1
EXHIBIT 10.5
TAX SHARING AGREEMENT
BETWEEN
RALCORP HOLDINGS, INC.
AND
NEW RALCORP HOLDINGS, INC.
THIS AGREEMENT (the "Agreement") dated as of January 31, 1997, is made by and
between Ralcorp Holdings, Inc. ("Ralcorp"), a Missouri corporation, and New
Ralcorp Holdings, Inc., a Missouri Corporation ("New Ralcorp"), and each of the
parties listed on the signature page.
WHEREAS, Ralcorp is the common parent of an affiliated group of domestic
corporations, including New Ralcorp (the successor to Xxxxxxx Foods, Inc.), for
which a consolidated Federal Income Tax Return is filed;
WHEREAS, Ralcorp proposes to distribute to its shareholders all of its stock in
New Ralcorp (the "Distribution") under the Reorganization Agreement among
Ralcorp, New Ralcorp, Branded Subsidiary and Acquiror dated January 31, 1997,
subject to receipt of a favorable ruling from the Internal Revenue Service or
an opinion of counsel that the Distribution qualifies for tax-free treatment
under section 355 of the Code;
WHEREAS, following the Distribution, New Ralcorp will become the common parent
of an affiliated group of domestic corporations for which a consolidated
Federal Income Tax Return will be filed;
WHEREAS, New Ralcorp and its Affiliates will exist independent of Ralcorp and
its Affiliates after the Distribution Date; and
WHEREAS, the parties desire to set forth their agreement relating to their
respective obligations, responsibilities, rights and entitlements with respect
to their Federal, state and local Tax liabilities, as well as certain other Tax
matters, attributable to periods before and after the Distribution;
NOW, THEREFORE, in consideration of the premises and of the agreements herein
set forth, Ralcorp (on its own behalf and on behalf of its Affiliates) and New
Ralcorp (on its own behalf and on behalf of its Affiliates) hereby agree as
follows:
2
ARTICLE I. GENERAL PROVISIONS
SEC. 1 DEFINITIONS
(a) As used in this Agreement:
"Affiliate" shall have the meaning assigned to it in the
Reorganization Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Consolidated State Tax" means, with respect to each state,
any Income Tax payable to any such state in which New Ralcorp or any of its
Affiliates is or may be liable for such Tax on a consolidated, combined or
unitary basis with Ralcorp or any of its Affiliates.
"Distribution Date" means the date that the shares of New
Ralcorp are distributed to the Ralcorp shareholders.
"Federal Tax" means any United States net income,
environmental, excise, alternative or add-on minimum Tax.
"Income Taxes" means any Federal Tax, state or local income or
franchise tax or other tax measured by income and all other taxes reported on
returns which include federal, state or local income or franchise taxes or
other taxes measured by income, together with any interest, penalties or
additions to tax imposed with respect thereto, but excluding therefrom any
taxes imposed by any foreign government or subdivision thereof.
"Income Tax Return" means any federal, state or local
consolidated or separate Tax Return which reports Income Taxes of Ralcorp, New
Ralcorp or any Affiliate thereof.
"Other Taxes" means Taxes other than Income Taxes.
"Post-Distribution Tax Period" means a taxable year or other
taxable period beginning after the Distribution Date, including the portion of
any Straddle Period occurring subsequent to the Distribution Date.
"Pre-Distribution Tax Period" means any taxable year or other
taxable period beginning before, and ending on or before, the Distribution
Date, including the portion of any Straddle Period occurring prior to the
Distribution Date.
"Ralcorp Consolidated Group" means, with respect to any
taxable period, the corporations which are members of the affiliated group of
corporations of which Ralcorp is the common parent (within the meaning of
section 1504 of the Code).
"Straddle Period" means any taxable period that includes (but
does not end on) the Distribution Date.
