exv10w3



 







Exhibit 10.3




CHANGE IN CONTROL AGREEMENT




     AGREEMENT between Penford Corporation, a Washington corporation (the “Corporation”), and
___ (the “Executive”), dated as of
___ (the “Effective Date”).



RECITALS




     A. The Executive is an executive officer or key employee of the Corporation and an integral
part of its management.



     B. The Corporation wishes to assure both itself and the Executive of continuity of management
in the event of any actual or threatened change in control of the Corporation.



     C. This Agreement is not intended to alter the compensation and benefits that the Executive
could reasonably expect in the absence of the occurrence of a Change in Control, as defined in this
Agreement; consequently, this Agreement will be operative only upon the Executive’s termination
during the term of this Agreement after the occurrence of a Change in Control.



     NOW, THEREFORE, it is hereby agreed as follows;




     1. Definitions. For purposes of this Agreement, the following terms shall have the meanings
set forth below.



          “Average Target Attainment Bonus” shall mean the product of the Executive’s Target Bonus in
the year of the Executive’s termination of employment multiplied by the average of the percentages
of Target Bonuses attained by the Executive for the three fiscal years preceding the year of the
Executive’s termination of employment in which the Executive was a participant in the Corporation’s
bonus plan administered for executive officers and key employees for a full fiscal year, or such
fewer number of fiscal years in which the Executive was a participant in such bonus plan for a full
fiscal year, or the Target Bonus for the year of termination if the Executive has not previously
been a participant for a full fiscal year in such bonus plan. The percentages of Target Bonuses
attained shall be computed by including all bonuses paid with respect to a fiscal year regardless
of whether a bonus is paid pursuant to a plan or awarded on a discretionary basis, but shall not
include any bonus paid in the year of the Executive’s termination of employment or any
discretionary bonus paid which are directly attributable to a Change in Control. For example,
assume the Executive has a Target Bonus in the year of the Executive’s termination of 50% of Base
Salary and with respect to the preceding three fiscal years was awarded bonuses which represented
80%, 120% and 70%, respectively, of the Executive’s then applicable Target Bonuses of 35%, 40% and
40%, then the Average Target Attainment Bonus would be 90% times 50% or 45% of Base Salary.
Management shall maintain a record of the Average Target Attainment Bonuses and such record shall
be reviewed and concurred to by the compensation committee of the Corporation.




 









 








          “Base Salary” shall mean an amount equal to the greater of (i) the Executive’s annual base
salary at the rate in effect on the date of a Change in Control, or (ii) the Executive’s annual
base salary at the rate in effect on the date of the Executive’s termination of employment, either
without regard to any reduction made in connection with an event constituting Good Reason
hereunder. In either case Base Salary shall be determined prior to any deductions actually taken
from salary including without limitation (1) for salary reductions or deferrals under any plan of
the Corporation, (2) for payments of employee benefits under any plan of the Corporation which were
charged to the Executive, and (3) for the purchase of stock under any plan of the Corporation.




          “Cause” means a finding by the Board of Directors in good faith that (i) the Executive’s
employment has been terminated for gross misconduct in connection with the Executive’s position as
an officer of the Corporation that results in demonstrably material injury to the Corporation, or
(ii) the Executive has breached a covenant of the Executive set forth in this Agreement (if, after
written notice by the Corporation to the Executive and a thirty (30) day opportunity by the
Executive to cure during which the Executive does not cure the condition). For this purpose, bad
judgment, negligence and policy disagreements with the Board of Directors shall not constitute
gross misconduct, nor shall any act or omission of the Executive that was reasonably believed by
the Executive to have been in, and not opposed to, the interests of the Corporation.




          “Change in Control” shall mean any of the following events:





	 	(i)	 	The Corporation is merged, consolidated or
reorganized (“Reorganization”) with another entity and as a result of
which less than 50% of the outstanding voting interests or securities
of the surviving or resulting entity immediately after the
Reorganization are owned in the aggregate by the former shareholders of
the Corporation, as the same shall have existed immediately prior to
such Reorganization, in substantially the same proportions as their
ownership before such Reorganization;
	 
	 	(ii)	 	The Corporation sells all or “Substantially
All” of its assets to another entity that is not a wholly-owned
subsidiary or affiliate of the Corporation, provided that a sale shall
constitute Substantially All of the Corporation’s assets only if the
fair market value of the consideration received for such assets exceeds
50% of the fair market value of the Corporation’s average total market
capitalization during the twenty (20) trading days ending twenty (20)
trading days prior to the first public announcement of such sale;
provided further that the fair market value of the consideration
received and the total market capitalization of the Corporation shall
be as reasonably determined by the Board of Directors in good faith and
that both the Corporation’s stock and any publicly traded consideration
received in a sale shall be valued using the closing price for such
security (y) for the period referenced above in the case of the
Corporation’s stock and (z) the




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	 	 	 	average closing prices for the first twenty (20) trading days after
the Closing of any sale or other transaction in which any publicly
traded consideration is received;
	 
	 	(iii)	 	Any person, within the meaning of Sections
3(a)(9), 13(d) or 14(d) (as in effect on the date hereof) of the
Securities and Exchange Act of 1934 (“Exchange Act”) (“Person”), other
than any employee benefit plan then maintained by the Corporation,
acquires more than 40% of the outstanding voting securities of the
Corporation (whether, directly, indirectly, beneficially or of record).
For purposes hereof, ownership of voting securities shall take into
account and shall include ownership as determined by applying the
provisions of Rule 13d-3(d)(1)(i) (as in effect on the date hereof)
pursuant to the Exchange Act; or
	 
	 	(iv)	 	During any 24 month period, individuals who
constitute the Board of Directors of the Corporation at the beginning
of such period cease for any reason to constitute at least a majority
thereof, unless the election, or nomination for election by the
Corporation’s shareholders, of each new director was approved by the
vote of at least two-thirds of the directors then still in office who
were directors of the Corporation at the beginning of such period;
provided that no individual shall be considered so approved if such
individual initially assumed office as a result of or in connection
with an actual or threatened solicitation of proxies or consents by or
on behalf of a Person other than the Board of Directors of the
Corporation.





