CONFIDENTIALITY AGREEMENT
Exhibit
(d)(2)
THIS CONFIDENTIALITY AGREEMENT (the “Agreement”) is entered into as of May 3, 2010, by and
between American Italian Pasta Company, a Delaware company (the “Company”) and Ralcorp Holdings,
Inc., a Missouri company (the “Recipient”).
WHEREAS, the Company has determined to furnish the Recipient certain Confidential Information
(as defined below) relating to the Company for the purpose of facilitating discussions between the
Company and the Recipient, assessing a potential transaction with the Company (the “Transaction”),
and to comply with the United States Securities and Exchange Commission’s Regulation Fair
Disclosure (the “Purpose of Disclosure”), and Recipient is willing to receive this information
under the strict obligation of confidentiality and limitations of use described below.
NOW, THEREFORE, in consideration of the Company’s disclosure of information to the Recipient
and the promises set forth below, the parties agree as follows:
1. Confidential Information. “Confidential Information” as used in this
Agreement means all information relating to the Company disclosed to the Recipient by the Company,
including without limitation any business, technical, marketing, financial or other information,
whether in written, electronic or oral form. Any and all reproductions, copies, notes, summaries,
reports, analyses or other material derived by the Recipient or its Representatives (as defined
below) in whole or in part from the Confidential Information in whatever form maintained shall be
considered part of the Confidential Information itself and shall be treated as such. Confidential
Information does not include information that (a) is or becomes part of the public domain other
than as a result of disclosure by the Recipient or its Representatives; (b) becomes available to
the Recipient on a nonconfidential basis from a source other than the Company, provided that source
is not bound with respect to that information by a confidentiality agreement with the Company or is
otherwise prohibited from transmitting that information by a contractual, legal or other
obligation; (c) can be proven by the Recipient to have been in the Recipient’s possession prior to
disclosure of the same by the Company; or (d) is independently developed by the Recipient without
reference to or reliance on any of the Company’s Confidential Information.
2. Representatives and Affiliates. As used in this Agreement, the term
“Representatives” means, as to any person, such person’s Affiliates, directors, officers,
employees, legal counsel, and financial and accounting advisors and other advisors and no other
persons. As used in this Agreement, the term “person” shall be broadly interpreted to include,
without limitation, an individual, the media, and any corporation, company, partnership, limited
liability company, or other entity, organization, or association. As used in this Agreement, the
term “Affiliate” means, with respect to a person, any other person or entity directly or indirectly
controlling or controlled by or under direct or indirect common control with such person. For the
purposes of this definition, “control” when used with respect to any person or entity, means the
power to direct the management and policies of such person or entity, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to the foregoing.
3. No Disclosure and Limited Use of Confidential Information. The Recipient agrees that
it will not use the Confidential Information for purposes other than the Purpose of Disclosure.
Except as expressly permitted hereunder, the Recipient shall not disclose the Confidential
Information, including the identity of the Company and the fact that information has been provided
or discussions are taking place, to any other person and shall use all reasonable efforts to
protect the confidentiality of such information. The Recipient agrees to share the Confidential
Information only on a need-to-know basis with a limited number of its Representatives who are
informed of the confidential nature of the Confidential Information and who agree to keep such
information confidential. As a condition to such disclosure, the Recipient must inform such
Representative of the confidential nature of the information and will be responsible for any
breach of this Agreement by any such Representative. The Recipient shall maintain a record of the
Representatives who have been provided with any Confidential Information and what information was
provided to them. The Recipient shall notify the Company immediately upon discovery of any loss,
unauthorized disclosure or use of the Confidential Information or any other breach of this
Agreement by the Recipient or its Representatives. In any such event, the Recipient shall help the
Company in every reasonable way to regain possession of the Confidential Information and shall
prevent any further unauthorized disclosure or use.
4. Compelled Disclosure. In the event that the Recipient or any of its
Representatives is requested to, or required by, applicable law, judicial or administrative
proceeding, governmental or regulatory authority (including, without limitation, any rule,
regulation or policy statement of any national securities exchange, market or automated quotation
system on which any of Recipient’s securities are listed or quoted) or by legal process to
disclose any Confidential Information, the Recipient must (a) provide the Company prompt notice of
each such request so that the Company may seek an appropriate protective order restraining or
limiting such compelled disclosure; (b) cooperate with and assist the Company (at the Company’s
expense) in resisting, opposing, and limiting such compelled disclosure; (c) disclose only that
portion of the Confidential Information that the Recipient’s legal counsel advises is required to
be disclosed; (d) use its reasonable efforts to ensure that the Confidential Information is
treated confidentially; and (e) provide the Company a copy of any Confidential Information which
is being disclosed pursuant to the provisions of this Section 4 prior to disclosing such
Confidential Information.