2
3
"Tax" means (A) any net income, alternative or add-on minimum,
gross income, gross receipts, sales, use, ad valorem, franchise, profits,
license, withholding, payroll, employment, excise, transfer, recording,
severance, stamp, occupation, premium, property, environmental, custom duty, or
other tax, governmental fee or other like assessment or charge of any kind
whatsoever, together with any interest and any penalty, addition to tax or
additional amount imposed by any governmental authority responsible for the
imposition of any such domestic or foreign tax (a "Taxing Authority"); and (B)
any liability of Ralcorp, New Ralcorp or any Affiliate (or, in each case, any
successor in interest thereto by merger or otherwise), as the case may be, for
(x) the payment of any amounts of the type described in clause (A) for any
taxable period resulting from the application of Treasury Regulation section
1.1502-6 or, in the case of any Consolidated State Tax, any similar provision
applicable under State law or (y) for any amount of the type described in (A)
under any Tax sharing, Tax indemnity or other such agreement.
"Tax Return" means all reports, estimates, extensions,
information statements and returns relating to or required by law to be filed
by either Ralcorp and its Affiliates or New Ralcorp and its Affiliates in
connection with any Taxes and in the case of consolidated or combined tax
returns, by Ralcorp on behalf of New Ralcorp and its Affiliates, and all
information returns (e.g., Form W-2, Form 1099) and reports relating to Taxes
and employee benefit plans of either Ralcorp and its Affiliates or New Ralcorp
and its Affiliates.
(b) Any term used in this Agreement which is not defined
in this Agreement shall, to the extent the context requires, have the meaning
assigned to it in the Reorganization Agreement, Code or applicable Treasury
Regulations thereunder, as the case may be.
SEC. 2. RESPONSIBILITIES
Except as otherwise provided herein, New Ralcorp is and will be liable for all
Taxes of (1) New Ralcorp or any New Ralcorp Affiliate for any Pre- or
Post-Distribution Tax Period and (2) Ralcorp or any Ralcorp Affiliate for any
Pre-Distribution Tax Period, including any such liabilities resulting from an
audit or other adjustment to previously filed Tax Returns. Ralcorp will be
liable for all Taxes of Ralcorp or any Ralcorp Affiliate attributable to any
Post-Distribution Tax Period.
In the case of any Straddle Period, Taxes shall be allocated to the
Pre-Distribution Tax Period and the Post-Distribution Tax Period in accordance
with the following principles:
(a) periodic Taxes that are not based on income or receipts (e.g.,
property Taxes) for the relevant portion of any Straddle
Period shall be computed based upon the ratio of the number of
days in the Pre-Distribution Date Tax Period or
Post-Distribution Date Tax Period, as the case may be, and the
number of days in the entire Tax period; and
(b) Taxes for the Pre-Distribution Date Tax Period or
Post-Distribution Date Tax Period, as the case may be (other
than Taxes described in clause (a)) shall be
3
4
computed as if such taxable period ended as of the close of
business on the Distribution Date, and, in the case of any
Taxes attributable to the ownership of any equity interest in
any partnership or other "flowthrough" entity (other than its
Subsidiaries), as if a taxable period of such partnership or
the "flowthrough" entity ended as of the close of business on
the Distribution Date.
SEC. 3. TAX ADJUSTMENTS
New Ralcorp and Ralcorp recognize that since the Distribution Date will occur
on some date during the fiscal year ending September 30, 1997, and certain Tax
Returns will cover a period which includes the Distribution Date, there will be
certain income and expense items of New Ralcorp and its Affiliates and Ralcorp
and its Affiliates which may require adjustments to be made for Tax accounting
and Tax Return preparation between the portion of the fiscal year beginning
October 1, 1996, and ending with the Distribution Date and the portion of the
fiscal year beginning the day after the Distribution Date and ending September
30, 1997. These required Tax adjustments may impact the amount of Taxes due on
certain returns and the applicable payment dates to various government
authorities for any type of Tax covered by this Agreement. Recognizing the
extended return preparation periods, and the time needed to determine such
final tax adjustments between New Ralcorp and Ralcorp, the parties agree that
such tax adjustments shall be made and given effect separate and apart from
other adjustments under the Reorganization Agreement as provided therein.
Notice and documentation of such adjustments shall be provided the other party
within 30 days of determination. Any required payment resulting from such tax
adjustments from one party to the other shall be made within thirty (30) days
of the receipt of written request therefor.
