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EXHIBIT 10(iv)
MANAGEMENT CONTINUITY AGREEMENT
MANAGEMENT CONTINUITY AGREEMENT by and between Xxxxxxx Purina Company
("Xxxxxxx"), a Missouri corporation, and Xxxxx X. Xxxxxxxx (the "Executive").
WITNESSETH:
WHEREAS, the Board of Directors, as defined herein, in action taken at meetings
held on November 16, 2000 and January 15, 2001, has authorized Xxxxxxx to enter
into a Management Continuity Agreement (the "Agreement") with certain key
executives of Xxxxxxx; and
WHEREAS, the Board of Directors believes it is imperative, in the event of an
attempted Change in Control, as defined herein, that certain key executives
continue employment with Xxxxxxx or one of its Affiliates, and that Xxxxxxx be
able to receive and rely upon the advice of such executives on the best
interests of Xxxxxxx and its shareholders, without concern that the executives
may be distracted by uncertainties as to their own position or security; and
WHEREAS, the Executive is a key executive of Xxxxxxx and has been selected by
the Board of Directors to be offered this Agreement; and
WHEREAS, the Board of Directors believes that the payments which may be made
under this Agreement constitute additional reasonable compensation for services
to be rendered by the Executive in connection with a Change in Control;
NOW, THEREFORE, for and in consideration of the premises and other good and
valuable consideration, Xxxxxxx and the Executive agree as follows:
ARTICLE 1. DEFINITIONS: For purposes of this Agreement, the following terms
shall have the meanings set forth below:
a. AFFILIATE: An Affiliate shall mean any Person who, directly or
indirectly or through one or more intermediaries, Controls another
Person, is Controlled by another Person, or is under common Control
with another Person.
b. BASE COMPENSATION: The Base Compensation shall mean the sum of:
(i) the Executive's monthly gross salary, whether paid or deferred, for
the last full month preceding the Executive's Qualifying Termination or
for the last full month preceding the Change in Control, whichever is
greater;
(ii) a one (1) month portion (as if earned ratably over the relevant
period) of the Executive's most recent annual (or, if applicable, pro rata
portion of the annual)
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bonus, whether paid or deferred, preceding the Executive's Qualifying
Termination or the Change in Control, whichever is greater; and
(iii) the greater of the following:
(A) a one (1) month portion (as if earned ratably over the relevant
period) of the Executive's bonus award (base and peer group award,
if applicable) most recently made at the end of the full term of an
Incentive Plan prior to a Change in Control, whether paid or
deferred;
or
(B) a one (1) month portion (as if earned ratably over the relevant
period) of any amounts attributable to the Executive under all of
the Incentive Plans in effect at the time of the Change in Control,
calculated through the last full month preceding the Change in
Control or, if applicable, preceding the Executive's Qualifying
Termination, whichever is greater.
c. BENEFICIAL OWNERSHIP: Beneficial Ownership shall mean "beneficial
ownership" as defined in Rule 13d-3 promulgated under Section 13(d) of
the Exchange Act.
d. BOARD OF DIRECTORS: The Board of Directors shall mean the Board of
Directors of Xxxxxxx.
e. BUYER: A Person which, alone or with its Affiliates, purchases the
business or businesses of Xxxxxxx and its Affiliates in a transaction
or transactions described in Article 2(c).
f. CHANGE IN CONTROL: A Change in Control shall mean an occurrence set
forth in Article 2.
g. CODE: The Code shall mean the Internal Revenue Code of 1986, as
amended.
h. COMMON STOCK: Common Stock shall mean the $.10 par value common stock of
Xxxxxxx, and such other Xxxxxxx voting stock that may be issued, prior to
a Change in Control, in lieu of, or in addition to, the Common Stock, as a
result of (i) a merger or consolidation of Xxxxxxx, (ii) the creation of a
class or classes of tracking stock, or (iii) the reclassification of any
of the foregoing.
i. CONTINUING DIRECTOR: A Continuing Director shall mean a member of the
Board of Directors as of the date hereof, and any other director who
was appointed or nominated for election to the Board of Directors by a
majority of the Continuing Directors then in office.
j. CONTROL: Control (including the terms "controlling", "controlled by"
and "under common control with") shall mean the possession of a power,
directly or indirectly, whether through ownership of securities, by
contract or otherwise:
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(i) to elect a majority of the Board of Directors of a Person; or
(ii) to direct the business, management and policies of a Person or direct
the sale of a substantial portion of its assets.
k. DISABILITY: A Disability shall mean a condition where the Executive
suffers a complete inability to perform the Executive's work
assignments because of injury or sickness, and such inability is
expected to continue indefinitely. To determine Disability, Xxxxxxx
shall rely on a determination with respect to disability of the
Executive made under the Purina Benefit Association Long Term
Disability Plan or any successor disability plan. If no such
determination has been made within seven (7) months after the
Executive's last day worked, or if the Executive is not enrolled in any
such Long Term Disability Plan, the determination shall be made by a
licensed physician jointly selected by Xxxxxxx and the Executive. Fees
and expenses of any physician, and all costs of examinations of the
Executive, shall be paid by Xxxxxxx.