5. Ownership and Return. All Confidential Information will remain the property of the
Company and no right or license is granted to any person with respect to any Confidential
Information. At any time upon the request of the Company, the Recipient agrees to (a) immediately
return to the Company or destroy all Confidential Information, including copies of the same; and
(b) destroy any memoranda, summaries, reports, documents or analyses created by the Recipient or
any of its Representatives that contain or are based in any way on the Confidential Information.
Within five (5) business days after the Company’s request, the fact of any such destruction must be
certified in writing to the Company by the Recipient.
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6. Standstill. For a period of eighteen (18) months from and after the date hereof,
the Recipient shall not, and shall cause its Affiliates not to, directly or indirectly, acting
alone or in concert with others, unless specifically requested in writing in advance by the
Company:
(i) acquire, or offer, seek, propose or agree to acquire, directly or indirectly, by
purchase or otherwise, any equity or other securities of the Company or any of the assets or
businesses of the Company, or any right or option to acquire any of the foregoing (including
from a third party), or make any public announcement (or request permission to make any such
announcement) with respect to any of the foregoing;
(ii) solicit proxies or consents or become a “participant” in a “solicitation” (as such
terms are defined in Regulation 14A under the Exchange Act) of proxies or consents with
respect to any equity or other securities of the Company with regard to any matter;
(iii) seek to control or influence the management or the board of directors of the
Company, seek or propose to obtain representation or further representation on the board of
directors of the Company or any committee thereof, seek to advise, encourage or influence
any person with respect to the voting of any equity or other securities of the Company or
seek to induce or in any manner assist any other person to initiate any stockholder proposal
with respect to any securities of the Company, any change of control of the Company or for
the purpose of convening any meeting of stockholders of the Company or to initiate any
tender or exchange offer for equity or other securities of the Company;
(iv) make any public or other announcement, except as required by law, or make any
written or oral offer, proposal or inquiry relating to a tender or exchange offer for any
equity or other securities of the Company, or any merger, consolidation, business
combination or other transaction that would result in a change of control, sale of assets,
liquidation or other extraordinary corporate transaction (each such transaction being
referred to herein as an “Acquisition”) between the Company and the Recipient and/or
any of its Affiliates or take any action which could reasonably be expected to require the
Company to make a public announcement regarding any Acquisition or the pursuit of any
strategic alternative;
(v) deposit any equity or other securities of the Company in a voting trust or subject
any such securities of the Company to any arrangement or agreement with respect to the
voting, ownership or economic interest of any such securities of the Company;
(vi) form, join or in any way participate in any partnership, limited partnership,
syndicate or other group (or otherwise act in concert with any other person) for the purpose
of acquiring, holding, voting or disposing of any equity or other securities of the Company
or taking any other actions restricted or prohibited under clauses (i) through (v) of this
Section 6; or
(vii) propose, inquire or otherwise seek to have the Company amend or waive any
provision of this Section 6;
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provided that the Recipient shall not be precluded from communicating solely and exclusively with
the Board of Directors of the Company with respect to a transaction involving the Company or
seeking a waiver of any of the provisions of Section 6.
If the Recipient receives any proposal, inquiry or other communication with respect to any of
the foregoing, it shall promptly advise the Company thereof, and inform the Company of the source
and details of such proposal, inquiry or communication.
Notwithstanding the foregoing restrictions in this Section 6, (i) each Party may
purchase goods or services of the other Party or submit proposals for the purchase or sale of goods
or services to the other Party in the ordinary course of business consistent with past practice and
(ii) the limitations and prohibitions on the Recipient set forth in this Section 6 shall no
longer apply if, at any time during the eighteen (18) month period, any person, entity or group (x)
in any manner acquires or agrees to acquire, directly or indirectly, at least a majority of the
outstanding capital stock of the Company; (y) enters into, directly or indirectly, a definitive
agreement with the Company providing for any Acquisition involving the Company which, if
consummated, would result in the stockholders of the Company immediately prior to the consummation
of such transaction ceasing to own at least a majority of the outstanding capital stock of the
surviving entity, or would result in all or a substantial portion of the Company’s assets being
sold to any person, entity or group; or (z) announces or commences a tender or exchange offer to
acquire capital stock of the Company which, if successful, would result in such person, entity or
group owning (when combined with any other equity securities owned by such person, entity or group)
at least a majority of the then outstanding capital stock of the Company.
The Recipient hereby represents to the Company that, neither it nor any of its Affiliates owns
(including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange
Act) any equity or other securities issued by the Company as of the date hereof.