SEC. 4. MUTUAL COOPERATION
New Ralcorp and Ralcorp will, and will cause each of their respective
Affiliates to, cooperate with each other in filing any tax return or consent
contemplated by this Agreement and to take such action as the other party may
reasonably request, including but not limited to the following:
(a) provide data for the preparation of Tax Returns, including schedules,
and make elections that may be required by the other party;
(b) provide required documents and data and cooperate in audits or
investigations of Tax Returns and execute appropriate powers of
attorney in favor of the other party and/or its agents;
(c) file protests or otherwise contest proposed or asserted tax
deficiencies, including filing petitions for redetermination or
prosecuting actions for refund in court and pursuing the appeal of
such actions;
(d) take any of the actions of the type described in Treasury Regulation
section 1.1502-77(a) (describing the scope of the agency of the common
parent of a group of affiliated corporations); and
4
5
(e) file requests for the extension of time within which to file Tax
Returns.
ARTICLE II. FEDERAL INCOME TAXES
SEC. 1. FEDERAL RETURNS
(a) New Ralcorp will join, and will cause each eligible New Ralcorp
Affiliate to join, in the consolidated Federal Tax Income Tax Return
to be filed by Ralcorp for all Pre-Distribution Tax Periods. Ralcorp
will not elect to file separate Federal Tax Income Tax Returns for any
such periods;
(b) New Ralcorp hereby designates, and New Ralcorp agrees to cause each of
the New Ralcorp Affiliates to designate, Ralcorp irrevocably as its
agent for the purpose of taking any and all action necessary or
incidental to the filing of consolidated Federal Tax Income Tax
Returns, including the filing of Internal Revenue Service Form 1122
(consent to be included in the consolidated Federal Tax Return), and
New Ralcorp agrees to deliver, and to cause each of the New Ralcorp
Affiliates to deliver, to Ralcorp executed copies of said Form 1122,
if required. New Ralcorp further agrees to furnish, and to cause each
of the New Ralcorp Affiliates to furnish, Ralcorp with any and all
information requested by Ralcorp in order to carry out the provisions
of this Agreement without any charge to Ralcorp. Ralcorp agrees to
furnish to New Ralcorp any and all information requested by New
Ralcorp in order to carry out the provisions of this Agreement without
any charge to New Ralcorp.
(c) New Ralcorp shall prepare, at its expense, and Ralcorp shall review,
all Federal Tax Income Tax Returns of the Ralcorp Consolidated Group
in respect of any Pre-Distribution Period.
(d) Ralcorp, as the common parent of the Ralcorp Consolidated Group, shall
be responsible for filing all Federal Tax Income Tax Returns required
to be filed by or on behalf of Ralcorp or a Ralcorp Affiliate in
respect of any Post-Distribution Tax Period.
SEC. 2. FEDERAL TAX LIABILITIES
(a) Except as otherwise provided in this Agreement, New Ralcorp and each
New Ralcorp Affiliate shall be liable for, and shall indemnify and
hold Ralcorp and each Ralcorp Affiliate harmless against, any and all
Indemnifiable Losses with respect to Federal Taxes attributable to the
Ralcorp Consolidated Group or any other consolidated group of which
New Ralcorp, Ralcorp or any of their respective Affiliates are or were
members in respect of any Pre-Distribution Tax Period and New Ralcorp
shall be entitled to all refunds of any such Federal Taxes in respect
of such Pre-Distribution Tax Period.
(b) Except as otherwise provided in this Agreement, Ralcorp and each
Ralcorp Affiliate shall be liable for, and shall indemnify and hold
New Ralcorp and each New Ralcorp Affiliate harmless against, any and
all Indemnifiable Losses with respect to Federal Taxes, in respect of
any Post-Distribution Tax Period, attributable to the Ralcorp
Consolidated
5
6
Group or any other consolidated group of which Ralcorp or any of its
Affiliates are or will be members.
(c) If, as a result of operations in a Post-Distribution Tax Period, New
Ralcorp or any of its Affiliates shall have, for Federal Tax purposes,
any losses or credits which may be carried back to a Pre-Distribution
Tax Period, New Ralcorp shall be entitled to any Tax refunds, as a
result of such carrybacks and any Tax refunds (plus interest) received
by Ralcorp or its Affiliates as a result of such carrybacks shall be
remitted to New Ralcorp. Ralcorp agrees to cooperate with New Ralcorp
to obtain such Tax refunds and New Ralcorp agrees to reimburse Ralcorp
for its reasonable expenses related thereto. In the event any such
refund is disallowed to any extent, such refund (including interest
and penalties) shall be remitted to Ralcorp.