          “CIC Amount” shall have the meaning set forth in Annex B.




          “Compensation Period” shall have the meaning set forth in Annex B.




          “Disability” shall mean, to the extent such term is not defined in an Employment Agreement, if
any, a physical or mental condition as a result of which the Executive has been approved for
benefits under a Corporation-sponsored long-term disability plan, policy or arrangement in which
the Executive participates.




          “Employment Agreement” shall mean a written offer letter or employment between the Executive
and the Corporation, if any, covering the terms and conditions of employment with the Corporation.




          “Good Reason” shall exist under any of the following conditions (if, after written notice by
the Executive to the Corporation and a thirty (30)day opportunity by the Corporation to cure during
which the Corporation does not cure the condition):





	 	(i)	 	The Executive’s most significant duties,
responsibilities or authority held, prior to the date of the Change in
Control or at any time after the date of the Change in Control are
reduced or




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	 	 	 	diminished in other than an immaterial manner without the Executive’s
written consent;
	 
	 	(ii)	 	Either (A) the Executive’s Base Salary or
Target Bonus are reduced by the Corporation from the levels in effect
immediately prior to a Change in Control without the Executive’s
written consent, or (B) the Executive’s health, welfare and other
benefits referred to in Paragraph 6 are denied or modified in a manner
different than changes applicable to other executive officers of the
Corporation or any controlling entity without the Executive’s written
consent, and (C) the aggregate effect of all such reductions, denials
and modifications (including any increases in compensation, bonuses, or
benefits) represents more than an immaterial reduction to the Executive’s overall
compensation package in existence prior to the Change in Control;
	 
	 	(iii)	 	The Corporation violates the material terms of
this Agreement, or the Executive’s Employment Agreement, if any;
	 
	 	(iv)	 	The Executive is required to relocate his or
her principal place of employment to a location which is more than 50
miles from both his principal place of employment and his principal
residence prior to the announcement of an agreement or transaction that
results in a Change in Control (for avoidance of doubt the principal
place or employment and principal residence for the Executive shall be
set forth on Annex B hereto and shall be updated from time to time,
provided that the failure to so update shall not preclude this
provision from being applicable); or
	 
	 	(v)	 	There is a liquidation, dissolution,
consolidation or merger of the Corporation or transfer or sale of all
or a Substantially All (as defined above) of its assets, unless a
successor (by merger, consolidation or otherwise) to which all or
Substantially All of its assets have been transferred or sold has
assumed (either by operation of law or otherwise) all duties and
obligations of the Corporation under this Agreement and any Employment
Agreement, if any.





          “Outplacement Period” shall have the meaning set forth in Annex B.




          “Target Bonus” shall mean an amount equal to the target bonus payable to the Executive under
the Corporation’s annual incentive bonus plan in effect for the fiscal year of the Executive’s
termination of employment, or other fiscal years specifically referenced in this Agreement, without
regard, to any reduction made in connection with an event constituting Good Reason hereunder.




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          “Termination of the Executive’s Employment” shall (a) mean (i) termination by the Corporation
of the employment of the Executive for any reason other than Cause, death, or Disability; or (ii)
termination by the Executive of his or her employment for Good Reason in the absence of
circumstances that constitute Cause; and (b) shall be interpreted in a manner consistent with the
term “separation from service” under Section 409A(a)(2)(i) of the Internal Revenue Code of 1986, as
amended (“Code”).




          “Waiver and Release Agreement” shall mean the written waiver and release agreement attached
hereto as Annex A, which the Executive must execute on or within forty-five (45) days after his
last day of employment in favor of the Corporation, and not thereafter revoke, in order to be
entitled to receive any payments or benefits under paragraphs 4, 5, 6 and 7 of this Agreement.




     2. Term of Agreement. This Agreement shall remain in effect until terminated by the
Corporation in accordance with this paragraph or, if a Change in Control occurs prior to such
termination by the Corporation, until the obligations of the Corporation pursuant to this Agreement
have been fulfilled. This Agreement shall terminate one year after the date the Corporation gives
the Executive written notice of the termination of this Agreement; except that if a Change in
Control occurs prior to the termination date, this Agreement shall remain in effect with respect to
all rights accruing as a result of the occurrence of the Change in Control.



     3. Termination of Employment. If, during the term of this Agreement, there is a Termination
of the Executive’s Employment within twenty-four (24) months after a Change in Control, then the
Executive shall receive the compensation and benefits described in paragraphs 4, 6 and 7. Section
5 shall apply upon a Change in Control with or without a Termination of the Executive’s Employment.
Notwithstanding the foregoing, a termination shall not have occurred under this Agreement if, in
connection with a Change in Control, the Executive terminates employment with the Corporation and
becomes an employee of the acquiring or controlling entity or one of its affiliates which succeeds
to the business of the Corporation under terms and conditions that would not give rise to Good
Reason had employment with the Corporation continued.



