Voluntary Separation and Release Agreement - Merisant US Inc. and Carl W. Warshausky
VOLUNTARY SEPARATION AND RELEASE AGREEMENT
Carl W. Warschausky ("myself" or "I") and Merisant US, Inc. ("Merisant" or
the "Company") hereby enter into this Voluntary Separation and Release
Agreement, the terms of which are as follows:
1. RESIGNATION. I voluntarily resigned from employment with the Company
effective September 30, 2003.
2. SEPARATION PAY AND BENEFITS. Assuming I sign and do not revoke this
Voluntary Separation and Release Agreement ("Agreement"), the Company will pay
or provide to me:
- Severance payments totaling $475,000.00, less all applicable federal
and state withholdings. Such severance payments shall be made in
twenty-seven (27) equal semi-monthly installments on the 15th and last
day of each month following the effective date of your resignation.
- Three months of extended benefit coverage at employee rates for
medical, dental, vision, flexible spending, term life insurance
coverage and employee assistance services. I understand that health,
dental, vision and flexible spending account coverage during the
severance period will be credited against the COBRA coverage to which
I am entitled upon the termination of my employment; COBRA coverage
and benefit coverage will run concurrently during this period. After
the severance period has ended, I may elect COBRA coverage for the
remainder of the legally required COBRA period if I am then still
entitled to COBRA coverage.
- At my option, either (i) twelve months of outplacement assistance with
a firm designated by Company or (ii) a one-time payment of $14,000.
- A one-time education and financial planning payment of $1,000.
- I will be paid for any vacation days that I have earned but not yet
used in 2003. If I have used more vacation days than I have earned in
2003, the cash value of the extra vacation days will be deducted from
one of my severance checks. All vacation accrual will end as of
September 30, 2003.
- I will be vested in 49,581 SARs under the Tabletop Holdings, Inc.
Stock Appreciation Rights Plan, dated March 17, 2000. All such SARs
shall remain subject to the terms and conditions set forth in such
Plan applicable to vested SARs.
- I will be vested with respect to my potential award under the Merisant
Company Supplemental Long Term Incentive Plan, dated March 17, 2000,
as if I had been involuntarily terminated by the Company without cause
as of September 30,
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2003. I acknowledge and agree that Merisant Company has the right to
terminate the SLTIP and in such event, I would have no right to any
award thereunder. I further acknowledge and agree that even if the
SLTIP is not terminated, there is no guarantee of any award being paid
out to participants under the SLTIP.
I understand and acknowledge that all other Company benefits (including 401(k),
short-term disability, long-term disability, noncontributory life insurance,
etc.) will cease as of my termination date. All pay and other benefits under any
Company plan, policy or procedure (including those referred to above) which are
due and payable on account of my termination of employment or to which I may
continue to be entitled as a terminated employee will be paid according to the
terms of those plans, policies and procedures, as if my termination was an
involuntary termination by the Company without cause. I further acknowledge,
however, that the above-described individual severance pay and benefits cannot
be considered in the calculation of retirement plan benefits under any Company
plan.
