WHEREAS, the Board of Directors (the "Board") has authorized Ralcorp to enter into Management Continuity Agreements with certain key executives of Ralcorp; and
Exhibit
10.2
Corporate
Officer MCA
2006
AMENDED
AND RESTATED
AGREEMENT
between
Ralcorp Holdings, Inc. a Misouri corporation ("Ralcorp") and ________________
(the "Executive"), WITNESSETH:
WHEREAS, the Board of
Directors (the "Board") has authorized Ralcorp to enter
into Management Continuity Agreements with certain key executives of Ralcorp;
and
WHEREAS, the Executive is a key executive of Ralcorp 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 of ▇▇▇▇▇▇▇ (as defined herein), the Board believes it imperative that
▇▇▇▇▇▇▇ be able to rely upon the Executive to continue in the Executive’s
position, and that ▇▇▇▇▇▇▇ be able to receive and rely upon the Executive’s
advice, if it is requested, as to the best interests of Ralcorp 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; and
WHEREAS, the Board and Executive have agreed to amend and restate the terms
of
this Agreement and replace any previous Management Continuity Agreement with
this Agreement.
NOW, THEREFORE, for and in consideration of the premises and other good and
valuable consideration, ▇▇▇▇▇▇▇ and the Executive agree as follows:
1.
Definitions. For purposes of this Agreement, the following terms
shall have the meanings set forth below:
a. “Accounting Firm”
as defined in Section 7.
b. "Base Amount"
shall be the Executive's Base Amount as defined and determined pursuant to
Section 280G of the Code and regulations applicable at the time of the
Executive's Qualifying Termination.
c. "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 higher. If Executive has elected to accelerate or
defer salary (including the Executive's pre-tax contributions under the Ralcorp
Holdings, Inc. Savings Investment Plan and under any benefit plan complying
with
Section 125 of the Code and deferrals pursuant to the Executive Savings
Investment Plan, and any successor plans thereto), said monthly gross salary
shall be calculated as if there had been no acceleration or deferral.
(ii) one-twelfth the
higher of (x) the bonus to which the Executive would be entitled in the fiscal
year in which a Qualifying Termination occurred after assuming all performance
targets (personal and Company targets) were achieved at a level of 100% or
(y)
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 higher.
d. "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 (x) 50% or more of the aggregate voting
power of the then outstanding shares of Stock, other than acquisitions by
Ralcorp or any of its subsidiaries or any employee benefit plan of Ralcorp
(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 (y) all, or
substantially all, of the assets of Ralcorp 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
Directors of Ralcorp. Notwithstanding the foregoing, a Change-in-Control
shall not include a transaction (commonly known as a “▇▇▇▇▇▇ Trust” transaction)
pursuant to which a third party acquires one or more businesses of the Company
by acquiring all of the common stock of Ralcorp 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.
e. "Code" shall mean
the Internal Revenue Code of 1986, as amended.
f. "Company"
shall mean Ralcorp Holdings, Inc. and its wholly owned subsidiaries.
g.
“Continuing Director" means any member of the Board of Directors of ▇▇▇▇▇▇▇,
as
of February 1, 1997 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.
h.
"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.
i. "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.
j.
“Employment Agreement” shall mean an agreement so styled providing for
continuation of salary and bonus payments under certain circumstances and
entered into between ▇▇▇▇▇▇▇ and Executive contemporaneously with the execution
of this Agreement.
k.
“Excise Tax” as defined in Section 7.
l.
“Gross-Up Payment” as defined in Section 7.
m. "Involuntary
Termination" shall be any termination of the Executive's employment with the
Company (a) to which the Executive objects orally or in writing or (b) 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
▇▇▇▇▇▇▇'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.
(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.
(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.
n.
“Non Compete Effective Date” shall mean the date on which the Company or any
entity on its behalf shall pay the Executive all of the severance benefits
to
which the Executive is entitled under paragraph a and b of Section 3
hereunder.
o. "Normal
Retirement Date" shall be the date on which the Executive attains age 65.
p.
“Payment” as defined in Section 7.
q.
The "Payment Period" shall be the following period commencing with the first
day
of the month following that in which a Qualifying Termination occurs:
(i) if the
Qualifying Termination is an Involuntary Termination that occurs at any time
during the first or second year following the Change in Control -- 36 months;
(ii) if the Qualifying
Termination is an Involuntary Termination that occurs at any time during the
third year following the Change in Control -- 24 months;
(iii) if
the Qualifying Termination is a Voluntary Termination that occurs at any time
between six months following a Change in Control and two years following the
Change in Control -- 12 months; or
(iv) if the Qualifying
Termination is a Voluntary Termination that occurs within six months following
a
change in control – 24 months.
but
in no event shall the Payment Period extend beyond the Executive’s Normal
Retirement Date.
r. "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 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.
s. "Retirement
Plan" means the Ralcorp Holdings, Inc. Retirement Plan or any successor
qualified plan, as amended from time to time.