     4. Compensation. Subject to the provisions of paragraphs 3, 10 and 13, the Executive shall
have the right to receive the CIC Amount (as defined in Annex B)) during the Compensation Period
(as defined in Annex B). Fifty percent (50%) of the CIC Amount shall be payable within thirty
(30) days after Termination of the Executive’s Employment and the remaining fifty percent (50%) of
the CIC Amount shall be paid in equal monthly installments over the Compensation Period. In
addition, the Executive shall be paid his or her prorated Target Bonus for the fiscal year in which
the Executive was terminated within thirty (30) days after Termination of the Executive’s
Employment. The prorated Target Bonus shall be determined by multiplying the Target Bonus by a
fraction the numerator of which shall be the number of full or partial months that the Executive
was employed during the fiscal year in which the Termination of the Executive’s Employment
occurred. To the extent a bonus for the fiscal year prior to the year in which the Termination of
the Executive’s Employment occurs has not been paid at the time of the Termination of the
Executive’s Employment, such bonus as determined in good faith and consistently with prior practice
shall be paid to the Executive not later than the time such bonuses were generally paid in the
prior year. Notwithstanding the foregoing, if necessary to



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meet the requirements of subparagraphs (2)(A)(i) and (B)(i) of Code Section 409A(a)(2), the
compensation that would normally be paid during the first six (6) months after the Termination of
the Executive’s Employment shall not be paid to an Executive who is a specified employee (as
defined in Code Section 409A(a)(2)(B)(i)) until the six-month anniversary of the Termination of the
Executive’s Employment (or, if earlier, the date of his or her death). If such a delay is
required, the aggregate compensation for the first six months after the Termination of the
Executive’s Employment shall be paid in a single lump sum on (or as soon as practicable after) the
six-month anniversary, after which time the compensation shall be paid at the same time and in the
same manner as it was paid immediately prior to the Executive’s termination until the end of the
Compensation Period.




     5. Equity. All stock options, restricted stock, restricted stock units and other equity based
rights and interests outstanding immediately prior to the Change in Control shall become vested
immediately prior to the Change in Control and shall be exercisable, transferable, payable or
otherwise available in accordance with the plan, grant, agreement or other instrument setting forth
the Executive’s rights.



     6. Benefits. Subject to the provisions in Paragraphs 3, 10, and 13, accrued vacation through
the date of Termination of the Executive’s Employment shall be paid within thirty (30) days of the
effective date of the Waiver and Release Agreement. The Executive, his or her dependents,
beneficiaries and/or estate shall continue during the Compensation Period to be entitled to all
benefits under medical, dental, life insurance and similar plans (except for any disability plan)
that are in effect on the Executive’s termination date. If by reason of a plan provision, adverse
tax consequences to the Corporation or the Executive, law or government regulation or third-party
contractual restriction the Executive, his or her dependents, beneficiaries and/or estate cannot
receive or participate in a benefit, then the Corporation shall, to the extent necessary, pay or
provide for payment of such benefit or a reasonably equivalent benefit to the Executive, his or her
dependents, beneficiaries and/or estate in the same amount and manner as they would have been
provided by the relevant plan provided by the Corporation prior to the Executive’s termination date
(e.g., through the payment by the Corporation of a portion of COBRA premiums). Notwithstanding the
foregoing, if the Executive is employed by another employer, the Corporation shall not provide any
medical, dental, life insurance or similar benefit to the extent a comparable benefit is provided
by the other employer. The participation of the Executive in the Penford Corporation Retirement
Plan, the Penford Corporation 401(k) Plan or any other plan described in Code Section 401(a) shall
terminate after the Executive’s termination date in accordance with the terms of such plans and the
Corporation shall not be obligated to provide equivalent benefits. Notwithstanding the foregoing,
to the extent necessary to meet the requirements of subparagraphs (2)(A)(i) and (B)(i) of Code
Section 409A(a)(2), the benefits that would normally be provided under this paragraph 6 (including
treatment of the Executive as having not terminated employment for purposes of continued health
and welfare benefits or cash payments in lieu thereof) during the first six (6) months of the
Compensation Period shall not be provided to an Executive who is a specified employee (as defined
in Code Section 409A(a)(2)(B)(i)) until the six-month anniversary of such Executive’s Termination
of Employment (or, if earlier, the date of his or her death). If such a delay is required, the
Executive will not be treated as having continued employment during the first six months of the
Compensation Period until the six-month anniversary of the Executive’s Termination of Employment.
Also on such six-month anniversary, the Executive will receive a lump sum cash



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payment equal to the value of any health and welfare benefits that could not be provided
during such six months. After the six-month anniversary, these benefits under this paragraph 6
will continue through the end of the Compensation Period.




     7. Outplacement Services. Subject to compliance with Paragraphs 3, 10 and 13, the
Corporation shall pay for the cost of senior executive-level outplacement services for the
Executive for the Outplacement Period (defined in Annex B). Outplacement services shall be
provided by such executive outplacement firm selected by the Executive and reasonably approved by
the Corporation. The Executive shall commence utilization of such senior executive-level
outplacement services within ninety (90) days following his or her termination date.



