Retail Distribution Agreement - Merisant US Inc. and Heinz USA
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
transportation costs and operational costs for the movement of the Products from
Merisant to Heinz's distribution centers (or third party warehouses), in the
Territory. Freight costs incurred in the shipment of the Products from Heinz's
distribution centers (or third party warehouses) in the Territory to Heinz's
customers, storage and handling costs for the Products while stored at such
distribution centers or warehouses, and applicable state and local personal
property taxes attributable to Heinz's storage of the Products will be invoiced
directly to Merisant at Heinz's cost. Heinz's cost for such freight and
warehousing during the current term of this Agreement will be as set forth in
Exhibit "G" to this Agreement. Freight and warehousing costs shall be reviewed
by the parties no more frequently than once each calendar quarter, and the rates
may then be adjusted as the parties may mutually agree. Invoices for such
expenses shall be forwarded by Heinz to Merisant on a periodic basis with
mutually agreed support documentation to enable Merisant to perform an audit of
such expenses. Warehousing and freight costs incurred by Heinz will be
reimbursed monthly using the mutually agreed reconciliation process. However, if
during the term of the Agreement Heinz and Merisant mutually agree upon an
acceptable invoicing process, warehouse costs will thereafter be invoiced at the
time of receipt of the Products by Heinz at its warehouse facilities.
4.6 TAX. Heinz agrees to pay any sales, use, gross receipts or
other similar sales or use taxes with respect to any shipment of the Products.
If Heinz asserts a tax exemption, Heinz will furnish Merisant a valid exemption
certificate for each jurisdiction in which it is claiming an exemption.
4.7 TITLE; RISK OF LOSS. Title to the Products and risk of loss
shall pass to Heinz upon delivery of the Products to Heinz.
4.8 CREDIT RISK. The credit risk is assumed solely by Heinz.
Heinz, therefore, reserves the right to make independent credit decisions
regarding credit line extensions plus monitoring each customer's open account
exposure.
4.9 GENERAL ACCOUNTING MATTERS. Effective as of May 1, 2001,
the parties agree to the following general accounting matters (with the
understanding that Section 3.9 of the Original Agreement will continue in full
force and effect until May 1, 2001):
(a) Merisant will reimburse Heinz the actual small balance
write-offs taken by Heinz related to the Product. Such reimbursement request
will be supported by adequate documentation as mutually agreed by the parties.
(b) Except as provided to the contrary in Section 3.l(d) hereof,
Merisant will reimburse Heinz the actual write-offs taken by Heinz for spoilage
and unsaleable costs related to
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the Product. Such reimbursement request will be supported by adequate
documentation as mutually agreed by the parties.
(c) Merisant will reimburse Heinz for "unauthorized" deductions by
customers for the Products where Heinz is unable, after exercising all
reasonable efforts, to affect prompt collection thereof. Such deductions must
have been caused by a deficiency of Merisant or represent a unilateral
assessment by a customer of Heinz. Such reimbursement request will be supported
by adequate documentation as mutually agreed by the parties. To the extent that
Heinz is able to collect any "unauthorized" deductions from customers after
Merisant has reimbursed Heinz for such deductions, Heinz shall promptly remit
such amounts to Merisant.
5. WARRANTIES.
5.1 WARRANTIES. Merisant warrants to Heinz as follows: (i) that
title to the Products purchased by Heinz under this Agreement will be free and
clear of all liens and security interests; (ii) that all the Products will be
manufactured and packaged in compliance with applicable statutes and regulations
(including applicable Food and Drug Administration regulations requiring that
such Products not be adulterated or misbranded); and (iii) that each of the
Products purchased by Heinz under this Agreement will at the time of shipment to
Heinz conform to Merisant's then current specifications. THIS WARRANTY IS IN
LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO MERCHANTABILITY OR
FITNESS OF PRODUCTS FOR A PARTICULAR PURPOSE.
5.2 EXCLUSIVE REMEDY. Except as provided in Article 8, Heinz's
exclusive remedy and Merisant's exclusive liability for a breach of any warranty
provided in Section 5.1 for any shipment made by Merisant to Heinz under this
Agreement will be limited to the replacement of the nonconforming or defective
Products. Merisant will have a reasonable time to replace any nonconforming or
defective Products, including time to manufacture replacement Products.