3. RELEASE. In consideration for the severance pay and benefits described
above in Section 1 (collectively "the severance package"), I, on behalf of
myself and my heirs, executors, administrators, attorneys and assigns, hereby
waive, release and forever discharge the Company, together with the Company's
subsidiaries, shareholders, divisions and affiliates, whether direct or
indirect, its and their joint ventures and joint venturers (including their
respective directors, officers, employees, shareholders, partners and agents,
past, present and future), and each of its and their respective successors and
assigns (collectively, the "Releasees"), from any and all known or unknown
actions, causes of action, claims or liabilities of any kind that have been or
could be asserted against any of the Releasees arising out of or related to my
employment with and/or separation from employment with the Company or any of the
other Releasees, or any other occurrence up to and including the date of this
Agreement, including but not limited to:
(a) claims, actions, causes of action or liabilities arising under Title
VII of the Civil Rights Act, as amended, the Age Discrimination in
Employment Act, as amended ("ADEA"), the Employee Retirement Income
Security Act, as amended, the Rehabilitation Act, as amended, the Americans
with Disabilities Act, as amended, the Family and Medical Leave Act, as
amended, and/or any other federal, state, municipal or local employment
discrimination statutes or ordinances (including, but not limited to,
claims based on age, sex, attainment of benefit plan rights, race,
religion, national origin, marital status, sexual orientation, ancestry,
harassment, parental status, handicap, disability, retaliation and veteran
status); and
(b) claims, actions, causes of action or liabilities arising under any
other federal, state, municipal or local statute, law, ordinance or
regulation; and
(c) any other claim whatsoever including, but not limited to, claims for
severance pay (including but not limited to claims for severance pay and
benefits and/or enhanced severance pay and benefits under the Merisant US,
Inc. Severance Pay Plan), claims for
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attorney's fees, claims based upon breach of contract, wrongful
termination, defamation, intentional infliction of emotional distress,
tort, personal injury, invasion of privacy, violation of public policy,
negligence and/or any other common law, statutory or other claim whatsoever
arising out of or relating to my employment with and/or separation from
employment with the Company and/or any of the other Releasees,
but excluding (i) any rights arising under and claims for breach of this
Agreement, (ii) the filing of an administrative charge of discrimination, (iii)
any claims I may make under state workers' compensation or unemployment laws,
(iv) any rights to and claims for indemnification or as an insured under any D&O
insurance policy in connection with my service as an officer, director,
employee, plan trustee, plan administrator, agent or representative of Merisant
or any of its subsidiaries or affiliates, and/or (v) any claims which by law I
cannot waive.
4. COVENANT NOT TO SUE. I agree never to sue any of the Releasees or
become party to a lawsuit on the basis of any claim of any type whatsoever
arising out of or related to my employment with and/or separation from
employment with the Company and/or any of the other Releasees, other than a
lawsuit to challenge the validity of this Agreement under the ADEA. I further
acknowledge and agree that if I breach this section by suing the Company, then
(a) the Company shall be entitled to apply for and receive an injunction to
restrain my breach, (b) the Company shall not be obligated to continue the
offering or payment of the severance package to me, (c) I shall be obligated to
pay to the Company its costs and expenses in enforcing this Agreement and
defending against such lawsuit (including court costs, expenses and reasonable
legal fees), and (d) as an alternative to (c), at the Company's option, I shall
be obligated upon demand to repay to the Company all but $100 of the severance
package paid or made available to me under this Agreement that exceeds the
severance package to which I would have been entitled in the absence of this
Agreement I shall not be deemed to be in breach of this section if I am part of
a class in a class action against the Company so long as I am not actively
participating in such class action or, if I in good faith bring an action that I
believe falls within the exclusions set forth in clauses (i) through (v) or that
is otherwise outside the scope of the release given in Section 3 above.
5. COOPERATION AND NON-DISPARAGEMENT. After the termination of my
employment, at the request of the Company, I will reasonably cooperate with, and
assist the Company in any investigations, proceedings or actions relating to any
matters in which I was involved or had knowledge while employed by the Company
through October 31, 2003, and thereafter I will reasonably cooperate with such
activities to the extent that the same does not interfere or conflict with the
proper performance of my duties and responsibilities for any subsequent employer
and do not require any unreasonable amount of time or effort on my part. The
forgoing shall not require me to incur personal expense or use vacation time or
holidays or take unpaid time off from any subsequent employment to provide
cooperation and assistance to the Company. I will not to do or say anything,
directly or indirectly, which in any way disparages the Company's management,
products or business practices or otherwise reflects negatively upon the
Company, and the Releasees will not do or say anything, directly or indirectly,
which in any way disparages
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my management or job skills or performance or otherwise reflects negatively upon
me. The forgoing shall not preclude anyone from making statements believed to be
truthful when giving testimony, when responding to a subpoena, in any pleading
permitted hereunder, when being interviewed or questioned by a governmental
authority or regulatory agency, or other similar circumstances.
