AMENDED AND RESTATED MANAGEMENT CONTINUITY AGREEMENT
Exhibit
10.1
CEO
MCA
2006
AMENDED
AND RESTATED
AGREEMENT
between Ralcorp Holdings, Inc., a Missouri 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
Ralcorp (as defined herein), the Board believes it imperative that Ralcorp
be
able to rely upon the Executive to continue in the Executive’s position, and
that Ralcorp 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, Ralcorp and the Executive agree as follows:
| 1. |
Definitions.
For purposes of this Agreement, the following terms shall have the
meanings set forth below:
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a.
“Accounting
Firm” as defined in Section 7.
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b.
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"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.
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c. "Base
Compensation" shall consist of:
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(i)
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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.
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(ii)
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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.
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d.
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"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 “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 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.
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e.
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"Code"
shall mean the Internal Revenue Code of 1986, as
amended.
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f.
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"Company"
shall mean Ralcorp Holdings, Inc. and its wholly owned
subsidiaries.
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g.
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“Continuing
Director" means any member of the Board of Directors of Ralcorp,
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.
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h.
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"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.
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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.
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i.
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"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.
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j.
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“Employment
Agreement” shall mean an agreement so styled providing for continuation of
salary and bonus payments under certain circumstances and entered
into
between Ralcorp and Executive contemporaneously with the execution
of this
Agreement.
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| k. |
“Excise Tax” as defined in Section
7.
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| l. |
“Gross-Up Payment” as defined in Section
7.
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m.
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"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:
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(i)
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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.
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(ii)
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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.
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(iii)
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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.
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(iv)
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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 Ralcorp'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)
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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.
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(vi)
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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.
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The
Executive's continued employment shall not constitute consent to,
or a
waiver of rights with respect to any circumstances set forth
above.
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n.
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"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.
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o.
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"Normal
Retirement Date" shall be the date on which the Executive attains
age
65.
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p.
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"Payment” as defined in Section
7.
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q.
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The
"Payment Period" shall be the following period commencing with the
first
day of the month following that in which a Qualifying Termination
occurs:
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(i)
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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;
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(ii)
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if
the Qualifying Termination is an Involuntary Termination that occurs
at
any time during the third year following the Change in Control
-- 24
months;
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(iii)
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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 the Change in Control -- 24 months; or
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(iv)
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if
the Qualifying Termination is a Voluntary Termination that occurs
within
six months following a change in control -- 24
months.
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but in no event shall the Payment Period extend beyond the Executive’s Normal
Retirement Date.
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r.
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"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.
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s.
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"Retirement
Plan" means the Ralcorp Holdings, Inc. Retirement Plan or any successor
qualified plan, as amended from time to
time.
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t.
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"Stock"
means the common stock of Ralcorp or such other security entitling
the
holder to vote at the election of Ralcorp'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.
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u.
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"Supplemental
Plan" means the Ralcorp Holdings, Inc. Supplemental Retirement Plan
as
amended from time to time.
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v.
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"Termination
for Cause" shall be a termination because
of:
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(i)
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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
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(ii)
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the
willful engaging by the Executive in misconduct which is materially
injurious to the Company, monetarily or otherwise;
or
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(iii)
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the
Executive’s conviction of a felony or a crime involving moral
turpitude;
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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:
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(i)
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bad
judgment or negligence on the part of the Executive other than habitual
negligence; or
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(ii)
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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
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(iii)
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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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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":
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a.
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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;
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b.
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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;
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c.
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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
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| d. |
Payment,
on a curent and ongoing basis, or 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.
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| 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.
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| 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.
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| 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:
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| (i) |
give
the Company any information reasonably requested by the Company relating
to such claim,
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| (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,
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| (iii) |
cooperate
with the Company in good faith in order effectively to contest such
claim,
and
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| (iv) |
permit
the Company to participate in any proceedings relating to such
claim.
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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 xxx 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 xxx 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.
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d.
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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.
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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. |
.
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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.
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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. |
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g.
|
In
the event any sums due the Executive under this Agreement are not
timely
paid, then this Section 10 g will terminate automatically.
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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: __________________________
Xxxx X. Xxxxxxx, Chairman Corporate
Governance and Compensation Committee
S:/Employee
Folder/Xxxxx/2006 MCA’s/ CEO MCA