7. Non-Solicitation/No-Hire. The Recipient agrees that for a period of two (2) years
from the date hereof, without the Company’s consent, it will not solicit for employment or hire or
attempt to solicit for employment or hire any of the Company’s managers or officers (including any
manager or officer who is employed by the Company at the time of the execution of this Agreement or
at any time during the term of this Agreement) or any other employees of the Company with whom it
comes in contact during any discussions with the Company (a “Contacted Employee”), provided
that the foregoing shall not preclude the Recipient from hiring any Contacted Employee (which, for
clarification purposes, does not include managers or officers of the Company) who is under no
restriction regarding such employment and who (a) initiates discussions with the Recipient
regarding such employment without any direct or indirect solicitation by the Recipient, (b) has had
his or her employment terminated by the Company or its affiliates prior to commencement of
employment discussions between the Recipient and such person or (c) responds to any general
solicitation placed by the Recipient (including, without limitation, any recruitment efforts
conducted by any recruitment agency, provided that neither the Recipient nor any affiliates
have directed such recruitment efforts at such person).
8. Relationship of Parties. No right or license, express or implied, is
granted to the Recipient with respect to any Confidential Information. Nothing in this Agreement
obligates the
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Company to disclose any information relating to the Company to the Recipient or creates an agency
or partnership relationship between the Company and the Recipient.
9. No Representations. The Company makes no representation or warranty, expressed or
implied, as to the accuracy or completeness of any information provided to the Recipient,
including, without limitation, any forecasts, projections or other forward-looking information, and
shall not be liable in any manner for loss or injury resulting from reliance thereon. The Recipient
is not entitled to rely on the accuracy or completeness of any Confidential Information.
10. Securities Laws. The Recipient is aware, and will advise its Representatives who
are informed of the matters that are the subject of this Agreement, of the restrictions imposed by
the United States securities laws on the purchase or sale of securities by any person who has
received material, non-public information from the issuer of such securities and on the
communication of such information to any other person when it is reasonably foreseeable that such
other person is likely to purchase or sell such securities in reliance upon such information.
11. Assignment. The Recipient agrees that the rights and remedies of the Company under
this Agreement shall inure to the benefit of, and shall be separately enforceable by, the Company,
its Affiliates, and its successors and assigns, including but not limited to any and each successor
owner of any of the Confidential Information. The Recipient shall not assign this Agreement without
the prior written consent of the Company, which may be withheld arbitrarily by the Company for any
reason, except that, without such consent, the Recipient shall cause its obligations under this
Agreement to be assumed, either in writing or by operation of law, by any successor (by merger,
sale of assets, or otherwise) to the business of the Recipient or of any portion thereof to which
any of the Confidential Information has been disclosed. No assignment of this Agreement or of any
rights or obligations hereunder shall relieve the Recipient of any of its obligations hereunder.
12. Injunctive Relief. The Recipient agrees that if it breaches or threatens to breach
any provision of this Agreement, the Company will suffer irreparable damages and its remedy at law
will be inadequate. Therefore, if the Recipient threatens to or breaches this Agreement, the
Company will be entitled, in addition to all other remedies available at law or in equity, to
equitable relief, including specific performance and injunctive relief to enforce any provision
hereof and to restrain the Recipient from using or disclosing, in whole or in part, directly or
indirectly, any Confidential Information. The Recipient also agrees to indemnify and hold the
Company harmless from any damages, losses, costs, expenses or liabilities (including, without
limitation, legal fees or other costs or expenses of enforcing this indemnity) arising out of or
resulting from any unauthorized use or disclosure by the Recipient or any Affiliate, including its
Representatives, of any Confidential Information or other violation of the terms of this Agreement.
13. Term. This Agreement will continue in effect for a period of three (3) years from
the date hereof.
14. Miscellaneous. If any one of the provisions contained in this Agreement is found to be
invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, the
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validity, legality or enforceability of the remaining provisions contained in this Agreement will
not in any way be affected or impaired by such a finding. No waiver of any provisions of this
Agreement will be valid unless the same is in writing and signed by the party against whom such
waiver is sought to be enforced. A waiver or consent given by either party on any one occasion is
effective only in that instance and will not be construed as a bar to or waiver of any right on any
other occasion. This Agreement contains the entire agreement of the parties, supersedes any and all
prior agreements, written or oral, between them relating to the subject matter hereof, and may not
be amended unless agreed to in writing by each party. This Agreement may be executed in multiple
counterparts, each of which, when executed and delivered, shall be deemed an original, but all of
which shall constitute one and the same instrument. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Missouri (without regard to its conflict of
laws provisions). Each party hereto consents to personal jurisdiction in the State of Missouri and
voluntarily submits to the exclusive jurisdiction of the courts of the State of Missouri in any
action or proceeding with respect to this Agreement, including the federal district courts located
in the State of Missouri. The Recipient agrees that it may be served with process at the address of
its corporate headquarters.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
| American Italian Pasta Company | Ralcorp Holdings, Inc. | |||||
By:
|
/s/ Xxxxxx X. Xxxxxxxx | By: | /s/ Xxxxx Xxxxxxx | |||
Name:
|
Xxxxxx X. Xxxxxxxx | Name: | Xxxxx Xxxxxxx | |||
Title:
|
EVP & General Counsel | Title: | Corporate VP | |||
