MANAGEMENT CONTINUITY AGREEMENT
Exhibit 10.4
AGREEMENT
between Post Holdings, Inc., a Missouri corporation (“Post”), and
______________________
(the “Executive”), WITNESSETH:
WHEREAS, the Board of Directors (the “Board”) has authorized Post to enter into
Management Continuity Agreements with certain key executives of Post; and
WHEREAS, the Executive is a key executive of Post and has been selected by the Board to be
offered this Management Continuity Agreement; and
WHEREAS, should a third person take steps which might lead to a Change in Control (as defined
herein) of Post, the Board believes it imperative that Post be able to rely upon the Executive to
continue in the Executive’s position, and that Post be able to receive and rely upon the
Executive’s advice, if it is requested, as to the best interests of Post and its shareholders
without concern that the Executive might be distracted by the personal uncertainties and risks
created by such a Change in Control or influenced by conflicting interests.
NOW, THEREFORE, for and in consideration of the premises and other good and valuable
consideration, Post and the Executive agree as follows:
1. Definitions. For purposes of this Agreement, the following terms shall have the
meanings set forth below:
a. “Base Compensation” shall consist of:
(i) The Executive’s monthly gross salary 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. If Executive has
elected to accelerate or defer salary (including the Executive’s pre-tax
contributions under the Post Holdings, Inc. Savings Investment Plan and under
any benefit plan complying with Section 125 of the Code and deferrals pursuant
to the Post Holdings, Inc. Executive Savings Investment Plan, and any
successor plans thereto), the Executive’s Base Compensation shall be
calculated as if there had been no acceleration or deferral; plus
(ii) one-twelfth of the greater of (a) the bonus to which the Executive
would be entitled in the fiscal year in which a Qualifying Termination
occurred assuming all performance targets (personal and Company targets) were
achieved at a level of 100%; or (b) the Executive’s last annual bonus paid by
the Company, whether paid or deferred, preceding the Executive’s Qualifying
Termination or the Change in Control, whichever is greater.
b. “Change in Control” means
(i) the acquisition by any person, entity or “group” within the meaning
of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the
“Exchange Act”), of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of (a) 50% or more of the aggregate
voting power of the then outstanding shares of Stock, other than acquisitions
by Post or any of its
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subsidiaries or any employee benefit plan of Post (or any Trust created
to hold or invest in issues thereof) or any entity holding Stock for or
pursuant to the terms of any such plan, or (b) all, or substantially all, of
the assets of Post or its subsidiaries taken as a whole; or
(ii) individuals who shall qualify as Continuing Directors shall have
ceased for any reason to constitute at least a majority of the Board of Post.
| Notwithstanding the foregoing, a Change in Control shall not include a transaction (commonly known as a “Xxxxxx Trust” transaction) pursuant to which a third party acquires one or more businesses of the Company by acquiring all of the common stock of Post while leaving the Company’s remaining businesses in a separate public company, unless the businesses so acquired constitute all or substantially all of the Company’s businesses. |
c. “Code” shall mean the Internal Revenue Code of 1986, as amended.
d. “Company” shall mean Post Holdings, Inc. and its wholly owned
subsidiaries.
e. “Continuing Director” means any member of the Board of Post, as of
_____________, ______ while such person is a member of the Board, and any other
director, while such other director is a member of the Board, who is recommended or
elected to succeed the Continuing Director by at least two-thirds (2/3) of the
Continuing Directors then in office.
f. “Disability” shall exist when the Executive suffers a complete and
permanent inability to perform any and every material duty of the Executive’s regular
occupation because of injury or sickness.
| To determine whether the Executive is Disabled, the Executive shall undergo examination by a licensed physician and other experts (including other physicians) as determined by such physician, and the Executive shall cooperate in providing relevant medical records as requested. The Company and Executive shall jointly select such physician. If they are unable to agree on the selection, each shall designate one physician and the two physicians shall designate a third physician so that a determination of disability may be made by the three physicians. Fees and expenses of the physicians and other experts and costs of examinations of the Executive shall be shared equally by the Company and the Executive. The decision as to the Executive’s Disability made by such physician or physicians shall be binding on the Company and the Executive. |
g. “Discount Rate” means 120% of the applicable Federal rate determined
under Section 1274(d) of the Code and the regulations thereunder at the time the
relevant payments are made.
h. “Employment Agreement” shall mean an agreement so styled providing for
continuation of salary and bonus payments under certain circumstances and entered into
between Post and the Executive contemporaneously with the execution of this Agreement.