l. DISCOUNT RATE: The Discount Rate shall mean the "applicable interest
rate" (and the mortality tables, if applicable) prescribed under
Section 417(e)(3) of the Code at the time of the Executive's Qualifying
Termination.
m. ENERGIZER SPIN-OFF: The Energizer Spin-off shall mean the distribution
by Xxxxxxx on April 1, 2000, of all of the issued and outstanding
shares of stock of Energizer Holdings, Inc. on a pro rata basis to the
holders of Common Stock.
n. EXCHANGE ACT: The Exchange Act shall mean the Securities Exchange Act
of 1934, as amended.
o. GROUP: A Group shall mean "group" as defined in Section 13(d)(3) of
the Exchange Act.
p. INCENTIVE PLAN: An Incentive Plan shall mean any cash bonus plan with a
term of more than two (2) years but less than five (5) years, including
the 1996, 1998 and 2000 Leveraged Incentive Plans (whether or not subject
to the terms of the Xxxxxxx Purina Company Executive Incentive
Compensation Plan) and all similar plans adopted during the term of this
Agreement.
q. 1999 MANAGEMENT CONTINUITY AGREEMENT: The 1999 Management Continuity
Agreement shall mean the agreement currently in effect dated May 17,
1999 between the Executive and Xxxxxxx, the terms of which entitle the
Executive to certain "severance benefits" (as that term is defined in
Article 4 thereof) (the "1999 SEVERANCE BENEFITS") upon the Executive's
"Qualifying Termination" (as that term is defined in Article 1t of the
1999 Management Continuity Agreement) by March 31, 2003, as a result of
the Energizer Spin-off.
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r. OVERLAPPING PAYMENT PERIOD. An Overlapping Payment Period shall mean that
portion of the Payment Period, as defined in Article 1s hereof, which
coincides with all or any portion of the "Payment Period" as that term is
defined in Article 1r of the 1999 Management Continuity Agreement.
s. PAYMENT PERIOD: The Payment Period shall mean the period commencing
with the first day of the month following the month in which a
Qualifying Termination occurs and continuing for thirty-six (36) months
thereafter.
t. PERSON: Person shall mean any natural person, firm, individual, company,
corporation, partnership, joint venture, joint stock company, limited
liability company, business trust, trust, association or any other
business organization or entity, whether incorporated or unincorporated,
or any division thereof.
u. QUALIFYING TERMINATION: A Qualifying Termination shall mean the
Executive's termination of employment, within three (3) years after a
Change in Control, from Xxxxxxx, a Buyer or an Affiliate or a Successor of
the foregoing; provided that, a Qualifying Termination shall not be deemed
to occur on account of:
(i) the Executive's transfer of employment at any time during the
term of this Agreement between any two Persons comprised of
Xxxxxxx or its Successor, and any of their Affiliates, provided
that, upon such a transfer after a Change in Control, the
Executive has Substantially the Same Employment after such
transfer as immediately prior to the Change in Control; or
(ii) the Executive's being employed by a Buyer or any Affiliate or
Successor of such Buyer, in connection with a Change in Control
described in Article 2(c), provided that, during the term of
this Agreement, the Executive has Substantially the Same
Employment as immediately prior to the Change in Control; or
(iii) the Executive's death; or
(iv) the Executive's voluntary termination of employment with
Xxxxxxx, a Buyer or an Affiliate or Successor of the foregoing
within three (3) years after such Change in Control, if the
Executive has, at all times, Substantially the Same Employment
as immediately prior to the Change in Control.
It is expressly understood that Executive shall in no event be deemed to
have waived his or her right to Severance Benefits under Article 4 of this
Agreement if Executive remains employed during or after a time during
which he or she ceased to have Substantially the Same Employment after a
Change in Control, as long as
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the Executive incurs a termination of employment within three (3) years
after such Change in Control and such termination of employment is not a
termination as described in Article 1 u. (i), (ii) or (iii).
v. RETIREMENT PLAN: The Retirement Plan shall mean the Xxxxxxx Purina
Retirement Plan, as amended, or any successor retirement plan adopted
by Xxxxxxx.
w. SPIN-OFF: A Spin-off shall mean a spin-off, reverse spin-off or similar
type of transaction, including a management-led leveraged buyout,
resulting in the disposition to Xxxxxxx'x shareholders, or to a
management-led leveraged buyout group, of all or substantially all of the
stock and/or assets of any business conducted by Xxxxxxx and/or its
Affiliates.
