FORM OF 2009 RALCORP HOLDINGS, INC. NON-CEO RESTRICTED STOCK UNIT AGREEMENT
Exhibit
10.2
FORM
OF 2009 RALCORP HOLDINGS, INC.
NON-CEO
RESTRICTED STOCK UNIT AGREEMENT
This
Restricted Stock Unit Agreement (“Agreement”), dated ________ __, 2009,
evidences an award of restricted stock units made by Ralcorp Holdings, Inc.
(“Company”), to [ ] (“Executive”), each of which represents the right
to receive on settlement one (1) share of Company common stock, $.01 par value,
(“Common Stock”), subject to all terms and conditions herein.
WHEREAS, the Company has determined
that it is in the best interests of the Company and its stockholders to grant
Executive the restricted stock units, as provided in this Agreement and subject
to all terms and conditions herein;
NOW
THEREFORE, in consideration of the premises, and of the mutual agreements
hereinafter set forth, the Company and Executive agree as follows:
1. Grant of
Restricted Stock Units. The Company
hereby grants to Executive [ ] restricted stock units (“Award”) on
_________ ___, 2009 (“Date of Grant”), subject to the terms and conditions as
set forth below. Each such restricted stock unit (“Unit”) is a
bookkeeping entry that represents the right to receive on a date determined in
accordance with this Agreement one share of Common Stock, subject to the risk of
cancellation and forfeiture as described herein. This Award is made
under and subject to the terms of the Amended and Restated 2007 Ralcorp
Incentive Stock Plan (“Plan”), which is incorporated herein by
reference. Capitalized terms defined in the Plan but not defined in
this Agreement shall have the meanings given to them in the Plan.
2. Vesting
of Restricted Stock Units.
a. The
Units shall become one hundred percent (100%) vested and nonforfeitable (i) on
December 31, 2013 (“Vesting Date”), provided that Executive remains continuously
employed with the Company through the Vesting Date and further provided that
attainment of the following performance target (“Performance Target”) is
achieved: The compounded annual growth in the Company’s earnings per share over
the course of fiscal years 2010 and 2011 of no less than
10%. Notwithstanding the foregoing, the units shall become one
hundred percent (100%) vested and nonforfeitable on the date of: (i) involuntary
termination of employment by the Company without Cause after the Performance
Targets is achieved, (ii) death, (iii) Disability, or (iv) Change of Control,
provided that Executive remains continuously employed with the Company through
the date any such event occurs and further provided that such event occurs
before December 31, 2013.
In the
event that the Units have not vested on or before December 31, 2013, Executive
shall forfeit all Units which are not vested as of December 31, 2013, and
Executive shall not be entitled to any payment or other consideration
hereunder.
3. Termination
of Employment. In the event that
Executive’s employment terminates for any reason or no reason, with or without
cause, voluntarily or involuntarily, Executive shall forfeit all Units which are
not, as of the time of such termination, vested, and Executive shall not be
entitled to any payment or other consideration with respect thereto; provided,
however, that on the termination of Executive’s employment prior to December 31,
2013 due to involuntary termination by the Company without Cause after the
Performance Targets is achieved (and only if such Performance Target is so
achieved) or death, the Units hereunder shall vest immediately on the date of
such death or involuntary termination without Cause.
4. Settlement
of the Restricted Stock Units.
a. Subject
to the terms and conditions of this Agreement, the Company shall issue to
Executive (or, in the event of death, the person designated under the Plan in
such event) the number of shares of Common Stock that is equal to the number of
vested Units on the first business day which is more than six months following
the date of Executive’s termination of employment. For this purpose,
a termination of employment will be determined in a manner consistent with
Section 409A of the Code, and the regulations and guidance
thereunder.
b. The
grant of the Units and issuance of shares of Common Stock upon settlement of the
Units shall be subject to and in compliance with all applicable requirements of
federal, state, and foreign law with respect to such securities. No
shares of Common Stock may be issued hereunder if the issuance of such shares
would constitute a violation of any applicable federal, state, or foreign
securities laws or other law or regulations or the requirements of any stock
exchange or market system upon which the Common Stock may then be
listed. The inability of the Company to obtain from any regulatory
body having jurisdiction the authority, if any, deemed by the Company to be
necessary to the lawful issuance of any shares subject to the Units shall
relieve the Company of any liability in respect of the failure to issue such
shares as to which such requisite authority shall not have been
obtained. As a condition to the settlement of the Units, the Company
may require Executive to satisfy any qualifications that may be necessary or
appropriate, to evidence compliance with any applicable law or regulation and to
make any representation or warranty with respect thereto as may be requested by
the Company.