     8. Effect of Death. In the event of death of the Executive during the Compensation Period,
the compensation that would otherwise have been paid to the Executive under this Agreement shall be
paid to the Executive’s estate. Coverage of any dependents under any plan described in paragraph 6
shall continue for the Compensation Period as though the Executive had remained alive. Nothing in
this paragraph shall affect any other payments by the Corporation due in respect of the Executive’s
death.



     9. Section 280G Tax Payment.



     (a) Impact of Section 280G. Except as otherwise provided in Annex B and notwithstanding any
other provisions of this Agreement, if the aggregate “present value” (as defined in Section
280G(d)(4) of the Code) of all “parachute payments” (as defined in Section 280G(b)(2) of the Code)
made to or for the benefit of the Executive under this Agreement equals or exceeds three times the
Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code), such that a deduction
would not be allowed to the Company under Section 280G for all or any part of such payments, or if
the payments made hereunder would cause the Executive to be liable for tax under Section 4999 of
the Code then the parachute payments under this Agreement shall be reduced so that the aggregate
present value of such payments shall total one hundred dollars ($100.00) less than three times the
base amount. The purpose of such reduction is to ensure that the payments to the Executive will
not constitute a parachute payment within the meaning of Section 280G(b)(2) of the Code, that the
Company will be entitled to the maximum deduction for all amounts paid under this Agreement, and
that the Executive will not be subject to tax under Section 4999 of the Code. The Executive shall
have the right to receive the benefit of any amendments to Section 280G of the Code that increase
the amount that may be received without loss of the deduction to the Company.



     (b) Opinion of Counsel. In the event of any change in, or further interpretation of, Sections
280G or 4999 of the Code and the regulations promulgated thereunder, the Executive shall be
entitled by written notice to the Corporation to request an opinion of tax counsel regarding the
application of such change in any of the foregoing, and the Corporation shall use its best efforts
to cause such opinion to be rendered as promptly as practicable. All fees and expenses of tax
counsel incurred in connection with this Agreement shall be borne by the Corporation.



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     10. Waiver and Release. As a condition to receiving any payments and benefits under
paragraphs 4, 6 and 7 hereunder, the Executive shall execute (and not later revoke) the Waiver and
Release Agreement on or within thirty (30) days after written request. The Corporation shall have
no obligation to make any payments or provide any benefits to the Executive hereunder unless and
until the effective date of the Waiver and Release Agreement, as defined therein.



     11. Corporation’s Setoff Rights. The payments and benefits made or provided to the Executive
or to the Executive’s spouse or other beneficiary under this Agreement shall be subject to setoff
by the Corporation by the amount of any claim of the Corporation against the Executive or the
Executive’s spouse or other beneficiary for any debt or obligation of the Executive or the
Executive’s spouse or other beneficiary to the Corporation.



     12. No Mitigation. The Executive shall have no duty to seek employment following termination
of employment or otherwise to mitigate damages. The amounts or benefits payable or available to
the Executive, the Executive’s spouse or other beneficiary under this Agreement shall not be
reduced by any amount the Executive may earn or receive from employment with another employer or
from any other source.



     13. Impact on Existing Severance and Benefit Plans. Payments or benefits under this Agreement
are in lieu of any payments or benefits to which the Executive may be entitled under any other
separation plan or policy of the Corporation, and shall be coordinated with the Executive’s
Employment Agreement, if any, such that the Executive shall receive the maximum amount of
separation pay available under either agreement, but shall not receive any duplication of benefits.
No provision in this Agreement shall be construed to reduce or impair the Executive’s rights and
benefits under such retirement or welfare plans, policies or arrangements. Payments and benefits
provided under paragraphs 4, 5, 6 or 7, however, shall not be considered eligible compensation, nor
shall the period attributable to such payments or benefits be considered eligible service, under
any retirement or welfare plan, policy or arrangement maintained by the Corporation.



     14. Non-Competition, Non-Solicitation, Non-Disparagement and Confidentiality. The Executive
agrees that:



     (a) During the Executive’s employment with the Corporation and during the Compensation Period,
the Executive shall not, either directly or indirectly be employed by or otherwise engaged by or
have any equity interest (other than ownership of 2% or less of the outstanding stock of any entity
listed on the New York or American Stock Exchange or any other recognized stock exchange or
included in the National Association of Securities Dealers Automated Quotation System) in any
business that is directly competitive with any business in which the Corporation or any of its
subsidiaries was involved or had under active consideration immediately prior to the Change in
Control and in which the Executive was engaged during his or her employment prior to a termination.



     (b) During the Executive’s employment with the Corporation and during the Compensation Period,
the Executive shall not, either directly or indirectly



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	 	(i)	 	hire, offer to hire, entice away or in any other manner
persuade or attempt to persuade any officer, employee, consultant or agent of
the Corporation or any of its subsidiaries to alter or discontinue his or her
relationship with Corporation or its subsidiaries, other than general
advertisements not targeted at employees of the Corporation or its
subsidiaries;
	 
	 	(ii)	 	solicit, divert, or in any other manner persuade or attempt to
persuade any supplier of the Corporation or any of its subsidiaries to alter or
discontinue its relationship with the Corporation or any of its subsidiaries;
or
	 
	 	(iii)	 	solicit, divert, take away or attempt to solicit, divert or
take away any customers of the Corporation or its subsidiaries.