x. SUBSTANTIALLY THE SAME EMPLOYMENT: Substantially the Same Employment
shall mean employment where there is, at all times during the period of
up to three (3) years after a Change in Control compared to immediately
prior to a Change in Control:
(i) no reduction in the Executive's base salary and no less than
such annual increases in the Executive's base salary as were
customary with respect to the Executive prior to the Change in
Control; and
(ii) no reduction in the annual bonus award opportunity below the
performance target applicable to the Executive, for both
personal and company or business unit performance, unless a
substantially equivalent arrangement (embodied in an ongoing
substitute or alternative annual bonus award plan) has been made
with respect to such annual bonus award, and such arrangement
provides benefits not materially less favorable to the Executive
(both in terms of the amount of benefits provided and the level
of the Executive's participation relative to other
participants); and
(iii) no substantial reduction in Executive's participation in any
executive incentive compensation plans in which Executive
participated immediately before the Change in Control, including
but not limited to the Xxxxxxx Purina Company Executive
Incentive Compensation Plan, any Incentive Plan, and the 1988,
1996 and 0000 Xxxxxxx Xxxxxx Company Incentive Stock Plans (or
any substitute or successor plans adopted prior to the Change in
Control), unless a substantially equivalent arrangement
(embodied in an ongoing substitute or alternative plan) has been
made with respect to such executive incentive compensation
plans, and such arrangement provides benefits not materially
less favorable to the Executive (both in terms of the amount of
benefits provided and the level of the Executive's participation
relative to other participants); and
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(iv) no substantial reduction in employee pension benefits (including
plans qualified under Section 401(a) of the Code and
non-qualified plans) and welfare and fringe benefits applicable
to the Executive, so that the benefit programs for which the
Executive is eligible are, in the aggregate, substantially
equivalent; and
(v) no reduction of a substantial nature in the Executive's duties
or responsibilities, or assignment of new duties inconsistent
with the Executive's skills, education and experience; and
(vi) no substantial reduction in the Executive's access to
administrative support services; and
(vii) no requirement that any of the Executive's offices be located
more than fifty (50) miles from the location of such offices
immediately prior to a Change in Control; and
(viii) no increase in the Executive's required business travel away
from any of his or her offices that would be substantially
inconsistent with the Executive's business travel obligations
immediately prior to a Change in Control.
y. SUCCESSOR: A Successor shall mean (i) the continuing, surviving or
successor Person which is created, or remains in existence, upon the
merger or consolidation of two Persons; or (ii) a Person which otherwise
succeeds (by operation of law, contract or otherwise) to the rights,
duties or interests of another Person.
z. SUPPLEMENTAL PLAN: The Supplemental Plan shall mean the Xxxxxxx Purina
Supplemental Retirement Plan, as amended, or any successor supplemental
retirement plan adopted by Xxxxxxx.
ARTICLE 2. CHANGE IN CONTROL: A Change in Control will occur if there is:
a. Such a change in the membership of the Board of Directors that
Continuing Directors shall have ceased (for any reason) to
constitute at least a majority of the Board of Directors; or
b. An acquisition by any Person or Group, or by a Person and its
Affiliates or by a Group and Affiliates of members of such Group, of
the Beneficial Ownership of fifty percent (50%) or more of the
then-outstanding Common Stock of Xxxxxxx (other than acquisitions by
Xxxxxxx, a Xxxxxxx Affiliate, or any trustee or other fiduciary
holding Xxxxxxx Common Stock pursuant to the terms of any Xxxxxxx
benefit plan); or
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c. Either of the following: (i) a sale of all or substantially all
of the assets of Xxxxxxx in a transaction subject to the
provisions of Section 351.400 Revised Statutes of Missouri; or
(ii) a sale or other disposition to a Person or a Group, or to a
Person and its Affiliates or to a Group and Affiliates of members
of such Group, (excluding a sale or disposition to an Affiliate
or Affiliates of Xxxxxxx), of all or substantially all of the
assets of those businesses of Xxxxxxx and its Affiliates which,
in the aggregate, accounted for (as of the end of the fiscal
quarter ending coincident with or immediately preceding such
sale) all or substantially all of Xxxxxxx'x operating profit; or
d. A merger, share exchange, reorganization or consolidation of
Xxxxxxx with any other Person other than an Affiliate of Xxxxxxx
(a "Business Combination"), unless the voting power of the Common
Stock outstanding immediately before such Business Combination
continues to represent, immediately following such Business
Combination (either by remaining outstanding or by being
converted into voting securities of the Person surviving after
such Business Combination or its Affiliate), more than 50% of the
combined voting power of the then-outstanding voting securities
of such surviving Person (or its Affiliate) including (if
applicable) Xxxxxxx; or
e. A finding by a majority of the Continuing Directors that a sale,
disposition, merger or other transaction or event designated by such
Continuing Directors in their sole discretion shall, under this
Agreement, constitute a Change in Control with respect to the
Executive.