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i. “Involuntary Termination” shall be any termination of the Executive’s
employment with the Company to which the Executive objects orally or in writing or
which follows any of the following:
(i) without the express written consent of the Executive, (a) the
assignment of the Executive to any duties materially inconsistent with the
Executive’s positions, duties, responsibilities and status immediately prior
to the Change in Control or (b) a material change in the Executive’s titles,
offices, or reporting responsibilities as in effect immediately prior to the
Change in Control and with respect to either (a) or (b) the situation is not
remedied within thirty (30) days after the receipt by the Company of written
notice by the Executive; provided, however, (a) and (b) herein shall not
constitute an Involuntary Termination if either situation is in connection
with the Executive’s death or disability;
(ii) without the express written consent of the Executive, a reduction in
the Executive’s annual salary or opportunity for total annual compensation in
effect immediately prior to the Change in Control which is not remedied within
thirty (30) days after receipt by the Company of written notice by the
Executive;
(iii) without the express written consent of the Executive, the Executive
is required to be based anywhere other than the Executive’s office location
immediately preceding the Change in Control, except for required travel on
business to an extent substantially consistent with the business travel
obligations of the Executive immediately preceding the occurrence of the
Change in Control;
(iv) without the express written consent of the Executive, following the
Change in Control (a) failure by the Company or its successor or assigns to
provide to the Executive any material benefit or compensation plan, stock
ownership plan, stock purchase plan, stock based incentive plan, defined
benefit pension plan, defined contribution pension plan, life insurance plan,
health and accident plan, or disability plan in which the Executive is
participating or entitled to participate at the time of the Change in Control
(or plans providing substantially similar benefits) or in which executive
officers of the ultimate parent entity acquiring the Company are entitled to
participate (whichever are more favorable); or (b) the taking of any action by
the Company that would (1) adversely affect the participation in or materially
reduce the benefits under any of such plans either in terms of the amount of
benefits provided or the level of the Executive’s participation relative to
other participants; (2) deprive the Executive of any material fringe benefit
enjoyed by the Executive at the time of the Change in Control; or (3) cause a
failure to provide the number of paid vacation days to which the Executive was
then entitled in accordance with Post’s normal vacation policy in effect
immediately prior to the Change in Control, which in either situation (a) or
(b) is not remedied within thirty (30) days after receipt by the Company of
written notice by the Executive;
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(v) the liquidation, dissolution, consolidation, or merger of the Company
or transfer of all or substantially all of its assets, unless a successor or
successors (by merger, consolidation, or otherwise) to which all or a
significant portion of its assets have been transferred expressly assumes in
writing all duties and obligations of the Company as here set forth; or
(vi) the failure by the Company or its successor or assigns (whether by
purchase, merger, consolidation or otherwise) to expressly assume and agree to
perform this Agreement after a Change in Control.
| The Executive’s continued employment shall not constitute consent to, or a waiver of rights with respect to, any circumstances set forth above. |
j. “Non-Compete Effective Date” shall mean the date on which a Qualifying
Termination occurs which requires the Company, or any entity on its behalf, to pay the
Executive the severance benefits set forth under paragraph a and b of Section 3
hereunder.
k. “Normal Retirement Date” shall be the date on which the Executive
attains age 65.
l. “Payment” shall mean any payment or distribution by the Company to, or
for the benefit of, the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement, any Stock based award or
otherwise).
m. “Payment Period” shall mean the following period commencing with the
first day of the month following that in which a Qualifying Termination occurs:
(i) 36 months, if the Qualifying Termination is an Involuntary
Termination that occurs at any time during the first or second year following
the Change in Control;
(ii) 24 months, if the Qualifying Termination is an Involuntary
Termination that occurs at any time during the third year following the Change
in Control;
(iii) 24 months, if the Qualifying Termination is a Voluntary Termination
that occurs at any time during the first six months following a Change in
Control; or
(iv) 12 months, if the Qualifying Termination is a Voluntary Termination
that occurs at any time between six months following a Change in Control and
three years following a Change in Control;
| but in no event shall the Payment Period extend beyond the Executive’s Normal Retirement Date. |
n. “Qualifying Termination” shall be the Executive’s Voluntary
Termination or Involuntary Termination of employment with the Company except any
termination because of the Executive’s death, retirement at or after
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the Executive’s Normal Retirement Date, or Termination for Cause. Qualifying
Termination shall not include any change in the Executive’s employment status due to
Disability.
o. “Retirement Plan” means the Post Holdings, Inc. Retirement Plan or any
successor qualified plan, as amended from time to time.