c. Shares
issued in settlement of the Units shall be registered in the name of
Executive. Such shares may be issued either in certificated or book
entry form. In either event, the certificate or book entry account
shall bear such restrictive legends or restrictions as the Company, in its sole
discretion, shall require.
d. The
Company shall not be required to issue fractional shares upon the settlement of
the Units.
e. As
of each dividend payment date for each cash dividend on the Common Stock, the
Company shall award Executive additional restricted stock units, which shall be
subject to the same terms and conditions as the Units granted pursuant to this
Agreement. The number of additional restricted stock units to be
granted shall equal (i) the product of (x) the per-share cash dividend payable
with respect to each share of Common Stock on that date, multiplied by (y) the
total number of Units which have not been paid or forfeited as of the record
date for such dividend, divided by (ii) the Fair Market Value of one share of
Common Stock on the payment date of such dividend. The number of
additional Units to be granted if the dividend is paid in the form of Common
Stock shall be determined in accordance with the manner in which adjustments are
determined under the Plan.
5. Withholding
Taxes. Executive shall
pay to the Company, or make provision satisfactory to the Company for payment
of, any federal, state, local or foreign taxes required by law to be withheld in
connection with the Award, no later than the date on which such withholding is
required under applicable law. The Company shall have no obligation
to deliver shares of Common Stock until the tax withholding obligations of the
Company have been satisfied by Executive.
6. Rights as
a Shareholder. Executive shall have no rights as a stockholder
with respect to any shares which may be issued in settlement of the Units until
the date of the issuance of a certificate for such shares (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company), subject to the restrictions herein.
7. Restrictive
Covenants.
a. Non
Competition:
(i) During
the term of Executive’s employment with the Company (or one of its subsidiaries
or affiliates) and for one (1) year thereafter, except in the course of
Executive performing his/her job responsibilities with the Company, Executive
will not directly or indirectly, in a competitive capacity, engage or invest in,
own, manage, operate, finance, control or participate in the ownership,
management, operation, financing or control of, be employed by or under contract
with (including as a director, advisor, or consultant), lend Executive’s name or
any similar name to, lend Executive’s credit to or render services or advice to,
or plan or prepare to do any of the foregoing with any business organization or
entity whose products or activities compete or intend to compete with the
Company in the United States or Canada on food products produced by the Company
(including those of its subsidiaries and operating divisions) (“Competing
Company”) at the time of termination of employment; provided however, Executive
may purchase or otherwise acquire up to (but not more than) five percent (5%) of
any class of securities of any entity (but without otherwise participating in
the activities of such entity) if such securities are listed on any national or
regional securities exchange or have been registered under §12(g) of the
Securities Exchange Act of 1934, as amended. For
purposes
of this Agreement, a business entity or organization shall be a Competing
Company only if more than ten percent (10%) of its aggregate gross revenues and
more than ten percent (10%) of its aggregate net income are derived from
products or activities which compete or intend to compete with the Company’s
food products in the United States and Canada.
(ii) In
the event Executive violates this Section 7(a), the Recipient shall pay the
Company, within five (5) days of receipt by Recipient of a written demand
therefore, an amount in cash equal to the amount determined by multiplying the
number of shares of Common Stock issued in settlement of Units (without
reduction for any shares of Common Stock delivered by Executive or withheld by
the Company for taxes) by the Fair Market Value of a share of Common Stock on
the date the shares of Common Stock were issued to Executive. In the
event Recipient fails to pay this amount within five (5) days of receipt of a
written demand, the Company shall have the right to seek and obtain any
equitable and injunctive relief (without the requirement to post a bond) that a
court may determine is appropriate. To the extent that the Company is
successful in enforcing this provision, Executive shall be responsible for
paying the Company’s reasonable attorney’s fees and costs.