Notwithstanding the foregoing, in no event shall a Spin-off be deemed to
constitute a Change in Control.
ARTICLE 3. OPERATION OF AGREEMENT: This Agreement shall not create any
obligation on the part of Xxxxxxx or its Affiliates, or the Executive, to
continue the Executive's employment relationship. Anything in this Agreement to
the contrary notwithstanding, the Executive shall not be entitled to Severance
Benefits, as defined below, under this Agreement unless and until there has been
a Change in Control and the Executive has had a Qualifying Termination. Except
as hereinafter provided, this Agreement shall not affect any other benefit
program (as such programs may be amended) applicable to the Executive; provided,
that, by execution of this Agreement, the Executive hereby waives any and all
claims to benefits under any termination or severance plan or similar severance
arrangement offered by Xxxxxxx or its Affiliates to all or some of their
employees during the term of this Agreement, that would otherwise be payable to
the Executive on account of, or coincident with, a Change in Control and
termination of employment, other than the 1999 Management Continuity Agreement,
which shall remain in full force and effect through March 31, 2003, unless
otherwise terminated in accordance with its terms.
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ARTICLE 4. SEVERANCE BENEFITS: Subject to the provisions of Article 4(f) hereof,
if the Executive remains in the employ of Xxxxxxx or one of its Affiliates until
a Change in Control has occurred, then upon the Executive's Qualifying
Termination within three (3) years after a Change in Control, the Executive
shall be entitled to the following benefits ("Severance Benefits"), subject to
withholding of any federal, state or local taxes which, in the opinion of
counsel for the payor of the Severance Benefits, are required to be withheld,
and further subject to Article 5 of this Agreement:
a. Payment in a lump sum in cash, within sixty (60) days of the Executive's
Qualifying Termination, of an amount equal to the Executive's Base
Compensation multiplied by thirty-six (36); and
b. Continuation, from the date of the Executive's Qualifying Termination and
continuing during the Payment Period, of life, health, accident, disability
and fringe benefits no less favorable than those provided to the Executive
under life, health, accident, disability and fringe benefit plans and
programs in effect immediately prior to the Change in Control (including, but
not limited to, the Partnership Life Plan, Split Dollar Second to Die
Program, Executive Life Plan, Purina Health Care Plan, Executive Health Plan,
Voluntary Personal Accident Plan, Long Term Disability Plan, Executive Long
Term Disability Plan, Financial Planning Program, Xxxxxx Online Program,
Group Personal Excess Liability Plan, Company Car Program and the Company Car
Allowance Program), subject to all terms and conditions of such plans
immediately prior to such Change in Control including, but not limited to,
provisions regarding the extent and duration of spouse and dependent
coverage, and subject to payment of premiums, if any, charged at rates no
greater than those paid by active employees under the rate structure in
effect immediately prior to the Change in Control; and further provided, that
such health benefits shall not terminate at the end of the Payment Period but
shall continue for the lifetime of the Executive and, with respect to the
Executive's spouse and dependents, for such period provided under the
aforesaid provisions regarding the extent and duration of spouse and
dependent coverage, and subject to payment of premiums charged at rates no
greater than those paid by active employees under the rate structure in
effect immediately prior to the Change in Control; and
c. Payment in a lump sum in cash, within sixty (60) days of the Executive's
Qualifying Termination, of the present value (calculated as of the date of
the Qualifying Termination using the Discount Rate) of an annuity amount
determined as the difference between (A) and (B), where (A) is the dollar
value of the actual benefits (payable in the form of a single life annuity
with 60 monthly payments guaranteed), if any, to which the Executive, or the
Executive's beneficiary, is entitled under the Retirement Plan and the
Supplemental Plan (excluding amounts accrued in the PensionPlus Match Account
in the Retirement Plan) as of the Qualifying Termination Date; and where (B)
is the dollar value of the benefits (payable in the form of a single life
annuity with 60 monthly payments guaranteed), if any, under the Retirement
Plan and the Supplemental Plan (excluding amounts accrued in the aforesaid
PensionPlus
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Match Account) which the Executive, or the Executive's beneficiary, would
have been entitled to receive as of the end of the applicable Payment Period
if the Executive had remained employed by Xxxxxxx or one of its Affiliates
during the applicable Payment Period at a compensation level equal to the
Executive's Base Compensation. In calculating the lump sum payable as of the
date of the Qualifying Termination, this annuity amount (determined as the
difference between (A) and (B) above) is assumed to be payable to the
Executive in the form of a single life annuity with 60 monthly payments
guaranteed commencing on the date of the Qualifying Termination; and
d. If the Executive, at the time of the Qualifying Termination, is at least 48
years old but not yet age 55, monthly payments equal in amount to those the
Executive would be entitled to receive pursuant to the Retirement Plan and