6. ADDITIONAL WAIVER. I further waive my right to any monetary recovery
should any federal, state or local administrative agency pursue any claims on my
behalf arising out of or related to my employment with and/or separation from
employment with the Company and/or any of the other Releasees.
7. NO REEMPLOYMENT OR INJURY. I further promise not to seek reemployment
with any of the Company or its subsidiaries unless personally solicited by one
of them. I also acknowledge that I have not suffered any on-the-job injury for
which I have not already filed a claim.
8. RETURN OF PROPERTY AND EXPENSE REIMBURSEMENT. Within seven (7)
calendar days after the termination of my employment, I will return to the
Company all Company property in my possession, custody or control, including but
not limited to confidential Company information, computer equipment, software
and credit cards. The Company will reimburse me for all reasonable expenses
through my separation date, provided I submit appropriate expense reports
detailing my expenses within thirty (30) days after my separation from
employment. The foregoing thirty-day submission requirement does not apply to
employee benefits such as medical benefits and my flexible spending account.
9. CONFIDENTIALITY. I further agree that I will keep confidential all
terms of this Agreement, including but not limited to the amount(s) and other
specifics of the severance package discussed herein, as well as any proprietary
information of the Company, except that I may make disclosures as I may
reasonably deem necessary or appropriate to my family, to any tax authority or
agency, and to my attorneys and financial and tax advisors. I may also make such
disclosures as I may reasonably deem necessary or appropriate when giving
testimony, when responding to a subpoena, in any pleading permitted hereunder,
when being interviewed or questioned by a governmental authority or regulatory
agency, or other similar circumstances. I acknowledge the Company's right to
enforce this confidentiality provision in any court of competent jurisdiction. I
further agree that if I breach this confidentiality provision, the Company will
be irreparably harmed as a matter of law and will be entitled to immediate
injunctive relief, plus its reasonable attorneys' fees incurred in enforcing
this provision, and, if the breach was wilful and material, I may be obligated
upon demand to repay to the Company all but $100 of the amounts paid or made
available to me under this Agreement.
10. TIME PERIODS. I acknowledge that I have been given at least 21 days to
consider this Agreement thoroughly and I was encouraged to consult with my
personal attorney, if desired, before signing below. I understand that I may
revoke this Agreement within seven days
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after signing it. Any revocation must be made in writing and submitted within
the seven-day period to Etienne Veber. I further understand that if I revoke
this Agreement, I am not entitled to receive the severance package described in
Section 2.
11. INDIVIDUAL AGREEMENT. I acknowledge that this Agreement has been
individually negotiated between the Company and me and is not part of or
otherwise connected with any voluntary or involuntary group termination program.
12. CONSIDERATION. I also understand that the severance package that I
will receive from the Company in exchange for signing and not later revoking
this Agreement is in addition to anything of value to which I already am
entitled to receive from the Company or any of the Releasees.
13. SEVERABILITY. I acknowledge and agree that if any term of this
Agreement is found, held or deemed by a court of competent jurisdiction to be
void, unlawful or unenforceable, that term shall be severed from this Agreement,
and the remainder of this Agreement shall continue in full force and effect.
14. GOVERNING LAW. This Agreement is deemed made and entered into in the
State of Missouri, and in all respects shall be interpreted, enforced and
governed under the laws of the State of Illinois. Any dispute under this
Agreement shall be adjudicated by a court of competent jurisdiction in the State
of Illinois.
15. KNOWING AND VOLUNTARY AGREEMENT. I further acknowledge and agree that
I have carefully read and fully understand all of the terms and conditions of
this Voluntary Separation and Release Agreement and that I knowingly and
voluntarily enter into this Agreement by signing below.
/s/ Carl W. Warschausky /s/ Etienne J. Veber
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Carl W. Warschausky On behalf of Merisant US, Inc.
Date: 9/30/03 Date: 9/30/03
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PLEASE RETURN THIS AGREEMENT TO ETIENNE VEBER. Any written revocation should
likewise be sent to Etienne Veber.
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