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EXHIBIT 10.05(D)
EMPLOYMENT AGREEMENT
This Contract made between Xxxxx X. Xxxxxx ("Employee"), whose address is
______________________ and Ralcorp Holdings, Inc., a corporation with its
principal place of business at 000 Xxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx, and its
subsidiaries and affiliates ("the Company).
In consideration of the mutual convenants and promises, hereinafter set
forth, the parties hereto agree as follows:
RECITALS
WHEREAS, Employee is presently employed by the Company as Corporate Vice
President and Director of Customer Development, Xxxxxxx Foods, Inc., and has
extensive experience as an executive level manager for the Company, and
WHEREAS, the Company is presently contemplating a spin-off from its parent
company, Ralcorp Holdings, Inc., and a business reorganization and desires to
secure Employee's employment for a definite period of time in anticipation of
such spin-off and reorganization, and
WHEREAS, Employee desired to be employed by the Company in the executive
capacity described below:
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the Company and Employee hereby agree as follows:
SECTION ONE
EMPLOYMENT
The Company hereby employs Employee as its Corporate Vice President and
Director of Customer Development, Xxxxxxx Foods, Inc. Employee's day to day
reporting responsibilities
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shall be to the Company's Chief Executive Officer. The Company may modify
or realign Employee's duties and responsibilities as it deems necessary during
the term of this Agreement.
SECTION TWO
BEST EFFORTS OF EMPLOYEE
Employee agrees that he will at all times faithfully and to the best of
his ability, experience and talent, perform all of the duties that may be
required of or from him pursuant to the express and implicit terms hereof.
Employee acknowledges that he is obligated to manage the business of the
Company in a sound and business like manner and in conformity with all laws and
regulations governing the conduct of the business of the Company including, but
not limited to, laws and regulations relating to anti-trust, employment
practices, employee health and safety, and environmental matters.
SECTION THREE
TERM
A. This Employment Agreement is contingent upon the Company's completion
of its anticipated spin-off and reorganization. In the event that such
spin-off and reorganization does not occur, this Agreement shall be deemed to
be null, void and of no effect.
B. In the event that such spin-off and reorganization is completed, this
Agreement shall continue until January 31, 2000 unless otherwise terminated in
accordance with the provisions of SECTION SIX hereof. This Agreement may be
extended for additional periods upon the mutual written agreement of the
parties.
SECTION FOUR
COMPENSATION
A. Effective the first day of the month following the spin date the
Company shall pay Employee a monthly base salary of $12,667, payable on the
last day of each month. The base
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salary may be changed by mutual agreement of the parties at any time during the
term of this Agreement; provided, however, that until January 31, 2000,
Employee's monthly base salary shall not be less than the amount set forth
above.
B. In addition to the base salary set forth in Paragraph A, the Company
shall pay Employee an annual bonus of $55,000, payable in October of each year.
The bonus may be changed by mutual agreement of the parties at any time during
the term of this Agreement; provided, however, that until January 31, 2000,
Employee's bonus shall not be less than the amount set forth above.
C. In addition to the base salary set forth in Paragraph A, Employee shall
be provided with an executive level benefit program including stock options
and/or stock grants as determined by the Company.
SECTION FIVE
CHANGE OF CONTROL
After the spin-off and reorganization of the Company, Employee and the
Company will enter into a Management Continuity Agreement. Such Agreement will
be in addition to this Agreement. Prior to the spin-off and reorganization,
the Management Continuity Agreement previous entered into by Employee shall
control in the event of a change in control involving the Company.
SECTION SIX
TERMINATION
A. The Company reserves the right to terminate the employment of Employee
at any time without cause. However, except as provided in SECTION SIX B below,
if such termination occurs prior to January 31, 2000, Employee shall be
entitled to his base salary and bonus as set forth in SECTIONS FOUR A and B
until January 31, 2000, provided that Employee remains in compliance with the
terms and conditions of this Agreement. In addition, any awards previously
granted to Employee under the Company's Incentive Stock Plan, including, but
not limited to
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any restricted stock awards, stock options or similar incentive stock awards,
or benefits, including a Company matching contribution under its Deferred
Compensation Plan for Key Employees, shall vest, unless such termination occurs
pursuant to SECTION SIX B. During any period of time in which Employee's base
salary and bonus is continued pursuant to this SECTION SIX, Employee agrees
that he shall make himself available to render consulting services, as
requested by the Company, from time to time until such time as he may become
employed on a full-time basis elsewhere.
B. Notwithstanding the other provisions of this Agreement, the Company
shall be entitled to terminate this Agreement immediately and without notice
if, at any time during this Agreement Employee: (i) refuses without cause to
perform his assigned duties, be openly critical in the media of officers or
directors of the Company, engage in any conduct which the Board of Directors
determines to be inimical to or contrary to the best interests of the Company,
be convicted or plead guilty or nolo contendere to any felony or any charge
involving illegal drugs or any other crime involving moral turpitude, or
otherwise materially breach this Agreement; (ii) becomes incapable by reason of
physical or mental disability of performing the essential functions of his
position; or (iii) dies. In such case the Company shall only be obligated to
pay Employee any base salary due (prorated on a daily basis) to the date of the
breach or other occurrence.