the Supplemental Plan (excluding amounts accrued in the PensionPlus Match
Account) if paid in the form of a single life annuity. The payments shall be
calculated as if the Executive were age 55 but with years of service equal to
the Executive's "credited service" (as defined in the Retirement Plan) as of
the Qualifying Termination. Such payments shall commence upon the first day
of the month following the later to occur of the Qualifying Termination or
the attainment of age 50, and shall be paid to the Executive (or his or her
beneficiary designated under Article 6) until the date the Executive attains
or would have attained age 55. Alternatively, if the Executive is eligible to
receive benefits from the Retirement Plan (other than the PensionPlus Match
Account benefits) in the form of a lump sum, the Executive may elect to
receive a lump sum equal to the present value, calculated using the Discount
Rate, of the monthly benefits provided for in this Article 4(d); and
e. During the Payment Period, the Executive may request in writing, and the
Company shall at its expense engage within a reasonable time following such
written request, an outplacement counseling service of national reputation to
assist the Executive in obtaining employment. The Executive shall be entitled
to outplacement services which are customary for someone in the Executive's
position; and
f. Notwithstanding the foregoing, in the event both a Change in Control and the
Executive's Qualifying Termination occur at any time during the period
commencing with the effective date of this Agreement and ending on March 31,
2003, then the Severance Benefits provided hereunder (whether or not such
Severance Benefits are subject to a timely executed deferral election) with
respect to such Qualifying Termination shall be reduced (but not below zero)
by an amount equal to any 1999 Severance Benefits provided to the Executive
(whether or not such Severance Benefits are subject to a timely executed
deferral election), as follows:
(i) The lump sum payments provided in Articles 4(a) and 4(c) hereof
shall each be reduced respectively (but not below zero) by any lump
sum payments to the Executive provided in accordance with Articles
4(a) and 4(c) of the 1999 Management Continuity Agreement; and
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(ii) Continuation of the benefits as provided in Article 4(b) hereof, but
only to the extent to which such benefits would be provided under
Article 4(b) of the 1999 Management Continuity Agreement, shall
apply only to a period of time that does not constitute an
Overlapping Payment Period; and
(iii) Monthly payments provided in Article 4(d) hereof shall be reduced
(but not below zero) by any monthly payments to the Executive paid
in accordance with Article 4(d) of the 1999 Management Continuity
Agreement. In the event the Executive elects, as provided under
Article 4(d) hereof, to receive a lump sum payment of the benefits
provided thereunder, then such lump sum payment shall be reduced by
the present value, calculated using the Discount Rate, of any
monthly payments to which the Executive is entitled under Article
4(d) of the 1999 Management Continuity Agreement.
ARTICLE 5. EXCISE TAXES AND GROSS-UP PAYMENT:
a. Anything in this Agreement to the contrary notwithstanding, and except as set
forth below, in the event it shall be determined under the provisions of
Article 5(b) that any payment or distribution by Xxxxxxx, a Buyer, or any
Successor or Affiliate of the foregoing ("Payor"), to or for the benefit of
the Executive (whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise, including without
limitation any other plan, arrangement or agreement with such Payor, and
including a determination (i) with regard to the value of any accelerated
vesting of stock awards or other forms of compensation, if such vesting
occurs as a result of a Change in Control; but (ii) without regard to any
additional payments required under this Article 5) (a "Payment") would be
subject to the excise tax imposed by Section 4999 of the Code, or any
interest or penalties are incurred by the Executive with respect to such
excise tax (such excise tax, together with any such interest and penalties,
are hereinafter collectively referred to as the "Excise Tax"), then the
Executive shall be entitled to receive an additional payment (a "Gross-Up
Payment"). This Gross-Up Payment shall be equal to an amount such that, after
payment by the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without limitation, (i) any
income and FICA taxes (and any interest and penalties imposed with respect
thereto) and (ii) Excise Tax imposed upon the Gross-Up Payment, the Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed
upon the Payments. Xxxxxxx'x obligation to make Gross-Up Payments under this
Article 5(a) shall not be conditioned upon the Executive's Qualifying
Termination of Employment. For purposes of determining the amount of the
Gross-Up Payment, the Executive shall be deemed to pay federal income taxes
at the highest marginal rate of federal income taxation in the calendar year
in which the Gross-Up Payment is to be made, and state and local income taxes
at the highest marginal rate of taxation in either the state and locality of
the Executive's place of employment at the time of the Change in Control or
in the state and locality of residence at the time or times of payment, as
applicable,
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net of the maximum reduction in federal income taxes that could be obtained
from the deduction of the state and local taxes.