b. Non Solicitation/Non
Hire:
(i) Whether
for Executive’s own account or the account of any other person or entity,
Executive will not (i) at any time during the Executive’s employment with the
Company and for one (1) year after Executive’s employee termination of
employment, directly or indirectly, solicit as an employee, independent
contractor or otherwise, any person who was a salaried and bonus eligible
employee of the Company at any time during the term of Executive’s employment
with the Company or in any manner induce or attempt to induce any employee of
the Company to terminate his or her employment with the Company or any
affiliate; or (ii) at any time during the Executive’s employment with the
Company s and for one (1) year after Executive’s termination of employment,
interfere with the Company’s relationship with any person or entity who was a
customer or supplier of the Company at the time of Executive’s termination of
employment.
(ii) In
the event Executive violates any provision of this Section 7(b), the Company
shall have the right to take all necessary legal action to enforce this
provision. In addition to any remedies available at law, the Company
shall have the right to seek and obtain any equitable and injunctive relief
(without the requirement to post a bond) that a court may determine is
appropriate. To the extent that the Company is successful in
enforcing this provision, Executive shall be responsible for paying the
Company’s reasonable attorneys’ fees and costs.
(iii) If
Executive breaches any covenant concerning non hire or non solicitation
contained herein or to which Executive is or may become a party in the future,
then, in addition to and without in any way limiting the foregoing or any other
remedies:
(a) any
unvested Units and any vested Units that have not settled as provided herein
shall be forfeited automatically on the date Executive commits such
breach;
(b) in
the event of such a breach, Executive shall pay the Company, within five (5)
days of receipt by Executive of a written demand therefore, an amount in cash
equal to the amount determined; and
(c) Executive
shall pay any damages in excess of the amounts paid to the Company under the
foregoing.
c. The
parties acknowledge and agree that the time and other limitations contained in
this Section are reasonable and necessary for the proper protection of the
Company. However, if any arbitrator or court of competent
jurisdiction finds that the time period of the foregoing covenants is too
lengthy or the geographic coverage and scope of the covenants is too broad, the
restrictive time period shall be deemed to comprise the largest scope
permissible by law under the circumstances. Executive further
acknowledges that, in the event of the termination of his employment with the
Company, Executive’s skills and experience will permit him to find employment in
many markets, and the limitations contained herein will not prevent him from
earning a livelihood. The period of time applicable to any covenant
in this Section shall be extended by the duration of any actual or threatened
violation by Executive of such covenant.
8. Additional
Definitions. For purposes of
this Agreement, the following terms have the meanings set forth
below:
a. “Cause”
shall mean Executive’s willful engaging in gross misconduct; provided, however,
that a termination for cause shall not include termination attributable to (i)
poor work performance, bad judgment or negligence on the part of Executive, (ii)
an act or omission believed by Executive in good faith to have been in or not
opposed to the best interest of the Company and reasonably believed by Executive
to be lawful, or (iii) the good faith conduct of Executive in connection with a
Change of Control (including opposition to or support of such Change of
Control).
b. “Change
of Control” shall mean when (i) a person, as defined under the securities laws
of the United States, acquires all or substantially all of the assets of the
Company or acquires beneficial ownership of more than 50% of the outstanding
voting securities of the Company; or (ii) the directors of the Company,
immediately before a business combination between the Company and another
entity, or a proxy contest for the election of directors, shall as a result of
such business combination or proxy contest, cease to constitute a majority of
the Board of Directors of the Company or any successor
to the
Company. Notwithstanding the foregoing, a Change of Control shall not
include a transaction in which the Company is the continuing or surviving
corporation and which does not result in the outstanding shares of Common Stock
being converted into or exchanged for different securities, cash, or other
property, or any combination thereof.
c. “Disability”
means Executive is unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment that can be
expected to result in death or can be expected to last for a continuous period
of not less than 12 months; or, Executive is, by reason of any medically
determinable physical or mental impairment that can be expected to result in
death or can be expected to last for continuous period of not less than 12
months, receiving income replacement benefits for a period of not less than
three months under an accident and health plan covering employees of
Ralcorp.
9. Entire
Agreement. The Award is
subject in all respects to the terms and conditions of this Agreement and the
Plan. No other communications or representations, written or oral,
made prior or subsequent to this Agreement shall be deemed to amend or modify
the terms of this Agreement except by an agreement in writing executed by the
parties subsequent to the date of this Agreement expressly consenting to such
amendment or modification. Executive hereby waives any rights, and
releases Company from any claim, based on any such prior communications or
representations, if any.