p. “Stock” means the common stock of Post or such other security
entitling the holder to vote at the election of Post’s directors or any other security
outstanding upon its reclassification, including, without limitation, any stock
split-up, stock dividend or other recapitalization of Post or any merger or
consolidation of Post with any of its affiliates.
q. “Supplemental Plan” means the Post Holdings, Inc. Supplemental
Retirement Plan as amended from time to time.
r. “Termination for Cause” shall be a termination because of:
(i) the continued failure by the Executive to devote reasonable time and
effort to the performance of the Executive’s duties (other than any such
failure resulting from the Executive’s incapacity due to physical or mental
illness) after written demand therefor has been delivered to the Executive by
the Company that specifically identifies how the Executive has not devoted
reasonable time and effort to the performance of the Executive’s duties; or
(ii) the willful engaging by the Executive in misconduct which is
materially injurious to the Company, monetarily or otherwise; or
(iii) the Executive’s conviction of a felony or a crime involving moral
turpitude;
| in any case as determined by the Board upon the good faith vote of not less than a majority of the Board, after reasonable notice to the Executive specifying in writing the basis or bases for the proposed Termination for Cause and after the Executive has been provided an opportunity to be heard before a meeting of the Board held upon reasonable notice to all directors; provided, however, that a Termination for Cause shall not include a termination attributable to: |
(i) bad judgment or negligence on the part of the Executive other than
habitual negligence; or
(ii) an act or omission believed by the Executive in good faith to have
been in or not opposed to the best interests of the Company and reasonably
believed by the Executive to be lawful; or
(iii) the good faith conduct of the Executive in connection with a Change
in Control (including the Executive’s opposition to or support thereof).
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s. “Voluntary Termination” shall be any termination of the Executive’s
employment with the Company other than an Involuntary Termination or a Termination for
Cause.
2. Operation of Agreement. This Agreement shall not create any obligation on the part
of the Company or the Executive to continue their employment relationship. Anything in this
Agreement to the contrary notwithstanding, no payments shall be made hereunder unless and until
there has been a Change in Control of the Company. This Agreement is not exclusive with regard to
benefits to be provided to the Executive on the Executive’s termination of employment with the
Company and shall not affect any other agreement or arrangement providing for such benefits.
3. Severance Benefits. Provided that the Executive remains in the employ of the
Company until a Change in Control has occurred, then upon the Executive’s Qualifying Termination
within three years after that Change in Control, the Executive shall be entitled to the following
benefits (“Severance Benefits”):
a. Payment of a cash lump sum, within 60 days after the Executive’s Qualifying
Termination, equal to the present value as of the date of the Qualifying Termination
of an income stream equal to the Executive’s Base Compensation payable each month
throughout the applicable Payment Period. For purposes of this subparagraph, present
value shall be calculated by application of the Discount Rate;
b. Continuation during the Payment Period of the Executive’s participation in
each life, health, accident and disability plan in which the Executive was entitled to
participate immediately prior to the Change in Control, upon the same terms and
conditions, including those with respect to spouses and dependents, applicable at such
time; provided, however, that if the terms of any such benefit plan do not permit
continued participation by the Executive, then the Company will arrange, at the
Company’s sole cost and expense, to provide the Executive a benefit substantially
similar to, and no less favorable than, on an after-tax basis, the benefit the
Executive was entitled to receive under such plan immediately prior to the Change in
Control; provided further, however, that the benefit to be provided or payments to be
made hereunder may be reduced by the benefits provided or payments made (in either
case on an after-tax basis) by subsequent employer for the same occurrence or event;
c. Payment of a cash lump sum, within 60 days after the Executive’s Qualifying
Termination, equal to the difference between the present values as of the date of the
Qualifying Termination of (i) the benefits under the Retirement Plan and the
Supplemental Plan which the Executive and the Executive’s beneficiary, if applicable,
would have been entitled to receive had the Executive remained employed by Post at a
compensation level equal to the Executive’s Base Compensation for the entirety of the
applicable Payment Period, and (ii) the Executive’s actual benefit, if any, to which
the Executive and the Executive’s beneficiary are entitled under the Retirement Plan
and the Supplemental Plan. For purposes of this subparagraph, present value shall be
calculated in accordance with Section 417(e)(3) of the Code; no reduction factors for
early retirement shall be applied in the calculation of benefits; and
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d. Payment, on a current and ongoing basis, of any actual costs and expenses of
litigation incurred by the Executive during the Executive’s lifetime, including costs
of investigation and reasonable attorney’s fees, in the event the Executive is a party
to any legal action to enforce or to recover damages for breach of this Agreement, or
to recover or recoup from the Executive or the Executive’s legal representative or
beneficiary any amounts paid under or pursuant to this Agreement, regardless of the
outcome of such litigation, plus interest at the applicable Federal rate provided for
in Section 7872(f)(2) of the Code.