(d) If there are timing differences reflected in the Federal Tax Income
Tax Return of the Ralcorp Consolidated Group as filed for either the
taxable year ended September 30, 1996 or the taxable period ending on
the Distribution Date but that are not included in the deferred income
tax balance on the Closing Date Balance Sheet, and such timing
differences reverse in a Ralcorp or Affiliate Income Tax Returns in a
Post-Distribution Tax Period, then notice and documentation of such
adjustments shall be provided the other party within thirty (30) days
of determination, and
(i) If such timing difference reversal results in an actual
increase of Federal Tax liability of Ralcorp for such
subsequent periods, New Ralcorp shall pay Ralcorp the amount
of such liability when due or within thirty (30) days of the
receipt of written request therefore, whichever is later; or
(ii) If such timing difference reversal results in an actual
diminution of Federal Tax liability of Ralcorp for such
subsequent periods, Ralcorp shall pay New Ralcorp the amount
of such actual savings within thirty (30) days of written
notice as provided herein.
(e) Anything in this Agreement to the contrary notwithstanding New Ralcorp
and each New Ralcorp Affiliate shall be liable for and shall indemnify
and hold Ralcorp and each Ralcorp Affiliate harmless against any and
all Indemnifiable Losses (as defined in the Reorganization Agreement)
with respect to Taxes directly arising out of or directly resulting
from any transactions set forth in the Reorganization Agreement, the
other Ancillary Agreements or the Merger Agreement unless such Tax
liability arises as a result of a breach of Ralcorp of its obligations
under Section 10.2 of the Reorganization Agreement.
SEC. 3. FEDERAL TAX ADJUSTMENTS
(a) New Ralcorp's liability under Section 2 hereto for all Taxes for any
Pre-Distribution Tax Period shall be adjusted consistent with any
adjustments made by the Internal Revenue Service to the taxable
income, loss or tax credits of Ralcorp and its subsidiary. For
6
7
purposes of this Agreement, the term "tax credits" shall include, but
shall not be limited to, any business tax credit available under the
Code.
(b) If the Internal Revenue Service shall make an adjustment to the
Consolidated Return of the Ralcorp Consolidated Group for any Pre-
Distribution Tax Period, and such adjustment, consistently applied
would require Ralcorp or a Ralcorp Affiliate to make a corresponding
adjustment to their Federal Tax Income Tax Returns for any
Post-Distribution Period, then
(i) if such corresponding adjustment in the Federal Tax Income Tax
Returns of Ralcorp or any of its Affiliates results in an
increase of Federal Tax liability for such Post-Distribution
Tax Period, New Ralcorp shall pay Ralcorp the amount of such
liability, when due, including any applicable interest,
penalties or additions to tax. Any payment by New Ralcorp to
Ralcorp of a refund or additional tax credit shall be made
within ninety (90) days after such adjustment; or
(ii) if such corresponding adjustment in the Federal Tax Income Tax
Returns of Ralcorp or any of its Affiliates would result in an
actual diminution of Federal Tax liability for such
Post-Distribution Period, whether or not an actual amended
return is filed, Ralcorp shall pay New Ralcorp the amount of
such actual savings plus interest either (a) when such refund
and related interest are received and required to be remitted
within the period provided in this Agreement, or (b) within
ninety (90) days of written notice by New Ralcorp to Ralcorp
that corresponding adjustments should be made, if an amended
return is not filed.
(c) Any interest payment shall be calculated from the same date and at the
rate used by the Internal Revenue Service in computing the interest
payable by it or to it. Unless otherwise provided, all payments
required to be made under this Agreement from one party to another
shall be made promptly after the event which gives rise to the
requirement for payment occurs.
