ex10-2.htm


     

    
      	
              Exhibit
      10.2

            


    

    TREEHOUSE
FOODS, INC.

     PERFORMANCE
UNIT AGREEMENT

     

    THIS
AGREEMENT (the “Agreement”), effective as of the date indicated on the attached
Notice of Grant, is made and entered into by and between TreeHouse Foods, Inc.,
a Delaware corporation (the “Company”), and the individual named on the attached
Notice of Grant (the “Participant”).

    WITNESSETH:

     

    WHEREAS,
the Board of Directors of the Company has adopted and approved the TreeHouse
Foods, Inc. Equity and Incentive Plan (the “Plan”), which was approved, as
required, by the Company’s stockholders and provides for the grant of
stock-based awards and cash incentive awards to certain eligible Employees,
Consultants and non-Employee Directors of the Company and its Affiliates;
and

     

    WHEREAS,
the Compensation Committee (the “Committee”) has selected the Participant to
participate in the Plan and has awarded the performance units described in this
Agreement (the “Units”) to the Participant; and

     

    WHEREAS,
the parties hereto desire to evidence in writing the terms and conditions of the
Units; and

     

    WHEREAS,
capitalized terms used herein and not otherwise defined in this Agreement shall
have the meanings set forth in the Plan.

     

    NOW,
THEREFORE, in consideration of the foregoing and of the mutual covenants and
agreements herein contained, and as an inducement to the Participant to continue
as an Employee of the Company (or an Affiliate) and to promote the success of
the business of the Company and its Affiliates, the parties hereby agree as
follows:

     

    1. Grant of
Units.  The Company hereby grants to the Participant, effective as of
the date shown on the attached Notice of Grant (the “Date of Grant”), and on the
terms and subject to the conditions, limitations and restrictions set forth in
the Plan and in this Agreement, the number of Units shown on the attached Notice
of Grant.  The Participant hereby accepts the Units from the
Company.

     

    2. Transfer
Restrictions.  None of the Units shall be sold, assigned, pledged or
otherwise transferred, voluntarily or involuntarily, by the Participant prior to
the conversion of Units pursuant to paragraph 3, and until permitted
pursuant to the terms of the Plan.

     

    3. Accrual
and Conversion of Units.

     

    (a) For each
of the Performance Periods (________________, _________ and _________), a number
of Units shall accrue equal to approximately (a) ___ of the Units
designated on the Notice of Grant multiplied by (b) the applicable
“Percentage of Units Accrued” as indicated on the chart below based on the
achievement during the applicable Performance Period of the Operating Net Income
goal at the threshold, target or maximum level designated below.  In
addition, for the cumulative Performance Period (_____________________), a
number of cumulative Units shall accrue equal to (i) the number of Units
multiplied by (ii) the applicable “Percentage of Units Accrued” as
indicated on the chart below based on the achievement during the cumulative
Performance Period of the Operating Net Income goal at the threshold, target or
maximum level designated below, minus (iii) any Units accrued during the
Performance Periods.  For purposes of this Agreement, Operating Net
Income shall mean income
from ordinary business activities after operating expenses, income taxes and
interest are deducted, adjusted for one time and non-recurring
items.

     

    (b) The
accrued Units (determined as described in the paragraph above) shall be
converted to Stock or cash, at the discretion of the Committee, on the _____
anniversary of the Date of Grant (but no later than the 45th day after the _____
anniversary), provided that, and except as otherwise provided in paragraph (c)
below, (1) the Committee certifies the attainment of such Operating Net
Income goals in the manner set forth in the Plan and (2) the Participant
continues to be employed by the Company (or an Affiliate) through the _____
anniversary of the Date of Grant.  Each accrued Unit shall be
converted to either (x) one share of Stock or (y) cash equal to the
Fair Market Value of a share of Stock on the _____ anniversary of the Date of
Grant (but no later than the 45th day after the _____ anniversary).

     

    
      
         

      