5.3 CONSEQUENTIAL DAMAGES WAIVER. IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL OR CONSEQUENTIAL LOSSES OR
DAMAGES (INCLUDING, BUT NOT LIMITED TO ECONOMIC LOSS OR LOSS OF PROFITS BY
HEINZ) SUFFERED OR INCURRED AS A RESULT OF OR IN CONNECTION WITH ANY BREACH OF
THIS AGREEMENT OR ANY TORT (INCLUDING, BUT NOT LIMITED TO, STRICT LIABILITY OR
NEGLIGENCE) COMMITTED BY A PARTY IN CONNECTION WITH THIS AGREEMENT.
6. TRADEMARKS AND TRADE NAMES.
6.1 TRADEMARKS. All trademarks, trade names, logos, copyrights
and other designations used or adopted by Merisant in connection with the
Products, including without limitation Equal(R), NutraSweet(R), and the
NutraSweet(R) logo unit (the "Trademarks") will at all times be and remain the
property of Merisant, its affiliated companies or third parties with whom
Merisant or its affiliated companies have a license. Heinz shall not in any way
dispute or impugn the validity of the Trademarks, Merisant's, its affiliated
companies or such third parties' sole ownership of the Trademarks, or such
parties' right to use and control the use of the Trademarks during the term of
this
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Agreement and thereafter; nor will Heinz do or permit to be done any action or
thing which will in any way impair the rights of Merisant or such third parties
in and to the Trademarks. Heinz acknowledges that its use of the Trademarks will
not create in it any right, title or interest in the Trademarks and agrees that
all use of the Trademarks will be for the benefit of Merisant and/or such third
parties.
6.2 USE. Heinz may use the Trademarks only in connection with
the services to be provided hereunder and only in the manner and style approved
by Merisant in writing. Heinz will not use the Trademarks as part of its company
name or in connection with any product other than the Products. Heinz agrees not
to alter, deface, remove, cover up, or mutilate any of the Trademarks or any
serial number, lot code number or other designation which may be attached or
affixed to the Products or any packaging materials.
6.3 NOTIFICATION. Heinz will: (i) notify Merisant in writing of
any infringing uses, applications for registration, or registrations of the
Trademarks or marks similar thereto of which it has actual knowledge; (ii)
execute any documentation requested by Merisant relating to the Trademarks; and
(iii) comply with all instructions of Merisant with regard to the use and
display of the Trademarks.
6.4 ACTIONS. Heinz acknowledges that only Merisant will have
authority to institute actions or proceedings to prevent any infringement,
imitation, unauthorized use, or misuse of any of the Trademarks and agrees to
provide Merisant with reasonable assistance in such proceedings at Merisant's
request.
6.5 SIMILAR MARKS. Heinz agrees not to adopt any trademark,
trade name, mark, logo or symbol which is similar to or likely to be confused
with any of the Trademarks. Heinz will not use any other trademark, word,
symbol, letter or design in combination with any of the Trademarks.
6.6 LITERATURE. Merisant will have the right to approve all
sales literature, advertising and promotional materials, manuals and related
materials prepared and/or used by Heinz in connection with the Products.
6.7 EFFECT OF TERMINATION. Upon termination of this Agreement
for any reason, Heinz shall promptly cease all use of the Trademarks, provided
that Heinz may continue to use the Trademarks in its promotion and sale of the
Products held in inventory and not repurchased by Merisant pursuant to the
provisions of Section 9.5 hereof.
6.8 PACKAGING. The Products shall be resold only in their
original packages. Heinz shall not, either directly or indirectly, relabel,
repackage, mark, or assist any other entity to relabel, repackage, or mark the
Products except for such repackaging as may be necessary to refurbish damaged
Products with the prior approval of Merisant.
7. COMPLIANCE WITH APPLICABLE LAW.
Each party warrants to the other that it shall comply with all
applicable laws and regulations and governmental orders and decrees applicable
to the purchase, promotion and sale by Heinz of the Products, including without
limitation applicable Food and Drug Administration regulations.
8. INDEMNIFICATION.
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8.1 HEINZ. Heinz shall indemnify, defend and hold Merisant
harmless against all costs, claims, suits, demands, judgments, expenses
(including reasonable attorneys' fees) or damages resulting from or arising out
of the following: (i) any breach by Heinz of any of its warranties, duties or
obligations under this Agreement; and (ii) the error, omission, negligence or
willful misconduct of Heinz, its employees or agents, except to the extent any
such damage resulted from or was contributed to by Merisant, its employees or
agents.
