This EMPLOYMENT AGREEMENT dated as of April 5, 2007, is made by and between Merisant Company, a Delaware corporation (the "Company"), and Diana S. Ferguson (the "Executive").
WHEREAS, the Company desires to employ the Executive as Chief Financial Officer, Executive Vice President, Finance, of the Company, upon and subject to the terms and conditions set forth herein, and the Executive wishes to accept such employment
upon and subject to such terms and conditions; and
WHEREAS, it is contemplated that the Executive will commence her employment with the Company on April 16, 2007, or such other date as the parties may mutually agree (the "Effective Date").
NOW, THEREFORE, in consideration of the promises and mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by both parties, the parties hereby agree
1. Employment .
(a) The Company hereby employs the Executive and the Executive hereby accepts such employment upon and subject to the terms and conditions of this Agreement from
the Effective Date until the third annual anniversary of the Effective Date, unless the Executive92s employment is earlier terminated pursuant to Section 4 (such period referred to as the "Initial Term"). As of the conclusion of the Initial
Term, the period of employment shall automatically be extended on the same terms and conditions as set forth in this Agreement for successive one-year periods unless and until either: (i) a party gives the other party no less than sixty (60) calendar
days92 advance written notice prior to the end of the Initial Term or any such one-year extension period that the party will not further extend the Initial Term or such one-year extension period (as applicable), or (ii) either party terminates the Executive92s
employment in accordance with Section 4. The Initial Term and any and all extensions thereof (or partial extension in the event of an earlier termination pursuant to Section 4), if any, shall be collectively referred to as the "Employment Period.
(b) The Executive covenants, represents and warrants that: (i) the execution, delivery and complete performance of this Agreement by her does not and will not breach,
violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which the Executive is a party or by which she is bound; and (ii) she is not a party to or bound by any employment or services agreement, confidentiality
agreement, non-competition agreement, other restrictive covenant, or other obligation or agreement that would or could prohibit or restrict her from being employed by the Company or from performing any of her duties under this Agreement.
2. Position, Duties and Responsibilities . The Company
shall employ the Executive during the Employment Period as its Chief Financial Officer, Executive Vice President, Finance, reporting to the Chief Executive Officer, and the Executive shall serve in the same capacity for Merisant Worldwide, Inc., Merisant
US, Inc., Whole Earth Sweetener Company LLC and Merisant Foreign Holdings I, Inc. for no additional compensation. During the Employment Period, the Executive shall perform the duties assigned to her hereunder faithfully, with the utmost loyalty, to the
best of her abilities and in the best interests of the Company; shall devote her full business time, attention and effort to the affairs of the Company; and shall not engage in any other business activities (whether or not for gain, profit, or other pecuniary
advantage) or any other actions which she knows or reasonably should know could harm the business or reputation of the Company or any of its affiliates or other related entities. Subject to the powers, authority and responsibilities vested in the Company92s
Board of Directors (the "Board") and in duly constituted committees of the Board, the Executive shall have the authority and responsibility to direct the management and operation of the Company and shall also perform such other duties on behalf
of the Company and its affiliates and other related entities, consistent with her title and duties above, as the Board or Chief Executive Officer may from time to time authorize or direct; provided, the Executive may engage in activities involving professional,
charitable, educational, religious and similar types of organizations, speaking engagements, and management of personal investments, to the extent that such other activities do not interfere with the performance of Executive92s 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 provided in Section 5 hereof. Notwithstanding the forgoing, the Company agrees that the Executive shall be permitted to continue to
serve as a director on the boards of directors of Franklin Electric and Integrys Energy Group to the extent that such directorships do not interfere with the performance of Executive92s 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 provided in Section 5 hereof.
3. Compensation and Benefits .
(a) Base Salary . During the Employment Period, the Company shall pay to the Executive a base salary at the gross rate of $300,000 per annum, less required
and authorized withholding and deductions (the "Base Salary"), payable in installments in accordance with the Company92s executive payroll policy. The Base Salary shall be reviewed annually, at the same time as for other senior officers of the
Company, and increased, as determined by the Board in its discretion, but not decreased except as part of an across-the-board reduction in senior officer base salaries consistent with (on a percentage basis) reductions applicable to other senior officers
of the Company, and any such increased (or decreased) amount shall be the Executive92s "Base Salary" for all purposes hereunder thereafter.