t. "Stock"
means the common stock of Ralcorp or such other security entitling the holder
to
vote at the election of ▇▇▇▇▇▇▇'s directors or any other security outstanding
upon its reclassification, including, without limitation, any stock split-up,
stock dividend or other recapitalization of Ralcorp or any merger or
consolidation of Ralcorp with any of its Affiliates.
u. "Supplemental
Plan" means the Ralcorp Holdings, Inc. Supplemental Retirement Plan as amended
from time to time.
v. "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 directors then in office, 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).
w. "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
"Severance Benefits":
a. Payment in a lump
sum in cash, within 60 days after the Executive's Qualifying Termination, of
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 in a lump
sum in cash, within 60 days after the Executive's Qualifying Termination, of
the
difference between the present values as of the date of the Qualifying
Termination of (a) 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 Ralcorp
at
a compensation level equal to the Executive’s Base Compensation for the entirety
of the applicable Payment Period, and (b) 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
d. Payment,
on a current and ongoing basis, of any actual costs and expenses of litigation
incurred by the Executive, 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.
Such outplacement assistance includes, but is not limited to, office rental,
travel for job interviews, and secretarial services.
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 the Section 3, for a Payment Period of 36 months.
The Executive may file with the Secretary or any Assistant Secretary of Ralcorp
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 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, 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.
Certain Additional Payments by the Company.
a.
Anything in this Agreement to the contrary notwithstanding and except as set
forth below, in the event it shall be determined that 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, but determined without regard
to
any additional payments required under this Section 7) (collectively, 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”) in 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, any income taxes (and any interest and penalties
imposed with respect thereto) and 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.
b.
Subject to the provisions of Section 7(c), all determinations required to be
made under this Section 7, 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
PricewaterhouseCoopers LLP or such other certified public accounting firm as
may
be designated by the Executive (the “Accounting Firm”) which shall provide
detailed supporting calculations both to the Company and the Executive within
15
business days of the receipt of notice from the Executive that there has been
a
Payment, or such earlier time as is requested by the Company. In the event
that the Accounting Firm is serving as accountant or auditor for the individual,
entity or group effecting the Change of Control, the Executive shall appoint
another nationally recognized accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the Accounting Firm
shall be borne solely by the Company. Any Gross-Up Payment, as determined
pursuant to this Section 7, shall be paid by the Company 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 the Company and
the
Executive. As a result of the 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 the company should have been made (“Underpayment”), consistent with the
calculations required to be made hereunder. In the event that the Company
exhausts its remedies pursuant to Section 7(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 the Company to or for the benefit of
the
Executive.
c. The
Executive shall notify the Company in writing of any claim by the Internal
Revenue Service that, if successful, would require the payment by the Company
of
the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after the Executive is informed
in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which it gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(i)
give the Company any information reasonably requested by the Company relating
to
such claim,
(ii) take
such action in connection with contesting such claim as the Company 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 the Company,
(iii) cooperate
with the Company in good faith in order effectively to contest such claim,
and
(iv) permit
the Company to participate in any proceedings relating to such claim.
Provided,
however, that the Company 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, on an after-tax
basis, for any Excise Tax or income tax (including interest and penalties with
respect thereto) imposed as a result of such representation and payment of
costs
and expenses. Without limitation on the foregoing provisions of this
Section 7(c), the Company 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 the tax claimed and sue 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 the Company shall
determine; provided, however, that if the Company directs the Executive to
pay
such claim and sue for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis and shall indemnify and
hold
the Executive harmless, on an after-tax basis, from any Excise Tax or income
tax
(including interest or penalties with respect thereto) imposed with respect
to
such advance or with respect to any imputed income with respect to such advance;
and further provided that any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Executive with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company’s 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.
d.
If, after the receipt by the Executive of an amount advanced by the Company
pursuant to Section 7(c), the Executive becomes entitled to receive any refund
with respect to such claim, the Executive shall (subject to the Company’s
complying with the requirements of Section 7(c) promptly pay to the Company
the
amount of such refund (together with any interest paid or credited thereon
after
taxes applicable thereto). If, after the receipt by the Executive of an
amount advanced by the Company pursuant to Section 7(c), a determination is
made
that the Executive shall not be entitled to any refund with respect to such
claim and the Company 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 forgiven and shall not be required
to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid.
8.
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. The foregoing, however, shall not be
construed as limiting the Company’s obligations to make payments under Section
7. 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.
9.
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.
10.
Covenant Not to Compete; Non Solicitation; and Confidentiality.
a. Executive shall not from the Non Compete Effective
Date until the first anniversary thereof,
(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 Guarantor 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) directly or indirectly, contact, approach or
solicit 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 10,
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 10.
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.
f. The
term “indirectly” as used in this Section 10 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 10 g will terminate
automatically.
11.
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.
IN WITNESS WHEREOF, the undersigned have executed this Agreement effective
on
the ______ day of _______________, 2006.
EXECUTIVE
RALCORP HOLDINGS, INC.
By:
__________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman Corporate
Governance and Compensation
Committee
S:/Employee
Folder/▇▇▇▇▇/2006 MCA’s/ Corp. Officer MCA