7
8
SEC. 4. CONTEST OF FEDERAL ADJUSTMENTS
Any Federal Tax deficiencies or refund claims which arise with respect to the
consolidated Federal Tax liability of the New Ralcorp Consolidated Group and
which are attributable to any Pre-Distribution Period shall, be defended or
prosecuted by New Ralcorp at its own cost and expense and with counsel and
accountants of its own selection; provided, however, Ralcorp may participate in
any such proceeding at its own cost and expense (in either event such cost or
expense not to include the amount of any payment of any tax claim, interest or
penalties, or of any compromise settlement or other disposition thereof). New
Ralcorp shall have control of any such proceedings, but New Ralcorp shall not
compromise or settle any deficiency of Federal Tax which may reasonably be
expected to affect Ralcorp or any Ralcorp Affiliate without the prior written
consent of Ralcorp, which consent shall not be unreasonably withheld. New
Ralcorp and Ralcorp and their respective Affiliates also agree to execute and
file such Treasury Department waivers, consents, or other forms, Tax Court or
other petitions, refund claims, complaints, powers of attorney and other
documents needed from time to time in order to defend, prosecute or resolve the
Federal Tax deficiencies or refund claims which are the subject of this Article
II, Section 4. Ralcorp shall have a reasonable opportunity to review and
comment upon any documents to be submitted to a court or governmental agency.
ARTICLE III. STATE AND LOCAL INCOME TAXES
SEC. 1. STATE AND LOCAL RETURNS
(a) Ralcorp and the Ralcorp Affiliates have filed separately, or have been
included in combined or consolidated Income Tax Returns, with New
Ralcorp and various New Ralcorp Affiliates in the various states of
the United States and in certain other local jurisdictions in which
they carry on their trade or businesses.
(b) Ralcorp will file, and New Ralcorp and the New Ralcorp Affiliates
consent to the filing of, all combined or consolidated state and local
Income Tax Returns which include the businesses of New Ralcorp and the
New Ralcorp Affiliates for any Pre-Distribution Tax Period. Such
combined or consolidated state and local Income Tax Returns shall be
prepared by New Ralcorp, unless such Income Tax Returns are for a
Straddle Period, in which case Ralcorp shall prepare the Income Tax
Returns subject to the review and approval of New Ralcorp.
(c) Ralcorp will be responsible for filing combined or consolidated state
or local Income Tax Returns for Ralcorp and the Ralcorp Affiliates in
any state or local jurisdiction in which such a return is required for
any Post-Distribution Tax Period.
(d) New Ralcorp and its Affiliates will be responsible for filing the
separate state or local Income Tax Returns for New Ralcorp and each
New Ralcorp Affiliate in each state or local jurisdiction in which
such a return is required for any Pre- or Post-Distribution Tax
Period.
SEC. 2. STATE AND LOCAL TAX LIABILITY
8
9
(a) Except as otherwise provided herein, New Ralcorp shall be responsible
for paying any amount of state and local Income Tax attributable to
Ralcorp or its Affiliates for any Pre-Distribution Tax Period and to
New Ralcorp or its Affiliates for any Pre-Distribution Tax Period or
Post-Distribution Tax Period. Ralcorp or the Ralcorp Affiliates shall
be responsible for paying any state or local Income Tax attributable
to Ralcorp or a Ralcorp Affiliate in respect of any Post-Distribution
Tax Period.
(b) If there are timing differences reflected in the state and local
Income Tax Returns of the Ralcorp Consolidated Group as filed for a
Pre-Distribution Tax Period but which are not included in the deferred
income tax balance on the Closing Date Balance Sheet, and such timing
differences should reverse in Ralcorp Consolidated Group state and
local Income Tax Returns in a Post-Distribution Tax Period, then
notice and documentation of such adjustments shall be provided the
other party within thirty (30) days of determination, and
(i) If such timing difference reversal results in an actual
increase of state and local Income Tax liability of Ralcorp
for such subsequent periods, New Ralcorp shall pay Ralcorp the
amount of such liability when due or within thirty (30) days
of the receipt of written request therefore, whichever is
later; or
(ii) If such timing difference reversal results in an actual
diminution of state and local Income Tax liability of Ralcorp
for such subsequent periods, Ralcorp shall pay New Ralcorp the
amount of such actual savings within thirty (30) days of
written notice as provided herein.