8.2 MERISANT. Merisant shall indemnify, defend and hold Heinz
harmless against all costs, claims, suits, demands, judgments, expenses
(including reasonable attorneys' fees) or damages resulting from or arising out
of the following: (i) any breach by Merisant of any of its warranties, duties or
obligations under this Agreement; (ii) the error, omission, negligence or
willful misconduct of Merisant, its employees or agents; (iii) any claim of
infringement or award of royalties of profits from the use of the intellectual
property of others with respect to the Products; and (iv) any allegation of
unfair competition resulting from the similarity of the Products to the products
of third parties, except to the extent any such damage resulted from or was
contributed to by Heinz, its employees or agents.
9. DURATION AND TERMINATION.
9.1 TERM. The term of this Agreement will commence as of the
date hereof and will thereafter remain in effect until terminated as set forth
herein. Either party may terminate this Agreement without liability by giving
the other party at least one hundred and eighty (180) days prior written notice
of its intention to do so.
9.2 BREACH. In the event of a material breach of this Agreement
by a party, the other party may terminate this Agreement upon not less than
thirty (30) days' prior written notice, provided that the breach has not been
cured within such thirty (30) day period.
9.3 OTHER EVENTS. Either party may terminate this Agreement
upon written notice to the other in the event of any of the following:
(a) The insolvency, voluntary or involuntary bankruptcy,
receivership, liquidation, dissolution or winding-up of the other party; or
(b) The continuation of any event of force majeure preventing
performance by the other party, as described in Article 14 hereof, for a period
of three (3) consecutive months or longer.
9.4 CONTINUING RIGHTS. Upon expiration or termination of this
Agreement for any reason, the parties will have no further rights, liabilities,
duties or obligations under this Agreement, except for any rights, liabilities,
duties or obligations under Articles 6, 8, 9, 15 or 16 of this Agreement, and
any rights, liabilities, duties or obligations which arise prior to such
expiration or termination, and neither party shall be entitled to any other
compensation of any kind.
9.5 REPURCHASE OF INVENTORY. Upon the date of expiration or
termination of this Agreement for any reason, Merisant will have the option to
purchase at Heinz's original cost the remaining inventory of the Products that
are good and salable. Promptly following expiration or
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termination, pursuant to Merisant's direction and at no cost or expense to
Merisant, Heinz will return all price lists, catalogs, samples, advertising,
promotional or other materials for the Products in Heinz's possession, except
for such materials used in the sale of remaining inventories of the Products not
purchased by Merisant.
10. RELATIONSHIP OF PARTIES.
The relationship of Merisant and Heinz under this Agreement is
that of seller and purchaser, and nothing contained in this Agreement and no
action taken by either party to this Agreement will be deemed to: (i) constitute
either party or any of such party's employees, agents or representatives to be
an employee, agent or representative of the other party, or (ii) create any
partnership, joint venture, association or syndicate among or between the
parties, or (iii) confer on either party any express or implied right, power or
authority to enter into any agreement or commitment, express or implied, or to
incur any obligation or liability on behalf of the other party.
11. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Illinois, excluding the
conflict of laws provisions thereof.
12. NOTICES.
Any notice under this Agreement will be valid and effective only if
given by written instrument which is personally delivered or sent by facsimile,
or registered or certified mail, postage prepaid, addressed as follows:
To Heinz Heinz U.S.A.,
a division of H.J. Heinz Company
1062 Progress Street
Pittsburgh, Pennsylvania 15212
Facsimile: (412) 237-3522
Attn: President
Heinz U.S.A., Retail
To Merisant Merisant Company
10 South Riverside Plaza, Suite 850
Chicago, Illinois 60606
Facsimile: (312) 840-5355
Attn: Vice President of North America
With a copy to: Merisant Company
1 North Brentwood Blvd., Suite 510
Clayton, MO 63105
Facsimile: (314) 657-1024
Attn: Legal Department
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Any notice, claim, demand, request or other communication given as provided in
this Article 11, if given personally, will be effective upon delivery; if given
by facsimile, will be effective one (1) day after transmission; and, if given by
mail, shall be effective ten (10) days after deposit in the mail. Either party
may change the address at which it is to be given notice by giving written
notice to the other party as provided in this Article 11.
13. ASSIGNMENT.
13.1 MERISANT. Merisant may assign this Agreement in whole or in
part upon notice to Heinz to an affiliate of Merisant, or as part of a sale of
all or substantially all of the stock or assets of the tabletop sweetener
product business. In the event of a sale of all or substantially all of the
stock or assets of the tabletop sweetener product business, Heinz shall have the
right to terminate this Agreement upon providing written notice of its intention
to terminate not less than ninety (90) days before the date of termination. Such
notice of termination may not be given by Heinz prior to the date of the closing
of the sale.