Notwithstanding the foregoing provisions of this Article 5(a), if it shall be
determined that the Executive is entitled to a Gross-Up Payment, but that the
Payments do not exceed 110 percent of the greatest amount (the "Reduced
Amount") that could be paid to the Executive such that the receipt of
Payments would not give rise to any Excise Tax, then no Gross-Up Payment
shall be made to the Executive, and the Payments, in the aggregate, shall be
reduced to the Reduced Amount. The reduction of the amounts payable
hereunder, if applicable, shall be made by first reducing the payments under
Article 4(a) hereof, and in any event shall be made in such a manner as to
maximize the value of all Payments actually made to the Executive. For
purposes of reducing the payments to the Reduced Amount, only amounts payable
under this Agreement (and no other Payments) shall be reduced. If the
reduction of amounts payable under this Agreement would not result in the
payment of the Reduced Amount, no amounts payable under this Agreement shall
be reduced.
x. Xxxxxxx shall provide written notice to the Executive with respect to each
Payment promptly after it occurs, setting forth the nature of such Payment.
Subject to the provisions of Article 5(c), all determinations required to be
made under this Article 5, including whether and when a Gross-Up Payment is
required and the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by a nationally
recognized certified public accounting firm as may be designated by the
Executive (the "Accounting Firm"). Within 15 days after the Accounting Firm
has been notified by the Executive or Xxxxxxx that a Payment has occurred,
the Accounting Firm shall provide detailed supporting calculations with
respect to such Payment both to Xxxxxxx and the Executive. All fees and
expenses of the Accounting Firm shall be borne solely by Xxxxxxx. Any
Gross-Up Payment, as determined pursuant to this Article 5, shall be paid by
Xxxxxxx to the Executive within five days of the receipt of the Accounting
Firm's determination. Any determination by the Accounting Firm shall be
binding upon Xxxxxxx and the Executive. As a result of any uncertainty in the
application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by Xxxxxxx should have been made
("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that Xxxxxxx exhausts its remedies pursuant to
Article 5(c) and the Executive thereafter is required to make a payment of
any Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall be promptly
paid by Xxxxxxx to or for the benefit of the Executive.
c. The Executive shall notify Xxxxxxx in writing of any written communication
from the Internal Revenue Service or other taxing authority concerning the
Gross-Up Payment or other matters arising under this Agreement. Such
notification shall be given as soon as practicable but no later than ten
business days after the Executive receives
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such written communication and shall apprise Xxxxxxx of the content of such
communication. Failure to give timely notice shall not be deemed to prejudice
the Executive's rights to Gross-Up Payment and rights of indemnity hereunder.
The Executive shall not pay any claim pursuant to such written communication
prior to the expiration of the 30-day period following the date on which the
Executive gives such notice to Xxxxxxx (or such shorter period ending on the
date that any payment of taxes with respect to such claim is due). If Xxxxxxx
notifies the Executive in writing prior to the expiration of such period that
it desires to contest such claim, the Executive shall (i) give Xxxxxxx any
information reasonably requested by Xxxxxxx relating to such claim, (ii) take
such action in connection with contesting such claim as Xxxxxxx shall
reasonably request in writing from time to time, including, without
limitation, accepting legal representation with respect to such claim by an
attorney reasonably selected by Xxxxxxx, (iii) cooperate with Xxxxxxx in good
faith in order to effectively contest such claim, and (iv) permit Xxxxxxx to
participate in any proceedings relating to such claim; provided, however,
that Xxxxxxx shall bear and pay directly all costs and expenses (including
additional interest and penalties) incurred in connection with such contest
and shall indemnify and hold the Executive harmless, such that after payment
by the Executive of any and all income taxes, Excise Taxes and FICA taxes
(including any interest and penalties imposed with respect thereto) ("Taxes")
that may be imposed as a result of such representation and payment of costs
and expenses by Xxxxxxx, the Executive retains an amount equal to such Taxes.
Without limitation on the foregoing provisions of this Article 5(c), Xxxxxxx
shall control all proceedings taken in connection with such contest and, at
its sole option, may pursue or forgo any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect of
such claim and may, at its sole option, either direct the Executive to pay
Taxes claimed and xxx for a refund or contest the claim in any permissible
manner, and the Executive agrees to prosecute such contest to a determination
before any administrative tribunal, in a court of initial jurisdiction and in
one or more appellate courts, as Xxxxxxx shall determine; provided, however,
that if Xxxxxxx directs the Executive to pay such claim and xxx for a refund,
Xxxxxxx shall advance the amount of such payment to the Executive, on an
interest-free basis, and shall indemnify and hold the Executive harmless such
that, after payment by the Executive of Taxes imposed with respect to such
advance or with respect to any imputed income with respect to such advance,
the Executive retains an amount equal to such Taxes. Furthermore, Xxxxxxx'x
control of the contest shall be limited to issues with respect to which a
Gross-Up Payment would be payable hereunder and the Executive shall be
entitled to settle or contest, as the case may be, any other issue raised by
the Internal Revenue Service or any other taxing authority unrelated to the
subject matter of this Agreement.