(b) Signing Bonus . The Company shall pay to the Executive a bonus of $150,000, less required and authorized withholding and deductions, payable to the
Executive with the first installment of the Executive92s Base Salary immediately following the Effective Date.
(c) Incentive Bonuses . Subject to Section 4, commencing with calendar year 2007 and during each calendar year of the Employment Period thereafter, the
Executive also will be
eligible to receive an annual cash incentive bonus in accordance with the Company92s 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 not less than 100% (the "Annual Incentive Bonus"). Notwithstanding, the Executive92s Annual Incentive
Bonus attributable to calendar year 2007 shall be equal to not less than the gross amount of $150,000 ("Guaranteed Bonus"), to be paid at such time as the date on which the cash incentive bonus is paid to other executives of the Company but no later
than April 1, 2008 (less required and authorized withholding and deductions). The Executive also will be eligible to receive cash incentive bonuses in accordance with the Company92s 2007 Supplemental Incentive Plan with target bonus opportunities
of $150,000 in the aggregate (the "Supplemental Incentive Bonus"), and shall be eligible to participate in similar supplemental incentive bonuses in subsequent years, as determined by the Compensation Committee of the Board, in its sole discretion.
The Annual Incentive Bonus in respect of any fiscal year shall be paid in accordance with the procedures specified by the Compensation Committee, but in no event later than ninety (90) days after the end of each fiscal year.
(d) Share Appreciation Rights Plan . The Executive shall be deemed an eligible participant in the Merisant Worldwide, Inc. 2005 Share
Appreciation Rights Plan (the "2005 SAR Plan"), and the Executive will be granted 108,687.38 First Level Share Units, 111,102.60 Second Level Share Units and 165,043.75 Third Level Share Units under the 2005 SAR Plan. If the 2005 SAR Plan is terminated
and Merisant Worldwide or its successor adopts a restricted stock, stock option or other equity-based incentive plan, the Executive will receive an equivalent interest under any such successor plan.
(e) Employee Benefits . During the Employment Period, the Executive shall be eligible to participate in such executive compensation and deferred compensation
plans, such employee benefit plans (including group health, retirement and non-qualified retirement programs), and to receive such other fringe benefits and perquisites, as the Company may make available to senior executives generally, subject to all
present and future terms and conditions of such executive compensation and deferred compensation plans, benefit plans and other fringe benefits and perquisites. The Company reserves the right in its sole discretion to alter, suspend, amend, or discontinue
any and all of its employee and fringe benefits, benefit plans, policies and procedures, in whole or in part, at any time with or without notice, provided that the Company will not make any change to the Executive92s employee or fringe benefits that
it does not also make on a consistent basis for other senior executives of the Company.
(f) Vacation . The Executive shall receive four weeks of paid vacation per calendar year (prorated as appropriate for any partial calendar year).
Up to two (2) weeks per calendar year of earned but unused vacation time may be carried over from year to year.
(g) Business Expenses . The Company shall reimburse the Executive for all expenses and disbursements reasonably incurred by the Executive in the performance
of the Executive92s duties in accordance herewith during the Employment Period, 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 Company92s
policies established from time to time for senior
officers of the Company and conditioned upon receipt of appropriate documentation for such business expenses.
4. Termination .
(a) Notwithstanding anything to the contrary in this Agreement, the Executive92s employment shall automatically terminate upon the Executive92s death, the
Company may immediately terminate the Executive92s employment for Cause or Incapacity (as defined below) effective upon written notice to the Executive, and the Executive may voluntarily terminate her employment at any time for any reason effective
upon sixty (60) days92 prior written notice to the Company. In the event of any such termination, the Executive shall receive her Accrued Benefits and shall not be entitled to any other amounts from the Company. Executive92s "Accrued Benefits"
are (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 Employment Period, (v) any vested benefits, including performance awards under Company incentive plans, through the last
day of the Employment Period in accordance with the Company92s employee benefit plans or programs and executive compensation and deferred compensation plans, and (vi) any benefit continuation or conversion rights in accordance with the Company92s
employee benefit plans or programs. The Executive shall also be paid her Guaranteed Bonus if unpaid at the time and the effective termination date is a date after December 31, 2007. Executive92s Accrued Benefits shall be paid in a lump sum within
thirty days after the date of termination, except that Accrued Benefits payable pursuant to clause (ii), and any Guaranteed Bonus shall be paid when bonuses are paid to other senior executives, and amounts payable pursuant to clause (v) and (vi) shall
be paid in accordance with the applicable plan.