13.2 HEINZ. Heinz may not assign or otherwise transfer (whether
by operation of law or otherwise) this Agreement in whole or in part to any
entity without the express prior written consent of Merisant, except to an
affiliate or wholly-owned subsidiary of Heinz. Should Heinz desire to assign or
otherwise transfer any of its obligations hereunder to a subdistributor, broker,
or sales agent, Merisant will have the right to remove from the obligations of
Heinz hereunder the customers proposed to be serviced by the subdistributor,
broker, or sales agent, and either provide the Products directly to such
customers, or use the services of a third party. Merisant acknowledges that
Heinz may utilize the services of brokers in the performance of its duties and
obligations hereunder, and that such use will not be a breach of this Article
13.2.
14. FORCE MAJEURE.
Neither party will be liable to the other for any loss or injury
incurred or damages sustained by the other party due to a failure on the part of
the party to perform under this Agreement (except for Heinz's obligation to make
payment under Section 4.2 of this Agreement), if such failure to perform is a
result of war, riot, labor strike or lock-out, shortages, fire, flood, wind,
storm or other Act of God, governmental control or regulation or other similar
condition beyond the party's reasonable control.
15. CONFIDENTIALITY.
The terms of the Confidentiality Agreement entered into by the
parties in October, 1997, a copy of which is attached to this Agreement as
Exhibit "H" shall apply to the parties in connection with this Agreement, and
will remain in effect during the term of the Agreement and after the expiration
or termination of this Agreement for any reason.
16. DISPUTES AND ARBITRATION.
16.1 ARBITRATION. Any dispute, controversy or claim arising from
or relating to this Agreement shall be resolved only by arbitration, which may
be commenced at any time by notice
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given to either party. Arbitration shall be conducted pursuant to the Commercial
Arbitration Rules of the American Arbitration Association then in force and
effect.
16.2 VENUE. The venue of the arbitration shall be Chicago,
Illinois.
16.3 FEES. Each party shall pay its own fees and expenses
(including without limitation attorneys' fees and expenses) incurred in
connection with the arbitration proceeding. Common expenses of the arbitration
proceeding (such as the fees and expenses of the arbitrators and expenses of
administration) shall be born by the parties in such amounts or proportions as
the arbitrators may determine.
16.4 FINAL DECISION. The decision of the arbitrators shall be by
majority vote. Any arbitral award shall be final and binding on the parties, and
judgment upon any arbitral award may be entered and enforced by any court or
judicial authority of competent jurisdiction.
16.5 INTERIM MEASURES. Notwithstanding the foregoing, in the
event interim judicial relief is necessary prior to rendition of any arbitral
award in order to avoid irreparable injury to either party, then such party may
seek interim measures of protection, including without limitation orders of
injunction, specific performance or other equitable relief, from any court of
competent jurisdiction. The provisions of this Section 15.5 shall not be deemed
to preclude the arbitrators from awarding similar or other interim relief or
entering interim arbitration awards.
17. ENTIRE AGREEMENT; WAIVER.
17.1 ENTIRE AGREEMENT. This Agreement sets forth the entire and
final agreement and understanding of the parties with respect to the subject
matter of this Agreement. Any and all prior agreements or understandings,
whether written or oral, with respect to the subject matter of this Agreement,
are hereby terminated. This Agreement may not be modified or amended except by
an instrument in writing executed by the parties to this Agreement. Any terms or
conditions which may be different from, or in addition to those agreed to and
set forth in this Agreement, are expressly objected to and will not be binding
upon either party unless mutually agreed to in writing.
17.2 WAIVER. No waiver, forbearance or failure by any party of
its right to enforce any provision of this Agreement will constitute a waive or
estoppel of such party's right to enforce any other provision of this Agreement
or such party's right to enforce such provision in the future.
IN WITNESS WHEREOF, Merisant and Heinz, by their respective duly
authorized officers or representatives, have executed and delivered this
Agreement on the date first above written.
MERISANT US, INC. HEINZ U.S.A., A DIVISION OF
H.J. HEINZ COMPANY
By: /s/ Daniel L. Beck By: /s/ Gregg Newcombe
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(signature) (signature)
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<Page>
Daniel L. Beck Gregg Newcombe
--------------------------- ----------------------------
(name) (name)
VP/GM North America VP Sales, HUSA
--------------------------- ----------------------------
(title) (title)
12