10. No
Employment Rights. This Agreement is
not intended to create and should not be construed as creating a contract
guaranteeing employment of any duration with the Company or its subsidiaries or
affiliates. Employment with the Company and its subsidiaries and
affiliates is at will and can be terminated by Executive or the Company at any
time, for any reason, with or without notice.
11. Binding
Effect. This Agreement
shall inure to the benefit of and be binding upon the Company and its
successors. This Agreement shall be binding upon Executive and
Executive’s heirs, executors, administrators, and assigns. Executive
shall have no right to transfer or assign the right to receive the Award under
this Agreement.
12. Not
Funded/Claims.
a. Any
payments or amounts due under this Agreement are unfunded obligations of the
Company. The Committee shall have the right to determine in its good
faith judgment whether the Performance Target has been achieved in the event of
unusual or non reoccurring items that impact the Company’s earnings per
share.
b. Executive
or other person who feels he is entitled to a benefit or right provided under
this Agreement, or his authorized representative, (hereinafter referred to as
“Claimant”) may make a claim, i.e., a request for benefits under this Agreement,
pursuant to the Committee’s procedures.
c. The
Company shall, within 90 days after its receipt of such claim, make its
determination. However, if special circumstances require an extension of time
for processing the claim, the Company shall furnish the Claimant, within 90 days
after its receipt of such claim, written notification of the extension
explaining the circumstances requiring such extension and the date that it is
anticipated that such written statement will be furnished, and shall provide
such Claimant with its determination not later than 180 days after receipt of
the Claimant’s claim.
In the
event the claim is denied, the Company shall provide such Claimant a written
statement of the Adverse Benefit Determination, as defined below. The notice of
Adverse Benefit Determination shall be delivered or mailed to the Claimant by
certified or registered mail to his last known address, which statement shall
contain the following:
(i) the
specific reason or reasons for Adverse Benefit Determination;
(ii) a
reference to the specific provisions of the Agreement upon which the Adverse
Benefit Determination is based;
(iii) a
description of any additional material or information that is necessary for the
Claimant to perfect the claim;
(iv) an
explanation of why that material or information is necessary; and
(v) an
explanation of the review procedure provided below, including applicable time
limits and a notice of a Claimant’s rights to bring a legal action under ERISA
after an Adverse Benefit Determination on appeal.
(d) Within
60 days after receipt of a notice of an Adverse Benefit Determination as
provided above, if the Claimant disagrees with the Adverse Benefit
Determination, the Claimant, or his authorized representative, may request, in
writing, that the Committee review his claim and may request to appear before
the Committee for such review. If the Claimant does not request a
review of the Adverse Benefit Determination within such 60 day period, he shall
be barred and estopped from appealing the Company’s Adverse Benefit
Determination. Any appeal shall be filed with the Committee at the
address prescribed by the Committee, and it shall be considered filed on the
date it is received by the addressee. In deciding any appeal, the
Committee shall act in its capacity as a named fiduciary.
The
Claimant shall have the rights to:
(i) submit
written comments, documents, records and other information relating to the claim
for benefits;
(ii) request,
free of charge, reasonable access to, and copies of all documents, records and
other information relevant to his claim for benefits.
(e) Within
60 days after receipt by the Committee of a written application for review of a
Claimant’s claim, the Committee shall notify the Claimant of its decision by
delivery or by certified or registered mail to his last known address; provided,
however, in the event that special circumstances require an extension of time
for processing such application, the Committee shall so notify the Claimant of
its decision not later than 120 days after receipt of such
application.
In the
event the Committee’s decision on appeal is adverse to the Claimant, the
Committee shall issue a written notice of an Adverse Benefit Determination on
Appeal that will contain all of the following information, in a manner
calculated to be understood by the Claimant:
(i) the
specific reason(s) for the Adverse Benefit Determination on Appeal;
(ii) reference
to specific Agreement provisions on which the benefit determination is
based;
(iii) a
statement that the Claimant is entitled to receive, upon request and free of
charge, reasonable access to and copies of all documents, records and other
information relevant to the Claimant’s claim for benefits; and a statement of
the Claimant’s right to bring an action under ERISA Section 502(a).
