Exhibit 10.43
Ralcorp
Holdings, Inc. (the “Company”), effective January 30, 2003, grants this
Non-Qualified Stock Option to ______________ (“Optionee”) to purchase a total of
________ shares of its $.01 par value Common Stock (the “Common Stock”) at a
price of $24.02 per share pursuant to the Ralcorp Holdings, Inc. 2002 Incentive Stock Plan
(the “Plan”). Subject to the provisions of the Plan and the following terms,
Optionee may exercise this option from time to time by tendering to the Company written
notice of exercise together with the purchase price in either cash, or in shares of Common
Stock of the Company at their fair market value as determined by the Nominating and
Compensation Committee of the Company’s Board of Directors (the
“Committee”), or in both cash and such shares.
NOW
THEREFORE, the Company and Optionee agree, for and in consideration of the terms
hereof, as follows:
| 1. |
Normal Exercise — This Option becomes exercisable at the rate of 25%
of the total shares on January 30, 2006, 2007, 2008 and 2009. This Option
remains exercisable through January 29, 2013, unless Optionee is no longer
employed by the Company, in which case the Option is exercisable only if
permitted by, and in accordance with, the provisions of paragraph 2 below. |
| 2. |
Accelerated Exercise — Notwithstanding the above, this Option shall
become exercisable before the normal exercise dates set forth in
paragraph 1 above upon the occurrence of any of the events set forth below
while Optionee is employed by the Company. This Option shall become exercisable
in full on the date of such event and shall remain exercisable for the periods
set forth below or until January 29, 2013, whichever occurs first.
Thereafter, the unexercised portion of this Option is forfeited and may not be
exercised. |
| |
a. |
Death of Optionee (exercisable for three years). |
| |
b. |
Declaration of Optionee’s total and permanent disability (exercisable for
three years) |
| |
c. |
Voluntary termination of Optionee’s employment at or after
attainment of age 62 (exercisable for three years). |
| |
d. |
Involuntary termination of employment of Optionee, other than a Termination for
Cause (exercisable for six months). |
| |
e. |
Occurrence of a Change in Control (exercisable for six months after the
Optionee’s voluntary or involuntary termination of employment following the
Change in Control). |
| 3. |
Forfeiture — This paragraph sets forth the circumstances under which
this Option will be forfeited. All shares not exercisable shall be forfeited
upon the occurrence of any of the following events (any of which is referred to
as a “Forfeiture Event”): |
| |
a. |
Optionee is Terminated for Cause; |
| |
b. |
Optionee voluntarily terminates prior to
age 62; |
| |
c. |
Optionee engages in competition with the Company; or |
| |
d. |
Optionee engages in any of the following actions: |
| |
(i) |
intentional misconduct in the performance of Optionee’s job with the
Company or any subsidiary; |
| |
(ii) |
being openly critical in the media of the Company or any subsidiary or its
directors, officers, or employees or those of any subsidiary; |
| |
(iii) |
pleading guilty or nolo contendere to any felony or any charge involving moral
turpitude; |
| |
(iv) |
misappropriating or destroying Company or subsidiary property including, but not
limited to, trade secrets or other proprietary property; |
| |
(v) |
improperly disclosing material nonpublic information regarding the Company or
any subsidiary; |
| |
(vi) |
after ceasing employment with the Company, inducing or attempting to induce any
employee of the Company or any Subsidiary to leave the employ of the Company or
any subsidiary; |
| |
(vii) |
after ceasing employment with the Company, hiring any person who was a manager
level employee of the Company or any subsidiary; or |
| |
(viii) |
inducing or attempting to induce any customer, supplier, lender, or other
business relation of the Company or any subsidiary to cease doing business with
the Company or any subsidiary. |
| |
Upon
the occurrence of a Forfeiture Event, those portions of this Option not exercisable at the
time of a Forfeiture Event will be forfeited and may not be exercised. Notwithstanding any
other provision of this Option, any portion of this Option exercisable (either in
accordance with the normal exercise dates set forth in paragraph 1 or pursuant to an
acceleration of exercisability under paragraph 2) at the occurrence of a Forfeiture Event
shall remain exercisable for seven days following the occurrence of a Forfeiture Event.
Therefore, any exercisable portion of this Option that is not exercised within such seven
day period will be forfeited and may not be exercised. The Committee or entire Board of
Directors may waive any condition of forfeiture described in this paragraph. |
| 4. |
Change in Control — In the case of a Change in Control (other than 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), Optionee shall have the right (subject to the provisions
of the Plan and any limitation applicable to the Option contained herein)
thereafter and during the term of the Option, to receive upon exercise thereof
the Acquisition Consideration (as defined below) receivable upon the Change in
Control by a holder of the number of shares of Common Stock which would have
been obtained upon exercise of the Option or portion thereof, as the case may
be, immediately prior to the Change in Control. |
| 5. |
Definitions — For purposes of this Agreement, the following terms
have the meanings as set forth below: |
| |
a. |
“Acquisition Consideration” — Shall mean the kind and
amount of shares of the surviving or new corporation, cash, securities, evidence
of indebtedness, other property or any combination thereof receivable in respect
of one share of the Common Stock upon consummation of a Change in Control. In
the case of a Change in Control resulting from the event set forth in paragraph
5(b)(i), the value of the Acquisition Consideration shall be equal to the
highest price paid by such person for a share of the Company’s Common Stock
during the two-year period preceding the date on which such person became the
beneficial owner of more than 50% of the Company’s Common Stock. If such
price is paid in the form of non-cash consideration, the value of the
Acquisition Consideration shall be equal to the fair market value of such
consideration at the time of the purchase of such share. |
| |
b. |
“Change in Control” — Shall mean when (i) a person, as
defined under the securities laws of the United States, 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. |
| |
c. |
“Termination for Cause” — Shall mean the Optionee’s
termination of employment with the Company because of the willful engaging by
the Optionee 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 the Optionee, (ii) an act or omission
believed by the Optionee in good faith to have been in or not opposed to the
best interests of the Company and reasonably believed by the Optionee to be
lawful, or (iii) the good faith conduct of the Optionee in connection with a
Change in Control (including opposition to or support of such Change in
Control). |
| 6. |
This Agreement shall be governed by the laws of the State of Missouri without
reference to the conflict of laws provisions thereof. |
| 7. |
No amendment or modification of this Option shall be valid unless the same shall
be in writing and signed by the Company and Optionee. The foregoing, however,
shall not prevent the Company from amending or modifying the Plan except that no
such amendment or modification shall adversely affect the Optionee’s rights
under this Option Agreement. |
| ACKNOWLEDGED |
|
RALCORP HOLDINGS, INC. |
|
| AND ACCEPTED: |
|
| |
|
By: |
| Optionee |
|
X. X. Xxxxxxxx
Secretary
|
Date |
| |
Location |
| |
S.S.# |