e. Payment, on a current and ongoing basis (up to $20,000 in the aggregate) of
costs or expenses incurred relating to or in the nature of outplacement assistance;
provided that, such costs or expenses shall be limited to those incurred on or before
the last day of the second taxable year following the year in which such Qualifying
Termination occurred, and payment of such costs and expenses shall be made no later
than the third taxable year following the year in which the Qualifying Termination
occurred. Such outplacement assistance includes, but is not limited to, office
rental, travel for job interviews, and secretarial services.
Notwithstanding anything herein to the contrary, to the extent necessary to avoid the adverse tax
consequences under Section 409A of the Code, the amount of expenses eligible for reimbursement, or
in-kind benefits provided, in accordance with this Section 3, during a year shall not affect the
expenses eligible for reimbursement, or in-kind benefits to be provided, in any other year; the
reimbursement of an eligible expense shall be made on or before the last day of the year following
the year in which the expense was incurred; and the right to reimbursement or in-kind benefits
shall not be subject to liquidation or exchange for another benefit.
In the event the Executive’s employment is terminated (other than as a result of a Termination for
Cause) and the Executive objects to such termination orally or in writing and such termination
occurs within 270 days prior to a Change in Control, the Executive shall be treated as meeting the
requirements for severance benefits under Section 3, for a Payment Period of 36 months. Payment
for this purpose shall be made or begin, as applicable, under Section 3 on the date of the Change
in Control (or thereafter as specified) as though the date of the Change in Control were the date
of a Qualifying Termination for purposes of determining the time of payment under Section 3. For
purposes of this paragraph only, a Change in Control shall be deemed to occur only to the extent
the Change in Control meets the requirements of this Agreement and is a change in control event for
purposes of Section 409A of the Code.
The Executive may file with the Secretary or any Assistant Secretary of Post a written designation
of a beneficiary or contingent beneficiaries to receive the payments described in subparagraphs (a)
and (c) above in the event of the Executive’s death following the Executive’s Qualifying
Termination but prior to payment by the Company. The Executive may from time to time revoke or
change any such designation of beneficiary and any designation of beneficiary pursuant to this
Agreement shall be controlling over any other disposition, testamentary or otherwise; provided,
however, that if the Company shall be in doubt as to the right of any such beneficiary to receive
such payments, it may determine to pay such amounts to the legal representative of the Executive,
in which case the Company shall not be under any further liability to anyone. In the event that
such designated beneficiary or legal representative becomes a party to a legal action to enforce or
to recover damages for breach of this Agreement, or to recover or recoup from the Executive or the
Executive’s estate, legal representative or beneficiary any amounts paid
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under or pursuant to this Agreement, regardless of the outcome of such litigation, the Company
shall pay their actual costs and expenses of such litigation incurred during such designated
beneficiary’s or legal representative’s lifetime, including costs of investigation and reasonable
attorneys’ fees, plus interest at the applicable Federal rate provided for in Section 7872(f)(2) of
the Code; provided, however, that the Company shall not be required to pay such costs and expenses
in connection with litigation to determine the proper payee, among two or more claimants, of the
payments described in subparagraphs (a) and (c).
4. Successors to Company; Binding Effect; Assignment. This Agreement shall inure to
the benefit of and be binding upon the Company and its successors. The Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume expressly and agree to
perform this Agreement in the same manner and to the same extent that the Company would be required
to perform it if no such succession had taken place. As used in this Agreement, “Company”
shall mean the Company as herein before defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.
The Company may not assign this Agreement other than to a successor to all or substantially all of
the business and/or assets of the Company. The Executive shall have no right to transfer or assign
the right to receive any severance benefit under this Agreement except as noted in paragraph three
above.
5. Missouri Law to Govern. This Agreement shall be governed by the laws of the State
of Missouri without giving effect to the conflict of laws provisions thereof.
6. Miscellaneous. No provision of this Agreement may be modified, waived or
discharged unless such modification, waiver or discharge is agreed to in writing signed by the
Executive and a duly authorized officer of the Company. No waiver by a party hereto at any time of
any breach by the other party hereto of, or of compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not expressly set forth in this Agreement.