d. If, after the receipt by the Executive of an amount advanced by Xxxxxxx
pursuant to Article 5(c), the Executive becomes entitled to receive any
refund with respect to such claim, the Executive shall (subject to Xxxxxxx'x
complying with the requirements of Article 5(c)) promptly pay to Xxxxxxx the
amount of such refund (together with any interest paid or credited thereon
after Taxes applicable thereto). If, after the receipt by
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the Executive of an amount advanced by Xxxxxxx pursuant to Article 5(c), a
determination is made that the Executive shall not be entitled to any refund
with respect to such claim and Xxxxxxx does not notify the Executive in
writing of its intent to contest such denial of refund prior to the
expiration of 30 days after such determination, then such advance shall be
deemed to be a part of the Gross-Up Payment and shall not be required to be
repaid.
ARTICLE 6. DESIGNATED BENEFICIARY: The Executive, by notice in accordance with
Article 12 hereof, may designate a beneficiary or contingent beneficiaries to
receive the Severance Benefits described in Article 4 and the Gross-Up Payment
described in Article 5 in the event of the Executive's death following the
Executive's Qualifying Termination but prior to payment in full by Xxxxxxx, its
Successor or assigns. The Executive may, from time to time, revoke or change any
such designation of beneficiary. Any designation of beneficiary made pursuant to
this Agreement shall be controlling over any other designation made by the
Executive, testamentary or otherwise; provided, that if Xxxxxxx shall be in
doubt as to the right of a beneficiary to receive payments, it may determine in
its sole discretion to pay such amounts to the legal representative of the
Executive's estate.
ARTICLE 7. EARLY SEPARATION: In the event that, prior to a Change in Control,
the Executive executes a separation agreement with Xxxxxxx or any of its
Affiliates during the term of this Agreement which, by its terms, specifically
addresses issues related to the Executive's termination of employment and
benefits to be paid upon such termination, all of the Executive's rights, claims
and entitlements under this Agreement shall terminate even if, under the terms
of such separation agreement, the Executive remains employed by Xxxxxxx or one
of its Affiliates for a period of time after execution of such separation
agreement.
ARTICLE 8. RESTRICTIONS: The Executive agrees, as a condition of receiving the
Severance Benefits described under Article 4 or the Gross-Up Payment described
under Article 5, that during the Payment Period, determined without regard to
Article 4(f), the Executive will not, as an individual or as a partner,
employee, agent, advisor, consultant or in any other capacity of or to any
person, firm, corporation or other entity (excluding Xxxxxxx, a Buyer, or a
Successor or Affiliate of the foregoing), directly or indirectly, other than as
a 2% or less shareholder of a publicly traded corporation, do any of the
following:
(a) carry on any business, or become involved in any business activity,
which is competitive with the business conducted by Xxxxxxx or an Affiliate
immediately prior to a Change in Control; or
(b) induce or attempt to induce, or assist anyone else to induce or
attempt to induce, any customer of Xxxxxxx to discontinue its business with
Xxxxxxx or disclose to anyone else any confidential information relating to the
identities, preferences, and/or requirements of any such customer.
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The Executive agrees (i) that the restraints contained in this Article 8,
both separately and in total, are reasonable in view of the legitimate interests
of Xxxxxxx in protecting its trade secret information and business
relationships; and (ii) to disclose to any potential future employer during the
Payment Period, determined without regard to Article 4(f), the terms of the
restrictions against competition contained in this Article 8.
If any provision or subpart of this Article 8 is adjudicated to be invalid
or unenforceable under applicable law, the validity or enforceability of the
remaining provisions and subparts shall be unaffected. If any provision or
subpart of this Article 8 is adjudicated to be invalid or unenforceable because
it is overbroad or unreasonable, that provision or subpart shall not be void but
rather shall be limited to the extent required to make it reasonable and shall
be enforced as so limited.
In the event of a breach of this Article 8, Xxxxxxx (i) shall have no
further liability for any of the Severance Benefits described in Article 4 and
the Gross-Up Payment described in Article 5 that have not been paid as of the
date of the breach, or (ii) shall be entitled, in addition to any other legal or
equitable remedies it may have, to temporary, preliminary and permanent
injunctive relief restraining such breach.
ARTICLE 9. SUCCESSORS AND ASSIGNS: This Agreement shall inure to the benefit of,
and be binding upon, Xxxxxxx and its Successors. Xxxxxxx may not assign this
Agreement without the Executive's prior written consent. Xxxxxxx will require
any Person to which it assigns this Agreement to assume expressly the Agreement
and agree to perform this Agreement in the same manner and to the same extent
that Xxxxxxx would be required to perform it if no such assignment had taken
place. No assignment of this Agreement shall relieve Xxxxxxx from liability for
any of its obligations hereunder, and in the event of any such assignment,
Xxxxxxx or its Successor shall continue to remain primarily liable for payment
of the Severance Benefits described in Article 4 and the Gross-Up Payment in
Article 5 and for the performance and observance of the agreements provided
herein to be performed and observed by Xxxxxxx. The Executive shall have no
right to transfer or assign the right to receive any Severance Benefits under
Article 4 and the Gross-Up Payment under Article 5 of this Agreement, except as
permitted under Article 6.
