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Exhibit 10.4
NABISCO
GROUP HOLDINGS NABISCO LOGO
LOGO
June 28, 2000
To: Nabisco Group Holdings Corp. ("NGH") and
Nabisco Holdings Corp. ("NA")
Restricted Stock Unit Grantee
Dear Grantee:
This represents our agreement and understanding as follows:
1. We confirm that the section of the Restricted Stock Unit Agreements
for 1999 and 2000 between you and NA and/or NGH, as the case may be, have
each been amended by the memorandum dated June 14, 2000 from C. Michael
Sayeau to Nabisco Group Holdings Corp. and Nabisco Holdings Corp. Restricted
Stock Unit Holders entitled "Amendment to Restricted Stock Unit Agreements"
(the "Restricted Stock Unit Memorandum").
2. We confirm that the provisions contained in the Restricted Stock Unit
Memorandum supersede in full Section 14 of the 1999 and 2000 NHC RSU
Agreements and Section 18 of the NGH 2000 RSU Agreement, as previously
contained in those Restricted Stock Unit Agreements.
Please sign both copies of this letter below to confirm our agreement and
understanding with regard to the foregoing amendment. You should return one
signed copy to Phyllis Hartmann, Executive Compensation -- EH-02SE, in the
enclosed envelope and retain one copy for your files.
Grantee Acknowledgment: Very truly yours,
NABISCO GROUP HOLDINGS CORP.
NABISCO HOLDINGS CORP.
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[Signature]
/s/ James Kirkman
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[Print Name]
Grantee's Social Security Number: James A. Kirkman III
Senior Vice President,
------------------------------------- General Counsel & Secretary and
Executive Vice President,
Grantee's Home Address: General Counsel &
Secretary, respectively
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7 CAMPUS DRIVE P.O. BOX 311, PARSIPPANY, NJ 07054-0311
(973) 682-7700 Fax: (973) 539-9150
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AMENDMENT TO RESTRICTED STOCK UNIT AGREEMENTS
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Non-Competition
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Provided that the Grantee is not party to a written employment or
termination agreement with the Company containing restrictions on Grantee's
eligibility to compete with the Company following Grantee's Termination of
Employment, whether or not any such agreement applies to all Terminations of
Employment, in consideration for the grant, Grantee agrees that:
(a) For the twelve (12) month period commencing on the date of
Grantee's Termination of Employment, Grantee shall not engage in
Competitive Employment. As used herein, "Competitive Employment"
means providing any person, company or other entity with any
services, whether as a consultant, employee, investor or otherwise,
regarding any business, product, service or other matter which: (i)
is substantially similar to or competes with any business, product,
service or other matter regarding which Grantee worked for the
Company, or any of its affiliates, during the two (2) years prior to
Grantee's Termination of Employment; or (ii) concerns subject
matters about which Grantee gained proprietary information of the
Company, or its affiliates, during the two (2) year period prior to
Grantee's Termination of Employment.
(b) If the Company reasonably determines that Grantee has materially
violated any of Grantee's obligations under subparagraph (a),
above, then, in addition to any other remedies at law or in equity
it may have: (i) the Company shall have the right to cease payment
of any compensation, salary contribution, benefits, perquisites and
any other remuneration which is due or may become due Grantee under
any employment, salary continuation or similar agreement between the
Company, or any of its affiliates, and Grantee; and (ii) all past,
present and future stock option grants awarded Grantee under the
Plan, including grants which according to their terms are vested,
shall terminate, effective the date on which such violation began
(the "Violation Date"). The Company may demand the return of any
gain realized by Grantee from the exercise of any such grants by
Grantee at any time on or after the date sixty (60) days prior to
the Violation Date. If after such demand Grantee fails to return
said amounts, Grantee acknowledges that the Company has the right
to offset against said amounts any amounts, including compensation,
owed Grantee by the Company or to commence judicial proceedings
against Grantee to recover said amounts and any attorneys' fees and
costs.
(c) Grantee acknowledges and agrees that: (i) the restrictions contained
herein are necessary to protect the legitimate interests of the
Company and impose no undue hardship on Grantee; (ii) the violation
or threatened violation of this Section will result in irreparable
injury to the Company and Grantee consents to the issuance of any
restraining order, preliminary restraining order or injunction,
without bond, which arises from conduct by Grantee in violation
hereof, and the existence of any claim Grantee may have against the
Company will not constitute a defense thereto; (iii) if the Company
prevails in any suit or proceeding to enforce its rights hereunder,
Grantee shall indemnify the Company for all expenses incurred by the
Company, including reasonable attorneys fees; and (iv) no one
employed by or representing the Company has any authority to make
oral statements which modify, waive or discharge in any manner any
provision of this Section.
Nothing herein to the contrary, the foregoing provisions of this
Section shall not apply to any Termination of Employment during the
two-year period beginning on the date of a Change of Control.
