdings and deductions. Where
applicable, any and all such payments shall be sent to
Nocchiero’s last known address on Merisant’s records or
to such other address as Nocchiero shall indicate to Merisant in
writing.
(c)
This Agreement is intended to comply with the requirements set
forth in Section 409A of the Internal Revenue Code of 1986, as
amended, and any regulations and rulings thereunder (“Section
409A”), so as to avoid the imposition of excise taxes and
other penalties (“409A Penalties”) under Section 409A
with respect to any amounts or benefits payable hereunder. In
the event that any amounts or benefits payable hereunder would
subject Nocchiero to 409A Penalties, the Company and Nocchiero
shall cooperate diligently to amend the terms of this Agreement to
the minimum extent required to avoid, insofar as possible, such
409A Penalties while minimizing any material and adverse economic,
tax or accounting impact on the Company.
(d)
Except as set forth in Paragraph 2(a) above, Nocchiero is not
entitled to receive, and shall not receive, any incentive,
equity-based, severance, or other compensation or benefits of any
kind pursuant to the Employment Agreement, any other agreement,
plan, or policy, or otherwise. Without limiting the
generality of the foregoing in any way: (i) Nocchiero is not
entitled to, and shall not receive, any payment under the Merisant
Company 2007 Supplemental Incentive Plan; and (ii) Nocchiero is not
entitled to, and shall not receive, any amount under the Merisant
Worldwide, Inc. 2005 Share Appreciation Plan, and agrees that,
except as provided below, any and all Appreciation Awards
previously granted to him thereunder are null, void and terminated
in their entirety as of the Separation Date; provided, Nocchiero
shall be entitled to payment of his award in connection with a
covered transaction occurring within 180 days after the Separation
Date pursuant to the second sentence of Section 3 of the Merisant
Worldwide, Inc. 2005 Share Appreciation Award Letter dated December
5, 2005 (which entitlement is not waived under this
Agreement).
3.
Confidentiality, Non-Competition and Non-Solicitation;
Indemnification .
(a)
Without limiting the generality of Paragraph 17 of this Agreement
in any way, Nocchiero acknowledges and agrees that Paragraphs 5 and
6 and Exhibits A and C of the Employment Agreement shall remain in
full force and effect in accordance with their terms and that he
shall comply therewith. The parties acknowledge and agree
that this Agreement does not reduce, limit, or otherwise modify
Nocchiero’s obligations under Paragraphs 5 and 6 and Exhibits
A and C of the Employment Agreement. Nocchiero acknowledges
and agrees that Competitive Enterprises with respect to which the
provisions of Paragraph 6 of the Employment
3
Agreement apply include those
entities listed in Exhibit C of the Employment Agreement and those
additional entities listed on Exhibit 3 to this
Agreement.
(b)
Nocchiero and Merisant acknowledge and agree that the
Indemnification Agreement (Exhibit 2 hereto) shall remain in full
force and effect from and after the date hereof as well as after
the Separation Date, without any limitation by any other term or
provision of this Agreement.
4.
Comprehensive Release and Waiver of Claims .
(a)
Except for claims to enforce this Agreement, the Indemnification
Agreement and, respecting Nocchiero’s accrued and vested
benefits, any employee benefit plan in which he is a participant
immediately prior to the date hereof (collectively and
individually, Nocchiero’s rights under this Agreement, the
Indemnification Agreement and such benefit plans are referred to as
“Protected Rights”), Nocchiero and anyone claiming
through him or on his behalf agree to waive, release, acquit and
forever discharge Merisant and the other Company Released Parties
(as defined in Section 6 below) with respect to any and all claims,
whether currently known or unknown, that Nocchiero now has, has
ever had, or may ever have against any of the Company Released
Parties arising from or related to any agreement, act, omission, or
thing occurring or existing at any time prior to or on the date on
which Nocchiero signs this Agreement. Except for
Nocchiero’s Protected Rights, without otherwise limiting the
generality of the foregoing, the claims released by Nocchiero
hereunder include, but are not limited to: (i) all claims for
or related in any way to Nocchiero’s employment,
compensation, other terms and conditions of employment, or
termination from employment with the Company, including without
limitation all claims for payment under any Company incentive plans
and claims for severance pay and any other severance benefits; (ii)
all claims that were or could have been asserted b