ARTICLE 10. COSTS: Irrespective of the success of the Executive's claim, Xxxxxxx
will reimburse the Executive, or the legal representative of the Executive's
estate, for reasonable attorney's fees and costs in the event that the Executive
brings legal action to enforce payment by Xxxxxxx, its Affiliates or assigns, or
any Successors to any of the foregoing, of the Severance Benefits described in
Article 4 and the Gross-Up Payment under Article 5 (plus interest at the
applicable federal rate provided for in Section 7872(f)(2) of the Code on
payments of such Severance Benefits and the Gross-Up Payment due but not timely
made).
ARTICLE 11. TERM OF AGREEMENT: This Agreement shall expire upon the
earliest of the following to occur:
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(a) five (5) years from its effective date, unless extended by the Board
of Directors on or before such expiration date;
(b) if a determination of the Executive's Disability is made before a
Change in Control while this Agreement is in effect, the day following
such determination; or
(c) if the Executive ceases to be employed with Xxxxxxx and any of its
Affiliates prior to a Change in Control, the last day of such employment;
provided that, if the Executive and Xxxxxxx or one of its Affiliates
enters into a separation agreement as described in Article 7 while this
Agreement is in effect, the effective date of such separation agreement.
After the expiration of this Agreement, the Executive shall have no rights to
any Severance Benefits described in Article 4 and the Gross-Up Payment described
in Article 5; provided however, if a Change in Control occurs prior to the
expiration of this Agreement, then the Executive shall be entitled to the
Gross-Up Payment described in Article 5 and, upon a subsequent Qualifying
Termination, Severance Benefits described in Article 4, and the term of this
Agreement shall be extended until the latest to occur of the following: (a) the
expiration of the Payment Period, determined without regard to Article 4(f); (b)
if the Executive is eligible for monthly payments pursuant to Article 4(d), the
date of the final payment thereunder, determined without regard to Article 4(f);
(c) the date of the final Gross-Up Payment due under Article 5; or (d) the
expiration of the period for which health benefits are to be provided under
Article 4(b).
ARTICLE 12. NOTICE: Any notice or other communication required or permitted
hereunder is deemed delivered when delivered in person; on the next business
day when sent by an overnight delivery service; or on the third business day
when sent by U.S. mail service, as follows:
TO XXXXXXX: Corporate Secretary
Xxxxxxx Purina Company
Xxxxxxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
TO THE EXECUTIVE: ________________________
________________________
________________________
ARTICLE 13. VENUE: ANY ACTION OR LEGAL PROCEEDING TO ENFORCE PAYMENT OF
SEVERANCE BENEFITS DESCRIBED IN ARTICLE 4 OR COMPLIANCE WITH THE COVENANTS
CONTAINED IN ARTICLE 5 OR 8 OF THIS AGREEMENT SHALL BE BROUGHT IN A FEDERAL OR
STATE COURT LOCATED WITHIN THE EASTERN DISTRICT OF MISSOURI, AND
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THE PARTIES TO THIS AGREEMENT CONSENT TO THE JURISDICTION AND VENUE OF SUCH
COURT.
ARTICLE 14. MISSOURI LAW TO GOVERN: This Agreement shall be governed by the
laws of the State of Missouri without regard to its conflict of laws
provisions.
ARTICLE 15. ENTIRE AGREEMENT: This Agreement, together with the 1999 Management
Continuity Agreement, constitutes the entire understanding between the parties
hereto with respect to the subject matter hereof, and supersedes and replaces
any previous management continuity agreement (other than the 1999 Management
Continuity Agreement) or any employment contract (oral or written) between
Xxxxxxx and the Executive relating to severance payments after a Change in
Control, and upon the execution of this Agreement, both parties agree that any
prior agreement (other than the 1999 Management Continuity Agreement) or
employment contract covering severance payments (or other severance-type
payments) after a Change in Control shall be considered null and void and of no
further effect.
IN WITNESS WHEREOF, Xxxxxxx and the Executive have executed this Agreement
effective as of the 6th day of April, 2001.
ATTEST: XXXXXXX PURINA COMPANY
------------------------------- ----------------------------------
Xxxxx X. Xxxxxxxx X. X. Xxx
VP & Corporate Secretary Vice President and General Counsel
WITNESS:
------------------------------ ----------------------------------
J. R. Xxxxxxxx
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