SEC. 3. STATE TAX ADJUSTMENTS
If a state or local Taxing Authority makes an adjustment for an item reported
on a state or local Income Tax Return of Ralcorp or a Ralcorp Affiliate
attributable to a Pre-Distribution Tax Period (including adjustments to tax
basis determination or tax accounting methods with respect to its property and
accounts included in and carried forward from the Distribution Date), any
resulting increase or decrease in the Tax liability of Ralcorp and/or a Ralcorp
Affiliate shall be accounted for between New Ralcorp and Ralcorp in accordance
with the principles and provisions of Article II, Section 3(b) of this
Agreement.
SEC. 4. STATE TAX REFUNDS
(a) If a state or local Income Tax adjustment for an item reported on a
state or local Income Tax Return results in a refund in a Pre-
Distribution Tax Period, that refund will be for the account of New
Ralcorp in accordance with the principles and provisions of this
Agreement on payments under Article III, Sections 2 and 3.
(b) If, as a result of operations during periods commencing after the
Distribution Date, New Ralcorp or a New Ralcorp Affiliate shall have,
for state or local Income Tax purposes, any losses or credits which
may be carried back to a Pre-Distribution Tax Period, New
9
10
Ralcorp shall be entitled to any Tax refunds resulting from such
carrybacks and any Tax refunds (plus interest) received by Ralcorp or
a Ralcorp Affiliate resulting from such carrybacks shall be remitted
to New Ralcorp. Ralcorp agrees to cooperate with New Ralcorp to
obtain such refunds and New Ralcorp agrees to reimburse Ralcorp for
expenses related thereto. In the event any such refund is disallowed,
to any extent, such refund (including interest and penalties) shall be
remitted to Ralcorp.
ARTICLE IV. OTHER TAXES
SEC. 1. OTHER TAXES
New Ralcorp shall be liable for all Other Taxes and Tax Returns (other than
those relating to federal, state and local Income Taxes, the treatment of which
has been set forth above) and for all foreign taxes attributable to Ralcorp or
a Ralcorp Affiliate or New Ralcorp or a New Ralcorp Affiliate in respect of any
Pre-Distribution Tax Period. Ralcorp shall be liable for all such Other Taxes
attributable to Ralcorp or a Ralcorp Affiliate in respect of any
Post-Distribution Tax Period.
SEC. 2. TRANSFER TAXES
New Ralcorp shall pay any and all sales, use, real property, real property
gains, transfer, mortgage recording or stock transfer or stamp taxes or similar
charges directly resulting from the Distribution, the Internal Spinoff, or the
transactions set forth in the Reorganization Agreement or any other Ancillary
Agreement imposed by any federal, state or local authorities.
ARTICLE V. STATE AND LOCAL CONTESTS OF ADJUSTMENTS
SEC. 1. CONTESTS OF ADJUSTMENTS
Any state or local Income Tax or Other Tax liabilities which would result in a
payment under Articles III or IV shall be defended (or prosecuted as a refund
action) by Ralcorp or New Ralcorp, depending on which party is responsible for
such Tax liability under this Agreement, at its own cost and expense and with
counsel and accountants of its own selection. Ralcorp and New Ralcorp agree to
cooperate fully in such defense (or prosecution) and provide promptly such
executed documents as the other party may require from time to time in order to
defend (or prosecute) the tax deficiencies or refund claims which are the
subject of Articles III or IV. Neither party shall compromise or settle any
deficiency of tax which would result in a payment under Article III or IV
without the prior written consent of the other, which consent shall not be
unreasonably withheld.
SEC. 2. PAYMENTS
New Ralcorp agrees to pay to Ralcorp and Ralcorp agrees to pay to New Ralcorp
as the case may be, any amounts determined to be for the account of Ralcorp or
New Ralcorp as finally determined under Articles III or IV. Such payment shall
be made within thirty (30) days after the final adjustment giving rise to such
payment. Any interest payment shall be calculated from the
10
11
same date and at the same rate used by the applicable state, local or foreign
tax authority in computing the interest payable by it or to it.