7. Taxes; Set-off. All payments to be made to the Executive under this Agreement will
be subject to required withholding of federal, state and local income and employment taxes,
including any excise tax imposed by Section 4999 of the Code or any interest or penalties incurred
with respect to such excise tax. The right of the Executive to receive benefits under this
Agreement, however, shall be absolute and shall not be subject to any set-off, counter-claim,
recoupment, defense, duty to mitigate or other rights the Company may have against the Executive or
anyone else.
8. Severability. The invalidity and unenforceability of any particular provision of
this Agreement shall not affect any other provision of this Agreement, and the Agreement shall be
construed in all respects as if the invalid or unenforceable provision were omitted.
9. Covenant Not to Compete; Non Solicitation; and Confidentiality.
a. Executive shall not from the Non-Compete Effective Date until the first
anniversary thereof:
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(i) engage (whether as an owner, operator, manager, employee, officer,
director, consultant, advisor, representative or otherwise) directly or
indirectly in any business that produces, develops, markets or sells any type
of food products that compete with those food products produced by the Company
as of the date of a Change in Control; provided however, that ownership of
less than five percent (5%) of the outstanding stock of any publicly-traded
corporation shall not be deemed to be engaging solely by reason thereof in any
of it’s the Company’s businesses; or
(ii) induce or attempt to induce any customer, supplier, lender or other
business relation of the Company to cease doing business with the Company or
any of its subsidiaries.
b. The Executive agrees that during the period beginning on the Non-Compete
Effective Date and ending on the second anniversary thereof, the Executive shall not:
(i) contact, approach, or solicit, either directly or indirectly, for the
purposes of offering employment to, or
(ii) hire (whether as an employee, consultant, agent, independent
contractor or otherwise)
| any senior management level employee employed by the Company (or its successors or assigns) without the prior written consent of the Company or its successors or assigns. |
c. Executive agrees to treat and hold as confidential any information concerning
the business and affairs of the Company that is not or does not become generally
available to the public other than as a result of a disclosure in violation of this
Agreement (the “Confidential Information”), refrain from using any of the
Confidential Information except in connection with this Agreement, and deliver
promptly to the Company or destroy, at the request and option of the Company, all
tangible embodiments (and all copies) of the Confidential Information which are in the
Executive’s possession.
d. Executive acknowledges and agrees that in the event of a breach by the
Executive of any of the provisions of this Section 9, monetary damages shall not
constitute a sufficient remedy. Consequently, in the event of any such breach, the
Company or its successor or assigns shall be entitled to, in addition to the other
rights and remedies existing in their favor, specific performance and/or injunctive or
other relief in order to enforce or prevent any violations of the provisions hereof
from any court of competent jurisdiction in each case without the requirement of
posting a bond or proving actual damages. Further, Executive shall return to the
Company or its successors or assigns sums paid under Section 3 hereof in the event a
court of competent jurisdiction issue a final non-appealable ruling that finds the
Executive breached the terms of this Section 9.
e. The Executive agrees that except in connection with any legal proceeding
relating to the enforcement of this Agreement, following the Non-Compete Effective
Date, the Executive shall not be publicly disparaging of the Company or its officers
or directors.
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f. The term “indirectly” as used in this Section 9 with respect to the
Executive is intended to mean any acts authorized or directed by or on behalf of the
Executive or any entity controlled by the Executive.
g. In the event any sums due the Executive under this Agreement are not timely
paid, then this Section 9 will terminate automatically.
10. Release of Claims. The Executive agrees that in exchange for the payment of all
sums due hereunder, the Executive forever settles, compromises, discharges, forgives and voids all
employment related claims and causes of action the Executive has or may have against the Company
or its successor or assigns.
11. Time of Payment. Notwithstanding anything herein to the contrary, in the event
that the Executive is determined to be a specified employee within the meaning of Section 409A of
the Code and the regulations and other guidance thereunder, for purposes of any payment on
termination of employment hereunder, payment(s) shall be made or begin, as applicable, on the first
payroll date which is more than six months following the date of separation from service, to the
extent required to avoid any adverse tax consequences under Section 409A of the Code and the
regulations and other guidance thereunder.
IN WITNESS WHEREOF, the undersigned have executed this Agreement this ____ day of _________,
20___ and effective on the ____ day of ____________, 20__.
| EXECUTIVE | POST HOLDINGS, INC. | |||||
| By: | ||||||
[Signature] |
||||||
| Name: | ||||||
[Print Name] |
||||||
| Title: | ||||||
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