      
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    (c) If the
Participant’s Service terminates during one of the Performance Periods due to
death, Disability or  Retirement, or the
Company terminates the Participant’s Service without Cause during a Performance
Period, the Participant shall receive any portion of the Units accrued in prior
Performance Periods plus a pro rata portion of the Units that would have accrued
for the Performance Period in which such Participant’s death, Disability,
Retirement, or termination by the Company without Cause occurs.  Such
pro rata portion shall be based on the number of full calendar months of the
Participant’s Service during the Performance Period divided by the length of the
Performance Period.   Participant shall receive the cumulative
Units if the Participant is employed through
_________________.   Such Units shall be converted to Stock or
cash, at the discretion of the Committee, on the anniversary of the Date of
Grant immediately following the end of the Performance Period in which such
Participant’s death, Disability, Retirement, or termination by the Company
without Cause occurs (but not later than the 45th day after the _____
anniversary).  Notwithstanding the preceding sentence, if the
Participant is a “specified employee” as determined under Section 409A of
the Internal Revenue Code of 1986, as amended, and (1) his or her Service
terminates during one of the Performance Periods due to Retirement or
(2) the Company terminates the Participant’s Service without Cause during a
Performance Period, such Participant shall have such Units converted on the date
that is the later of:  (x) the first day following the six month
anniversary of the Participant’s separation from Service, or (y) the
anniversary of the Date of Grant immediately following the end of the
Performance Period in which such Participant’s Retirement or termination by the
Company without Cause occurs (but no later than the 45th day after such
date).

     

    
      	
              Performance
      Period(s)

            	 
      	
              Threshold Operating
      Net Income Goal

            	 
      	
              Target Operating Net
      Income Goal

            	 
      	
              Maximum Operating Net
      Income Goal

            
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      


    

     

     

    
      	
              Achieved Operating Net
      Income

            	
              Percentage
      of Performance Award
      Accrued**

            
	
              Below
      Threshold

            	
              0%

            
	
              Threshold

            	
              __%

            
	
              Target

            	
              ___%

            
	
              Maximum

            	
              ___%

            


    

    **Such percentage shall be prorated for
any achievement between threshold, target and maximum.

     

    4. Forfeiture.  Except
as provided in paragraph 3, the Units shall be forfeited to the Company upon the
Participant’s termination of employment with the Company and its Affiliates for
any reason prior to the _____ anniversary of the Date of Grant.  The
final determination of whether or not the Participant has been discharged or
terminated Service for any of the reasons specified in paragraph 3 shall be
made by the Committee in its sole and absolute discretion.

     

    5. Rights as
a Stockholder.  The Participant shall not be entitled to any of the
rights of a stockholder with respect to the Units unless and until the Units are
converted to shares of Stock, including without limitation the right to vote and
tender Stock and the right to receive dividends and other distributions payable
with respect to Stock.

     

    6. Tax
Withholding.  The Company shall have the right to require the
Participant to remit to the Company, or to withhold from other amounts payable
to the Participant, as compensation or otherwise, an amount sufficient to
satisfy all federal, state and local withholding tax requirements as provided in
the Plan, or the Company shall have the right to retain (or the Participant may
be offered the opportunity to elect to tender) the number of shares of stock
whose Fair Market Value equals such amount required to be withheld.

     

    7. Plan
Incorporated.  The Participant accepts the Units subject to all the
provisions of the Plan, which are incorporated into this Agreement, including
the provisions that authorize the Committee to administer and interpret the Plan
and which provide that the Committee’s decisions, determinations and
interpretations with respect to the Plan are final and conclusive on all persons
affected thereby.  Except as otherwise set forth in this Agreement,
terms defined in the Plan have the same meanings herein.

     

    
      
         

      

      
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    8. Miscellaneous.

     

    (a) No
Guaranteed Service or Employment.  Neither the granting of the Units,
nor any provision of this Agreement or the Plan, shall (a) affect the right
of the Company to terminate the Participant at any time, with or without Cause,
or (b) shall be deemed to create any rights to employment or Service or
continued employment or continued Service on the part of the Participant or any
rights to participate in any employee benefit plan or program (other than the
Plan) of the Company or any Affiliate or to receive any benefits or rights
associated with employment or Service with the Company.  The rights
and obligations arising under this Agreement are not intended to and do not
affect the employment or Service relationship that otherwise exists between the
Company (or any Affiliate) and the Participant, whether such relationship is at
will or defined by an employment contract.  Moreover, this Agreement
is not intended to and does not amend any existing employment contract between
the Company and the Participant; to the extent there is a conflict between this
Agreement and such an employment contract, the employment contract shall govern
and take priority.

     

    (b) Notices.  Any
notice to be given to the Company under the terms of this Agreement shall be
addressed to the Company at its principal executive offices, and any notice to
be given to the Participant shall be addressed to the Participant at the address
set forth on the attached Notice of Grant, or at such other address for a party
as such party may hereafter designate in writing to the other.  Any
such notice shall be deemed to have been duly given if mailed, postage prepaid,
addressed as aforesaid.

     

    (c) Binding
Agreement.  Subject to the limitations in this Agreement on the
transferability by the Participant of the Units, this Agreement shall be binding
upon and inure to the benefit of the representatives, executors, successors or
beneficiaries of the parties hereto.

     

    (d) Governing
Law.  The interpretation, performance and enforcement of this
Agreement shall be governed by the laws of the State of Illinois and the United
States, as applicable, without reference to the conflict of laws provisions
thereof.