ARTICLE VI. DISPUTE RESOLUTION
For the purposes of this Agreement, all computations or recomputations of
federal, state, local or foreign income and franchise tax liability, and all
computations or recomputations of any amount or any payment (including, but not
limited to, computations of the amount of the tax liability, any loss or credit
or deduction, statutory tax rate for a year, interest payments, and
adjustments) and all determinations of payments or repayments, or determination
of any other nature required to be made pursuant to this Agreement, shall be
based on the assumptions and conclusions of the party making the computations.
If either New Ralcorp or Ralcorp objects thereto in writing, addressed to the
other party, the provisions of Article XII in the Reorganization Agreement
between the parties shall be applicable to resolve any issues under this Tax
Sharing Agreement.
ARTICLE VII. MISCELLANEOUS PROVISIONS
SEC. 1. GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Missouri and shall be binding on the
successors and assigns of the parties hereto.
SEC. 2. ENTIRE AGREEMENT. Unless specified otherwise, this Agreement contains
the entire agreement between the parties hereto with respect to the subject
matter hereof and supersedes all prior written agreements, memoranda,
negotiations and oral understandings, if any.
SEC. 3. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument.
SECTION 4. NOTICES. All notices, demands, claims, or other communications
under this Agreement shall be in writing and shall be deemed to have been given
upon the delivery or mailing thereof, as the case may be, if delivered
personally or sent by certified mail, return receipt requested, postage
prepaid, to the parties at the following addresses (or at such other address as
a party may specify by notice to the other):
11
12
If to Ralcorp, to:
General Xxxxx
P.O. Box 1113
Number Xxx Xxxxxxx Xxxxx Xxxx.
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Xx.
cc: General Xxxxx
P.O. Box 1113
Number Xxx Xxxxxxx Xxxxx Xxxx.
Xxxxxxxxxxx, XX 00000
Attention: Xxx X. Xxxxxxxxxxx
If to New Ralcorp, to:
New Ralcorp Holdings, Inc._
000 Xxxxxx Xxxxxx, Xxxxx 0000_
Xx. Xxxxx, Xxxxxxxx 63101_
Attention: Xxxxxx X. Lockwood_
SEC. 5. COSTS AND EXPENSES. Except as expressly set forth in this Agreement,
each party shall bear its own costs and expenses incurred pursuant to this
Agreement.
SEC. 6. TERMINATION AND SURVIVAL. Notwithstanding anything in this Agreement
to the contrary, this Agreement shall remain in effect and its provisions shall
survive for the full period of all applicable statutes of limitation (giving
effect to any extension, waiver or mitigation thereof).
SEC. 7. SECTION HEADINGS. The section headings contained in this Agreement
are for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
SEC. 8. AMENDMENTS; NO WAIVERS.
(a) Any provision of this Agreement may be amended or waived if,
and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by Ralcorp and New
Ralcorp or, in the case of a waiver, by the party against whom
the waiver is to be effective.
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof
nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other
right, power or privilege.
12
13
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first above written.
NEW RALCORP HOLDINGS, INC. XXXXXXX, INC.
BY /s/ J. R. XXXXXXXXXX BY /s/ J. R. XXXXXXXXXX
------------------------------------ ------------------------------------
[NAME] J. R. XXXXXXXXXX [NAME] J. R. XXXXXXXXXX
[TITLE] CHIEF EXECUTIVE OFFICER [TITLE] CHIEF EXECUTIVE OFFICER
AND PRESIDENT
RALCORP HOLDINGS, INC. BEECH-NUT NUTRITION CORPORATION
BY /s/ J. R. XXXXXXXXXX BY /s/ J. R. XXXXXXXXXX
------------------------------------ ------------------------------------
[NAME] J. R. XXXXXXXXXX [NAME] J. R. XXXXXXXXXX
[TITLE] CHIEF EXECUTIVE OFFICER [TITLE] CHIEF EXECUTIVE OFFICER
AND PRESIDENT
XXXXXXX FINANCE, INC. NATIONAL OATS COMPANY
BY /s/ J. R. XXXXXXXXXX BY /s/ J. R. XXXXXXXXXX
------------------------------------ ------------------------------------
[NAME] J. R. XXXXXXXXXX [NAME] J. R. XXXXXXXXXX
[TITLE] AUTHORIZED SIGNATORY [TITLE] CHIEF EXECUTIVE OFFICER
13