C. In the event Employee voluntarily terminates his employment, Employee
shall not be entitled to receive any of the pay or benefits that are provided
pursuant to this Agreement, unless such termination is a constructive
termination. In the event of such termination, the remaining provisions
of this Agreement shall remain effective. A constructive termination is defined
as a material change in the Employee's title, responsibilities, office
location, compensation or benefit.
D. In the event that Employee's employment is terminated for any reason,
Employee shall not be eligible to participate in any severance pay plan
established by the Company for its employees.
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SECTION SEVEN
BENEFITS
It is agreed that, during the term of this Agreement, Employee shall be
eligible for coverage under such pension plan, group health insurance plan,
401(k) plan, vacation, holiday and other employee programs or policies in
effect from time to time for salaried employees of the Company, except as
provided in SECTION SIX C above. Neither participation in any such plan,
program or policy nor continuation of base compensation to Employee pursuant to
SECTION SIX A shall be deemed to extend Employee's employment with the Company
or his participation in any such plan, program or policy.
SECTION EIGHT
CONFIDENTIALITY
Employee agrees that, in addition to any other limitations contained in
this Agreement, regardless of the circumstances of Employee's termination of
employment, he will not take, or communicate or disclose to any person, firm,
corporation or other entity, any information relating to the Company's customer
lists, prices, trade secrets, methods, systems, advertising, or any other
confidential knowledge or secrets that Employee might from time to time acquire
with respect to the business of the Company or any of its affiliates or
subsidiaries, unless Employee obtains written consent of the Company. Employee
also specifically acknowledges the continued validity and effect of any
Agreement as to Confidentiality and Inventions previously signed by Employee
and that the terms of any such agreement are incorporated into this Agreement
by this reference.
SECTION NINE
NON-COMPETITION
In the event Employee's employment terminates pursuant to SECTION SIX,
Employee will not, for the duration of this Agreement and six months
thereafter, for himself, or on behalf of
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any other person, firm, partnership or corporation, engage in the business of
selling or marketing or engage in the design, manufacture and/or sale of any
item or product handled from time-to-time by the Company; nor will he directly
or indirectly, for himself or on behalf of, or in conjunction with, any other
person, firm, partnership or corporation, solicit or attempt to solicit the
business or patronage of any person, firm or corporation or partnership for the
purposes of selling or marketing products manufactured by the Company or other
products similar to those manufactured by the Company or perform such other
incidental business and service in which the Company currently engages.
SECTION TEN
ARBITRATION
As additional consideration for this Employment Agreement, Employee agrees
that any differences, claims, or matters in dispute arising between the
Company and Employee out of or in connection with his employment or the
termination of his employment by the Company including, but not limited to the
terms and conditions of this Agreement, allegations of wrongful termination,
allegations of employment discrimination or allegations of discriminatory or
retaliatory discharge under any federal, state or local discrimination law
shall be submitted by them to arbitration by the American Arbitration
Association, or its successor, and the determination of the American
Arbitration Association, or its successor, shall be final and absolute. The
arbitrator shall be governed by the duly promulgated rules and regulations of
the American Arbitration Association, or its successor, and the pertinent
provisions of the laws of the State of Missouri relating to arbitration. The
decision of the arbitrator may be entered as a judgment in any court of the
State of Missouri or elsewhere.
SECTION ELEVEN
MISCELLANEOUS PROVISIONS
A. This Agreement represents the entire agreement between the parties and
any prior understandings or representations of any kind preceding the date of
this Agreement shall not be
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binding on either party except to the extent incorporated into this Agreement.
This Agreement shall not be altered, amended or modified except in writing
signed by the Chief Executive Officer of the Company and by Employee.
B. This Agreement shall be binding upon and shall inure to the benefit of
the assigns, heirs, legatees or personal representatives of Employee and the
successors or assigns of the Company.
C. Neither this Agreement nor any right or interest hereunder shall be
assignable or transferable by Employee, his beneficiaries or legal
representatives without the Company's prior written consent; provided, however,
that nothing in this Section shall preclude (i) Employee from designating a
beneficiary to receive any benefit payable hereunder upon his death, or (ii)
the executors, administrators, or other legal representatives of his estate
from assigning or transferring any rights hereunder to the person or persons
entitled thereunto.
D. The headings of sections are included solely for convenience of
reference and shall not control the meaning or interpretation of any of the
provisions of this Agreement.
E. This Agreement shall be construed according to the laws of the State of
Missouri.
F. No term or condition of the Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party charged
with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver
shall operate only as to the specific term or condition waived and shall not
constitute a wavier of such term or condition for the future or of any act
other than that specifically waived.
G. If, for any reason, any provision of the Agreement is held invalid,
such invalidity shall not affect any other provision of the Agreement not held
so invalid, and each such other provision shall to the full extent consistent
with law continue in full force and effect.
The parties have entered into this Employment Agreement based solely upon
the terms and conditions set forth herein. THIS AGREEMENT CONTAINS A BINDING
ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
_________ day of __________________, 19__.
RALCORP HOLDINGS, INC.
____________________________ By:_________________________
Xxxxx X. Xxxxxx Xxx X. Xxxxxxxxxx
Chief Executive Officer