     (c) At all times during the Executive’s employment with the Corporation and during and after
the Compensation Period, the Executive will not divulge or appropriate to the Executive’s own use
or the use of others any secret or confidential information or knowledge pertaining to the business
of the Corporation, or any of its subsidiaries, obtained during his employment by the Corporation
or any of its subsidiaries; provided that this provision shall not apply to information that is or
becomes publicly available without breach by the Executive.



     (d) At all times during the Executive’s employment with the Corporation and during and after
the Compensation Period, the Executive will not publicly disparage the Corporation or its
subsidiaries or any of their respective directors, officers or employees. At all times, the
Corporation will not publicly disparage the Executive and will direct its officers and directors to
not publicly disparage the Executive.



     (e) The Corporation and the Executive agree that the provisions of this paragraph 14 do not
impose an undue hardship on the Executive and are not injurious to the public; that this provision
is necessary to protect the business of the Corporation and its subsidiaries; that the nature of
the Executive’s responsibilities with the Corporation have provided the Executive with access to
confidential information that is valuable and confidential to the Corporation and its subsidiaries;
that the Corporation would not enter into this Agreement if the Executive did not agree to the
provisions of this paragraph 14; that the scope of this paragraph 14 is reasonable in terms of
length of time and geographical scope; and that adequate consideration supports this paragraph 14.
In the event that a court determines that the geographical scope of this provision in unreasonably
broad or the length of time is unreasonably long, the Executive agrees that such Court should
narrow such provision to the extent necessary to make it reasonable and enforce the provision as
narrowed. Nothing in this Agreement restricts the Executive from responding to process of law. In
such a circumstance, the Executive must immediately notify the Corporation of such process in order
to enable the Corporation to seek protective relief if appropriate.



     (f) The Executive’s entitlement to benefits under this Agreement is conditioned upon the
Executive’s compliance with the provisions of this paragraph 14.



     15. Arbitration of All Disputes. Any controversy or claim arising out of or relating to this
Agreement or the breach hereof shall be settled by arbitration in the City of Chicago in accordance
with the laws of the State of Washington by three arbitrators, one of whom shall be



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appointed by the Corporation, one of whom shall be appointed by the Executive and one of whom
shall be appointed by the first two arbitrators. The arbitration shall be conducted in accordance
with the rules of the American Arbitration Association, except with respect to the selection of
arbitrators which shall be as provided in this paragraph. Judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. In the event that it shall be
necessary or desirable for the Executive to retain legal counsel or incur other costs and expenses
in connection with the enforcement of the Executive’s rights under this Agreement, the Corporation
shall pay the Executive’s reasonable attorneys’ fees and costs and expenses in connection with such
enforcement (including the enforcement of any arbitration award in court), regardless of the final
outcome, unless the arbitrators shall determine that under the circumstances recovery by the
Executive of any such fees, costs and expenses would be unjust. Notwithstanding any other
provisions of this Agreement regarding dispute resolution, including this paragraph 15, the
Executive agrees that Executive’s violation of any provision of paragraph 14 of this Agreement
(“Restrictive Covenants”) would cause the Corporation irreparable harm which would not be
adequately compensated by monetary damages and that an injunction may be granted by any court or
courts having jurisdiction, restraining the Executive from violation of the terms of this
Agreement, upon any breach or threatened breach of the Executive of the obligations set forth in
any of the Restrictive Covenants. The preceding sentence shall not be construed to limit the
Corporation from any other relief or damages to which it may be entitled as a result of the
Executive’s breach of any provision of this Agreement, including Restrictive Covenants.




     16. Indemnification and Insurance. All rights to indemnification by the Corporation now
existing in favor of the Executive as provided in the Articles of Incorporation or Bylaws of the
Corporation shall continue in full force and effect, and the Corporation shall also advance
expenses for which indemnification may ultimately be claimed as such expenses are incurred to the
fullest extent permitted under applicable law. After a Change in Control, the Corporation shall
not amend its Articles of Incorporation or Bylaws or any agreement in any manner which adversely
affects the rights of the Executive to indemnification thereunder. Any provision contained herein
notwithstanding, this Agreement shall not limit or reduce any rights of the Executive to
indemnification pursuant to applicable law. In addition, the Corporation will maintain directors’
and officers’ liability insurance, or purchase “tail coverage,” for a period of at least six years
for acts and omissions of the Executive through the date on which the Executive’s employment is
terminated, providing coverage comparable to the coverage in effect immediately prior to the Change
in Control.



     17. Notices. Any notices, requests, demands and other communications provided for by this
Agreement shall be sufficient if in writing and if sent by registered or certified mail, or
delivered by a nationally recognized overnight delivery service, postage or charges prepaid, to the
Executive at the last address he has filed in writing with the Corporation and to the Corporation
at its principal executive offices.



     18. Assignment. Neither the Corporation nor the Executive may assign this Agreement or any
rights, duties or obligations hereunder to any third party other than by operation of law or
merger, consolidation, reorganization or sale of the Corporation, without the other party’s
consent. The Corporation’s rights, duties and obligations under this Agreement shall be binding
obligations of any successor in interest to the Corporation to the fullest extent



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enforceable by law. No interest of the Executive (or the Executive’s spouse or other
beneficiary), nor any right to receive any payment or distribution hereunder, shall be subject to
sale, transfer, assignment, pledge, attachment or garnishment or otherwise be assigned or
encumbered, and any attempt to do so shall be void. No such interest or right shall be taken,
voluntarily or involuntarily, for the satisfaction of the obligations or debts of, or other claims
against, the Executive (or the Executive’s spouse or other beneficiary), including claims for
alimony, child support, separate maintenance and claims in bankruptcy.