     

    (e) Severability.  If
any provision of this Agreement is declared or found to be illegal,
unenforceable or void, in whole or in part, then the parties shall be relieved
of all obligations arising under such provision, but only to the extent that it
is illegal, unenforceable or void, it being the intent and agreement of the
parties that this Agreement shall be deemed amended by modifying such provision
to the extent necessary to make it legal and enforceable while preserving its
intent or, if that is not possible, by substituting therefore another provision
that is legal and enforceable and achieves the same objectives.

    
       

    

    (f) Headings.  All
section titles and captions in this Agreement are for convenience only, shall
not be deemed part of this Agreement, and in no way shall define, limit, extend
or describe the scope or intent of any provisions of this
Agreement.

     

    (g) Entire
Agreement.  This Agreement constitutes the entire agreement among the
parties hereto pertaining to the subject matter hereof and supersedes all prior
agreements and understandings pertaining thereto.

     

    (h) No
Waiver.  No failure by any party to insist upon the strict performance
of any covenant, duty, agreement or condition of this Agreement or to exercise
any right or remedy consequent upon a breach thereof shall constitute waiver of
any such breach or any other covenant, duty, agreement or
condition.

     

    (i) Counterparts.  This
Agreement may be executed in counterparts, all of which together shall
constitute one agreement binding on all the parties hereto, notwithstanding that
all such parties are not signatories to the original or the same
counterpart.

     

    (j) Relief.  In
addition to all other rights or remedies available at law or in equity, the
Company shall be entitled to injunctive and other equitable relief to prevent or
enjoin any violation of the provisions of this Agreement.

     

    
      
         

      

      
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    (k) Plan
Document Governs. The Units are granted
pursuant to the Plan, and the Units and this Agreement are in all respects
governed by the Plan and subject to all of the terms and provisions thereof,
whether such terms and provisions are incorporated in this Agreement by
reference or are expressly cited.  Any inconsistency between the
Agreement and the Plan shall be resolved in favor of the Plan.  The
Participant hereby acknowledges receipt of a copy of the Plan.

     

    (l) Beneficiary
Designation. The Participant may, from time to time, in accordance with
procedures set forth by the Committee, name any beneficiary or beneficiaries
(who may be named contingently) to whom any benefit under this Agreement is to
be paid in case of his or her death before he or she receives any or all of such
benefit.  Each such designation shall revoke all prior designations by
the Participant, shall be in a form prescribed by the Company, and shall be
effective only if and when it is properly completed and filed by the Participant
in writing with the Company during the Participant’s lifetime.  In the
absence of any such valid and effective designation, benefits remaining unpaid
at the Participant’s death shall be paid to the Participant’s
estate.

     

    (m) Administration.
This Agreement and the rights of the Participant hereunder are subject to all
the terms and conditions of the Plan, as the same may be amended from time to
time, as well as to such rules and regulations as the Committee may adopt for
administration of the Plan.  It is expressly understood that the
Committee is authorized to administer, construe, and make all determinations
necessary or appropriate, in its sole discretion, to the administration of the
Plan and this Agreement, all of which shall be binding upon the
Participant.

     

    (n) No Vested
Right to Future Awards.  Participant acknowledges and agrees that the
granting of Units under this Agreement is made on a fully discretionary basis by
the Company and that this Agreement does not lead to a vested right to further
Unit awards in the future.

     

    (o) Use of
Personal Data.  By executing this Agreement, Participant acknowledges
and agrees to the collection, use, processing and transfer of certain personal
data, including his or her name, salary, nationality, job title, position, and
details of all past Unit awards and current Unit awards outstanding under the
Plan (“Data”), for the purpose of managing and administering the
Plan.  The Participant is not obliged to consent to such collection,
use, processing and transfer of personal data, but a refusal to provide such
consent may affect his or her ability to participate in the Plan.  The
Company, or its Affiliates, may transfer Data among themselves or to third
parties as necessary for the purpose of implementation, administration and
management of the Plan.  These various recipients of Data may be
located elsewhere throughout the world.  The Participant authorizes
these various recipients of Data to receive, possess, use, retain and transfer
the Data, in electronic or other form, for the purposes of implementing,
administering and managing the Plan.  The Participant may, at any
time, review Data with respect to the Participant and require any necessary
amendments to such Data.  The Participant may withdraw his or her
consent to use Data herein by notifying the Company in writing; however, the
Participant understands that by withdrawing his or her consent to use Data, the
Participant may affect his or her ability to participate in the
Plan.

     

    (p) Amendment.  Any
amendment to the Agreement shall be in writing and signed by the
Company.

     

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