(i) "Incapacity" means such physical or mental condition of the Executive which renders and is expected to render the Executive incapable of performing
the essential functions of her position hereunder with or without reasonable accommodation for 180 calendar days (whether consecutive or not) within any 360-calendar-day period, as determined in good faith by the Board upon consultation with Executive92s
chosen physician, and, in its discretion, a physician selected by the Board. The Executive hereby agrees to submit to any reasonable medical examination(s) as may be recommended by the Company92s selected physician for the purpose of determining the
existence or absence of Incapacity. Executive also authorizes any physician, surgeon, or other person attending or caring for Executive to discuss Executive92s case fully and frankly with one or more members of the Board and to disclose to such member
or members of the Board any and all information the Board considers reasonable, necessary, or desirable to evaluate Executive92s condition. If Executive92s physician, surgeon, or other person attending or caring for Executive disagrees with a conclusion
reached by the Board that Executive92s physical or mental condition renders the Executive incapable of performing the essential functions of her position hereunder with or without reasonable accommodation, Executive92s physician and Board92s physician
shall jointly agree on the selection of an independent third physician to administer all reasonable medical examinations as such third-party physician deems required for the purpose of determining the existence or absence of
Incapacity. Executive hereby agrees to submit to all reasonable medical examination(s) recommended by such third-party physician. If such third-party physician
and Company92s physician both render their professional opinion that Executive suffers from Incapacity as defined in this paragraph, the Board shall be justified in concluding that Executive is so incapacitated and shall terminate Executive92s employment
under the provisions of this paragraph.
(ii) "Cause" means any of the following conduct by the Executive, as determined in good faith by the Board: (I) embezzlement, misappropriation
of corporate funds, fraud, or other material acts of dishonesty; (II) conviction of any felony, or of any misdemeanor involving moral turpitude, or entry of a plea of guilty or nolo contendere to any such felony or misdemeanor; (III) engaging in
illegal conduct or gross misconduct which causes financial or reputational harm to the Company or any of its affiliates or other related entities; (IV) refusal to perform or continued willful disregard of her duties and responsibilities (other than due
to any failure resulting from incapacity due to physical or mental illness or injury), (V) material breach of any written policy of the Company or a subsidiary, including the Company92s Code of Business Conduct and Ethics, as in effect or amended from
time to time; (VI) breach or threatened breach of Section 5 of this Agreement (including without limitation any provision of Exhibit A hereto); (VII) material breach of any other provision of this Agreement; or (VIII) violation of any statutory or common
law duty of loyalty to the Company or any of its affiliates or other related entities. Notwithstanding the foregoing, the Company shall not terminate the Executive92s employment pursuant to subparts (III), (IV), or (VII) of this Section 4(a)(ii) unless
the Company first gives the Executive notice in reasonable detail describing the basis for such "Cause" and a reasonable period of time, which shall in no event be less than thirty (30) days, to cure any such grounds for termination (provided that
no such notice and cure shall be required as to any such grounds that are not reasonably susceptible to a cure under the circumstances). For purposes of this Section 4(a)(ii), acts or omissions of the Executive shall not be considered "willful"
if done or omitted by the Executive in good faith and with a reasonable belief that such conduct is in the best interests of the Company.
(b) Notwithstanding anything to the contrary in this Agreement, the Company may terminate the Executive92s employment for any reason other than Incapacity or Cause
or for no reason at any time by written notice to the Executive, at which time the Executive shall be entitled to receive an amount ("Severance") equal to eighteen (18) months92 Base Salary either through salary continuation or a lump sum payment,
or combination thereof, at the Company92s discretion. If at the time of termination the Executive has health coverage, then the Executive shall be entitled to continuation of her health coverage for eighteen (18) months following the date of termination
with premiums charged to her at active employee rates, which coverage shall be concurrent with any COBRA benefits subject to all terms and conditions of the COBRA Act. The Executive shall receive a pro rata (based on the portion of the yea