     19. Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the substantive laws of the State of Washington.



     20. Amendments. This Agreement may not be changed, waived or discharged orally, but only by
an instrument in writing, signed by the party against which enforcement of such change, waiver or
discharge is sought.



     21. Successors. This Agreement shall extend to and be binding upon the Corporation, its
successors and assigns. For purposes of this Agreement, unless the context otherwise requires,
references to the Corporation shall include its subsidiaries.



     22. Severability. In the event that any provision of this Agreement shall be determined to be
invalid or unenforceable for any reason, the remaining provisions of this Agreement shall be
unaffected thereby and shall remain in full force and effect.



     23. Headings. The headings of the paragraphs in this Agreement are solely for convenience or
reference and shall not control the meaning or interpretation of any provision of this Agreement.



     24. Entire Agreement. This Agreement including Annexes A and B constitutes the entire
agreement between the parties with respect to the subject matter hereof and supersedes all prior
agreements, written or oral, between the parties with respect to such subject matter.



[SIGNATURE PAGE TO FOLLOW]




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     IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered
as of the date first above written.



	 	 	 	 	 
	 	 	PENFORD CORPORATION
	 
	 	 	 	 
	 

	 	By	 	 
	 

	 	 	 	 
	 

	 	Title	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	 
	 

	 	 	 	[Executive’s Name]







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ANNEX A




PENFORD CORPORATION




WAIVER AND RELEASE AGREEMENT




     In consideration for the pay and benefits to be provided to me by Penford Corporation (the
“Corporation”) under the terms of paragraphs 4, 6 or 7 of the Penford Corporation Change in Control
Agreement entered into between me and the Corporation, dated
___, ___ (the “Agreement”),
I hereby acknowledge, understand and agree under this agreement (the “Release”) to the following:




	1.	 	In consideration of the foregoing, including, without limitation, payment to me of the
determined amounts under the Agreement, I hereby release the Corporation and all of its
partners, affiliates, parents, predecessors, successors, assigns, officers, members,
directors, trustees, employees, shareholders, agents, administrators, representatives,
attorneys, insurers or fiduciaries, past, present or future (collectively, the “Released
Parties”) from any claims, actions, causes of action, demands, obligations or damages of any
kind arising from my employment and the separation of that employment that I ever had or now
have upon or by reason of any matter, cause or thing, up to and including the day on which I
sign this Release (the “Claims”).
	 
	2.	 	The Claims I am waiving include, but are not limited to, my selection for termination, claims
of wrongful discharge, Claims for the payment of any salary, wages, bonuses or commissions,
Claims under common law or any federal or state statute, include Claims under Title VII of the
Civil Rights Act of 1964, as amended; Claims under the Americans with Disabilities Act; Claims
under the Age Discrimination in Employment Act (“ADEA”); all Claims under the Fair Labor
Standards Act; Claims under the National Labor Relations Act; all Claims under the Family and
Medical Leave Act; Claims relating to the Corporation’s intellectual property, confidential
and proprietary information and trade secrets; Claims of misrepresentation or detrimental
reliance, Claims for severance pay (other than for the separation pay and benefits payable
under the Agreement), Claims based on breach of contract, defamation, intentional infliction
of emotional distress, tort, personal injury, invasion of privacy, violation of public policy,
negligence or any other Claim for any type of relief, whether federal, state or local, whether
statutory, regulatory or common law or otherwise. This Release does not apply to any Claims
directly related to the enforcement of the Agreement, Claims which I may make under state
workers’ compensation or unemployment laws and/or any Claims I cannot waive as a matter of
law.
	 
	3.	 	I intend this Release to be binding on my successors and I specifically (i) waive any
applicable law (and confirm that I have no Claim under any law providing rights to employees)
and (ii) agree not to file or continue any Claim in respect of matters covered by this
Release. I further agree never to institute any suit, complaint, proceeding, grievance or
action of any kind at law, in equity, or otherwise in any court of the United States or in any
state, or in any administrative agency of the United States or any state,




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	 	 	county or municipality, or before any other tribunal, public or private, against the
Corporation arising from or relating to my employment with or my termination of employment
from the Corporation and/or any other occurrences to the date of this Release, other than a
Claim challenging the validity of this Release under the ADEA.






	4.	 	I am further waiving my right to receive money or other relief in any action instituted by me
or on my behalf by any person, entity or governmental agency. Nothing in this Release shall
limit the rights of any governmental agency or your right of access to, cooperation or
participation with any governmental agency, including without limitation, the United States
Equal Employment Opportunity Commission. I further agree to waive my rights under any other
statute or regulation, state or federal, which provides that a general release does not extend
to Claims which the creditor does not know or suspect to exist in his favor at the time of
executing the release, which if known to him must have materially affected his settlement with
the debtor.
	 
	5.	 	I further acknowledge and agree that if I breach the provisions of paragraph 2, 3 or 4 above,
then (i) the Corporation shall be entitled to apply for and receive an injunction to restrain
any such breach, (ii) the Corporation shall not be obligated to continue payment of any pay or
benefits described in paragraph 4 of the Agreement, (iii) I shall be obligated to pay to the
Corporation its costs and expenses in enforcing this Release and defending against such
lawsuit (including court costs, expenses and reasonable legal fees), and (iv) as an
alternative to (iii), at the Corporation’s option, I shall be obligated upon demand to repay
to the Corporation all but $1,000.00 of the pay and benefits paid or made available to me
pursuant to paragraph 4 of the Agreement. I further agree that the foregoing covenants in
this paragraph 5 shall not affect the validity of this Release and shall not be deemed to be a
penalty or a forfeiture.
	 