(f) Notwithstanding
anything herein, if a Claimant is denied a benefit because he is determined not
to be disabled and he makes a claim pursuant to such denial, the provisions of
this subsection shall apply. Upon receipt of a claim, the reply
period shall be forty-five (45) days. If, prior to the end of such
45-day period, the claims reviewer determines that, due to matters beyond its
control, a decision cannot be rendered, the period for making the determination
may be extended for up to thirty (30) days, and the claims reviewer shall notify
the Claimant, prior to the expiration of such 45-day period, of the
circumstances requiring an extension and the date by which the reviewer expects
to render a decision. If, prior to the end of the first 30-day
extension period, the claims reviewer determines that, due to matters beyond its
control, a decision cannot be rendered within that extension period, the period
for making the determination may be extended for up to an additional thirty (30)
days, and the claims reviewer shall notify the Claimant, prior to the expiration
of the first 30-day extension period, of the circumstances requiring the
extension and the date by which it expects to render a decision. In
the case of any extension described in this paragraph, the notice of extension
shall specifically explain the standards on which entitlement to a benefit is
based, the unresolved issues that prevent a decision on the claim and the
additional information needed to resolve those issues, and the Claimant shall be
afforded forty-five (45) days within which to provide the specified
information. If information is requested, the period for making the
benefit determination shall be tolled from the date on which notification of an
extension is sent to the Claimant until the date on which the Claimant responds
to the request for information.
Within one hundred eighty (180) days
after receiving the written notice of an adverse disposition of the claim, the
Claimant may request in writing, and shall be entitled to, a review of the
benefit determination. In deciding an appeal of any adverse benefit
determination that is based in whole or in part on a medical judgment, the
reviewer shall consult with a health care professional who has appropriate
training and experience in the field of medicine involved in the medical
judgment. Such health care professional shall be an individual who is
neither an individual who was consulted in connection with the adverse benefit
determination that is the subject of the appeal nor the subordinate of any such
individual. The medical or vocational experts whose advice was
obtained on behalf of the reviewer in connection with the Claimant’s adverse
benefit determination will be identified to the Claimant. If the
Claimant does not request a review within one hundred eighty (180) days after
receiving written notice of the original’s disposition of the claim, the
Claimant shall be deemed to have accepted the original written
disposition.
A decision on review shall be rendered
in writing within a reasonable period of time, but ordinarily not later than
forty-five (45) days after receipt of the Claimant’s request for review, unless
the reviewer determines that special circumstances require an extension of time
for processing the claim. If an extension of time for processing is
required, written notice of the extension shall be furnished to the Claimant
prior to the termination of the initial forty-five (45) period. In no
event shall such extension exceed a period of forty-five (45) days from the end
of the initial period. The extension notice shall indicate the
special circumstances requiring an extension of time and the date by which the
reviewer expects to render the determination on review. In the event
the extension is due to a Claimant’s failure to submit information necessary to
decide the claim, the Claimant shall be afforded forty-five (45) days within
which to provide the specified information, and the period for making the
benefit determination on review shall be tolled from the date on which
notification of the extension is sent to the Claimant until the date on which
the Claimant responds to the request for additional information.
(g) As
used herein, the term “Adverse Benefit Determination” shall mean a determination
that results in any of the following: the denial, reduction, or termination of,
or a failure to provide or make payment (in whole or in part) for, a benefit,
including any such denial, reduction, termination, or failure to provide or make
payment that is based on a determination of the Claimant’s eligibility to
participate in the Agreement.
(h) A
Claimant may bring a legal action with respect to a claim only if (i) all
procedures described above have been exhausted, and (ii) the action is commenced
within ninety (90) days after a decision on review is furnished.
13. Applicable
Law.
To
the extent that Federal laws do not otherwise control, this Agreement and all
determinations made or actions taken pursuant hereto shall be governed by the
laws of the state of Missouri, without regard to the conflict of laws rules
thereof.
IN
WITNESS WHEREOF, the parties have executed this Agreement, this ___ day of
October, 2009.
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RALCORP
HOLDINGS, INC.
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EXECUTIVE
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By: _________________________
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__________________________
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Title:
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[ ]
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