	6.	 	In further consideration of the promises made by the Corporation in this Release, I
specifically waive and release the Corporation from all Claims I may have as of the date I
sign this Release arising under the ADEA. I further agree that:






	 	(a)	 	My waiver of rights under this Release is knowing and voluntary and in
compliance with the Older Workers Benefit Protection Act of 1990 (“OWBPA”);
	 
	 	(b)	 	I understand the terms of this Release;
	 
	 	(c)	 	The consideration offered by the Corporation under the Agreement in exchange
for the signing of this Release represents consideration over and above that to which I
would otherwise be entitled, and that the consideration would not have been provided
had I not signed or agreed in advance to sign this Release;
	 
	 	(d)	 	The Corporation is hereby advising me in writing to consult with an attorney at
my own expense prior to executing this Release;
	 
	 	(e)	 	The Corporation has given me a period of at least forty-five (45) days within
which to consider this Release;




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	 	(f)	 	Following my execution of this Release, I have seven (7) days in which to
revoke this Release by written notice. An attempted revocation not actually received
by the Corporation prior to the revocation deadline will not be effective;
	 
	 	(g)	 	This entire Release shall be void and of no force and effect if I choose to so
revoke, and if I choose not to so revoke this Release shall then become effective and
enforceable; and
	 
	 	(h)	 	This Section 6 does not waive rights or claims that may arise under the ADEA
after the date I sign this Release. To the extent barred by the OWBPA, the covenant
not to sue contained in Section 3 does not apply to Claims under the ADEA that
challenge the validity of this Release.






	7.	 	To revoke this Release, I must send a written statement of revocation by registered or
certified mail, or delivered by a nationally recognized overnight delivery service, postage or
charges prepaid, to the Corporation at its principal executive offices. The revocation must
be received no later than 5:00 p.m. on the seventh day following my execution of this Release.
If I do not revoke, the eighth day following my acceptance will be the “effective date” of
this Release.
	 
	8.	 	I agree to cooperate fully with the Corporation, other Corporation affiliates, and their
legal counsel in connection with any disputes arising out of matters with which I was directly
or indirectly involved while serving as an employee of the Corporation. This cooperation
shall include, but shall not be limited to, meeting with, and providing information to, the
Corporation and its legal counsel, maintaining the confidentiality of any past or future
privileged communications with the Corporation legal counsel (outside and in-house counsel),
and making myself available to testify truthfully by affidavit, in depositions, or in any
other forum on behalf of the Corporation. The foregoing shall be reasonable and shall not
interfere unreasonably with my then employment. If and to the extent that the Corporation
shall require my assistance pursuant to this Section 8 after the Compensation Period as
defined in the Agreement, the Corporation shall pay me $250 per hour for such services.





[SIGNATURE PAGE TO FOLLOW]




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     I acknowledge that I remain bound by, and reaffirm my intention to comply with, continuing
obligations under any agreements between myself and the Corporation, as presently in effect,
including, but not limited to, my confidentiality obligations.



* * *




     BY SIGNING THIS RELEASE, I ACKNOWLEDGE THAT: I HAVE READ THIS RELEASE AND UNDERSTAND ITS
TERMS; I HAVE HAD THE OPPORTUNITY TO REVIEW THIS RELEASE WITH LEGAL OR OTHER PERSONAL ADVISORS OF
MY OWN CHOICE; I UNDERSTAND THAT BY SIGNING THIS RELEASE I AM RELEASING THE RELEASED PARTIES OF ALL
CLAIMS AGAINST THEM; I HAVE BEEN GIVEN AT LEAST TWENTY-ONE DAYS TO CONSIDER THE TERMS AND EFFECT OF
THIS RELEASE; AND I VOLUNTARILY AGREE TO ITS TERMS.



SIGNED this _____________ day of _________________, 20___.




                                                                                

                    the Executive





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Tier I — CEO and CFO




CHANGE IN CONTROL AGREEMENT




ANNEX B




SPECIFIC PROVISIONS APPLICABLE




TO




___
(“Executive”)




     This Annex B is attached to a Change in Control Agreement between Penford Corporation and the
undersigned Executive and contain specific provisions applicable to the Executive:



     “CIC Amount” shall mean an amount equal to the product of the sum of the Executive’s Base
Salary plus the Executive’s Average Target Attainment Bonus, times 2.5.



     “Compensation Period” shall mean the period between the Executive’s termination date and
thirty (30) months after such termination date.



     “Outplacement Period” shall mean a period of twelve (12) months.



     “Termination of the Executive’s Employment” shall also include:




(iii) termination by written notice from the Executive during the thirty (30) day
period beginning on the one-year anniversary of the date of the Change in Control,
provided that the Executive shall not have been previously terminated by the
Corporation for Cause or terminated his or her employment without Good Reason.



The following shall apply in lieu of Paragraph 9 of the attached Change in Control Agreement.




9. Section 280G Tax Payment.




     (b) Excise Tax. If any payment made or benefit provided to the Executive under paragraphs 4,
5, 6 or 7 (a “Termination Payment”) is subject to an excise tax under Section 4999 of the Code (the
“Excise Tax”), the Corporation (or successor) shall pay an additional amount to the Executive in a
single sum (the “Gross-Up Payment”), so that the net amount of the Termination Payment received by
the Executive is not reduced by the Excise Tax (or by any interest penalties or additions thereto
required to be paid by the Executive).



     (c) Gross-Up Payment. The Gross-Up Payment shall be an amount equal to the sum of (i) the
Excise Tax (plus any interest, penalties or additions thereto required to be paid by the Executive)
on the Termination Payment and (ii) the additional Excise Tax and additional federal, state and
other income taxes (plus any interest, penalties or additions on all such amounts required to be
paid by the Executive) owing on the amount received under clause (i) and owing



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Tier I — CEO and CFO



on the amount received under this clause (ii). The Gross-Up Payment shall be determined at
the expense of the Corporation by a nationally recognized firm of certified public accountants
selected by the Corporation. The Gross-Up Payment shall be based on the following assumptions:





	 	(i)	 	All payments and benefits making up the Termination Payment
shall be deemed “parachute payments” within the meaning of Section 280G(b)(2)
of the Code, and all “excess parachute payments” shall be deemed to be subject
to the Excise Tax, except to the extent that independent tax counsel selected
by the Corporation opines that such payments or benefits are not subject to the
Excise Tax.
	 
	 	(ii)	 	The Executive shall be deemed to pay federal, state and other
income taxes at the highest marginal rate of taxation applicable to the
Executive for the applicable calendar year.





     (d) Payment of Gross-Up. An estimated Gross-Up Payment shall be made to the Executive no
later than thirty (30) business days following the effective date of the Waiver and Release
Agreement as defined therein. In the event the estimated Gross-Up Payment is less than the amount
actually due to the Executive under this paragraph 9, the amount of any shortfall shall be paid to
the Executive within ten (10) business days after the determination of the shortfall. Any
overpayment, or amount refunded to the Executive resulting from an overpayment of the Gross-Up
Payment, shall be paid to the Corporation within ten (10) business days after the determination of
the overpayment or receipt of the refund.



     (e) Opinion of Counsel. In the event of any change in, or further interpretation of, sections
280G or 4999 of the Code and the regulations promulgated thereunder, the Executive shall be
entitled by written notice to the Corporation to request an opinion of tax counsel regarding the
application of such change in any of the foregoing, and the Corporation shall use its best efforts
to cause such opinion to be rendered as promptly as practicable. All fees and expenses of tax
counsel incurred in connection with this Agreement shall be borne by the Corporation.



[SIGNATURE PAGE TO FOLLOW]




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Tier I — CEO and CFO




     The execution of this Annex B to the Change in Control Agreement is hereby acknowledged this
___day of ___, 2006.



	 	 	 	 	 
	 	 	PENFORD CORPORATION
	 
	 	 	 	 
	 

	 	By	 	 
	 

	 	 	 	 
	 

	 	Title	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	 
	 

	 	 	 	[Executive’s Name]






     Principal Residence:



     Principal Place of Employment:



Executive agrees to promptly notify the Corporation of any change in his or her principal
residence or principal place of employment.




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Tier II
— 30 or 24 months




CHANGE IN CONTROL AGREEMENT




ANNEX B




SPECIFIC PROVISIONS APPLICABLE




TO




___
(“Executive”)




     This Annex B is attached to a Change in Control Agreement between Penford Corporation and the
undersigned Executive and contains specific provisions applicable to the Executive:



     “CIC Amount” shall mean an amount equal to the product of the sum of the Executive’s Base
Salary plus the Executive’s Average Target Attainment Bonus, times 2.0.



     “Compensation Period” shall mean the period between the Executive’s termination date and
twenty-four (24) months after such termination date.



     “Outplacement Period” shall mean a period of six (6) months.



     The execution of this Annex B to the Change in Control Agreement is hereby acknowledged this
___ day of ___, 2006.



	 	 	 	 	 
	 	 	PENFORD CORPORATION
	 
	 	 	 	 
	 

	 	By	 	 
	 

	 	 	 	 
	 

	 	Title	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	 
	 

	 	 	 	[Executive’s Name]






     Principal Residence:



     Principal Place of Employment:



Executive agrees to promptly notify the Corporation of any change in his or her principal
residence or principal place of employment.




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Tier III
— 12 months




ANNEX B




SPECIFIC PROVISIONS APPLICABLE




TO




___
(“Executive”)




     This Annex B is attached to a Change in Control Agreement between Penford Corporation and the
undersigned Executive and contains specific provisions applicable to the Executive:



     “CIC Amount” shall mean an amount equal to the product of the sum of the Executive’s Base
Salary plus the Executive’s Average Target Attainment Bonus.



     “Compensation Period” shall mean the period between the Executive’s termination date and
twelve (12) months after such termination date.



     “Outplacement Period” shall mean a period of six (6) months.



     The execution of this Annex B to the Change in Control Agreement is hereby acknowledged this
___day of ___, 2006.



	 	 	 	 	 
	 	 	PENFORD CORPORATION
	 
	 	 	 	 
	 

	 	By	 	 
	 

	 	 	 	 
	 

	 	Title	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	 
	 

	 	 	 	[Executive’s Name]






     Principal Residence:



     Principal Place of Employment:



Executive agrees to promptly notify the Corporation of any change in his or her principal
residence or principal place of employment.



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