exv10w1






Exhibit 10.1




Tier 1 — CEO and CFO




FORM
OF
AMENDMENT TO CHANGE IN CONTROL AGREEMENT




     This Amendment to the Change in Control Agreement (the “Agreement”) dated as of ___,
between Penford Corporation, a Washington corporation (the
“Company”) and ___ (the
“Executive”) is made as of December 30, 2008.



RECITALS




     A. The Company and Executive intend that the Agreement be interpreted and operated to the
fullest extent possible so that the payments and benefits under this Agreement either shall be
exempt from the requirements of Code Section 409A or shall comply with the requirements of such
provision.



     B. Therefore, the Company and Executive deem it appropriate to adopt this amendment to the
Agreement.



     NOW, THEREFORE, the Company and the Executive agree as follows:



     1. The words “and to the extent not resulting in a violation of the requirements of Code
Section 409A” are added after “to the extent necessary” in the third sentence of paragraph 6
Benefits.



     2. The last two sentences of paragraph 6 Benefits are deleted in their entirety and the
following sentences substituted therefor:




Notwithstanding the foregoing, any such benefits shall be made available to the
Executive by the Company during such delay period at Executive’s expense. If such a
delay is required, on such six-month anniversary, the Executive will receive a lump
sum cash 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.



     3. The first sentence of subparagraph (d) Payment of Gross-Up of paragraph 9 Section 280G Tax
Payment is deleted in its entirety and the following substituted therefor:




Subject to paragraph 25(c), an estimated Gross-Up Payment shall be made to the
Executive on the 55th day following the Executive’s Separation from Service provided
the Waiver and Release Agreement was executed and delivered on or within forty-five
days after the Executive’s Separation from Service and not revoked by such 55th day
following the Executive’s Separation from Service; provided, however, the Gross-Up
Payment shall be made no later than the time the Executive is required to remit the
taxes with respect to which the Gross-Up



 









 







Payment relates provided an effective Waiver and Release Agreement has been provided
by such time.



     4. The text of paragraph 11 Corporation’s Setoff Rights is deleted in its entirety and the
following substituted therefor:




Subject to the limitations of Code Section 409A, including without limitation,
Treas. Reg. §1.409A-3(j)(4)(xiii), to the extent applicable, 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.



     5. The first sentence of paragraph 13 Impact on Existing Severance and Benefit Plans is
deleted in its entirety and the following substituted therefor:




Subject to the limitations of Code Section 409A, 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.



     6. The following is added to the Agreement as paragraph 25 Compliance with Code Section 409A:




25. Compliance with Code Section 409A. All payments pursuant to this Agreement
shall be subject to the provisions of this paragraph 25. Notwithstanding anything
herein to the contrary, this Agreement is intended to be interpreted and operated
to the fullest extent possible so that the payments and benefits under this
Agreement either shall be exempt from the requirements of Code Section 409A or
shall comply with the requirements of such provision; provided however that
notwithstanding anything to the contrary in this Agreement in no event shall the
Company be liable to the Executive for or with respect to any taxes, penalties or
interest which may be imposed upon the Executive pursuant to Code Section 409A.




     (a) Payments to Specified Employees. To the extent that any payment or benefit
pursuant to this Agreement constitutes a “deferral of compensation” subject to Code
Section 409A (after taking into account to the maximum extent possible any
applicable exemptions) (a “409A Payment”) treated as payable upon a “separation from
service” pursuant to Code Section 409A (“Separation from Service”), then, if on the
date of the Executive’s Separation from Service, the Executive is a Specified
Employee, then to the extent required for Executive not to incur additional taxes
pursuant to Code Section 409A, no such 409A Payment shall be made to the Executive
earlier than the earlier of (i) six (6) months after



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the Executive’s Separation from Service; or (ii) the date of his death. Should
this paragraph 25 result in the delay of benefits, any such benefit shall be made
available to the Executive by the Company during such delay period at Executive’s
expense. Should this paragraph 25 result in a delay of payments or benefits to
Executive, on the first day any such payments or benefits may be made without
incurring additional tax pursuant to Code Section 409A (the “409A Payment Date”),
the Company shall make such payments and provide such benefits as provided for in
this Agreement, provided that any amounts that would have been payable earlier but
for the application of this paragraph 25 as well reimbursement of the amount
Executive paid for benefits pursuant to the preceding sentence, shall be paid in
lump-sum on the 409A Payment Date. For purposes of this paragraph 25, the terms
“Specified Employee” and “Separation from Service” shall have the meaning set forth
in Code Section 409A as determined in accordance with the methodology established by
the Company. For purposes of determining whether a Separation from Service has
occurred for purposes of Code Section 409A, a Separation from Service is deemed to
include a reasonably anticipated permanent reduction in the level of services
performed by the Executive to less than fifty (50%) of the average level of services
performed by the Executive during the immediately preceding 12-month period (or
period of service if less than 12 months).




     (b) Reimbursements Including Tax Gross-ups. For purposes of complying with
Code Section 409A and without extending the payment timing otherwise provided in
this Agreement, taxable reimbursements under this Agreement, subject to the
following sentence and to the extent required to comply with Code Section 409A, will
be made no later than the end of the calendar year following the calendar year the
expense was incurred. However, for purposes of complying with Code Section 409A and
without extending the payment timing otherwise provided in this Agreement, any tax
gross-up may be payable through the calendar year after the calendar year in which
the Executive remits the taxes rather than be limited to the end of the calendar
year following the calendar year the expense was incurred and reimbursement of
expenses incurred due to a tax audit or litigation addressing the existence or
amount of a tax liability may be payable through the end of the calendar year
following the calendar year in which the taxes that are the subject of the audit or
litigation are remitted to the taxing authority or where as a result of such audit
or litigation no taxes are remitted, the end of the calendar year following the
calendar year in which the audit is completed or there is a final and nonappealable
settlement or other resolution of the litigation. To the extent required to comply
with Code Section 409A, any taxable reimbursements and any in-kind benefit under
this Agreement will be subject to the following: (a) payment of such reimbursements
or in-kind benefits during one calendar year will not affect the amount of such
reimbursement or in-kind benefits provided during any other calendar year (other
than for medical reimbursement arrangements as excepted under Treasury Regulations
§1.409A-3(i)(1)(iv)(B) solely because the arrangement provides for a limit on the
amount of expenses that may be reimbursed under such arrangement over some or all of
the period the arrangement remains in effect); (b) such right to reimbursement or



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in-kind benefits is not subject to liquidation or exchange for another form of
compensation to the Executive and (c) the right to reimbursements under this
Agreement will be in effect for the lesser of the time specified in this Agreement
or ten years plus the lifetime of the Executive. Any taxable reimbursements or
in-kind benefits shall be treated as not subject to Code Section 409A to the maximum
extent provided by Treasury Regulations §1.409A-1(b)(9)(v) or otherwise under Code
Section 409A.




     (c) Release. Subject to paragraph 25(a), (i) to the extent that Executive is
required to execute and deliver the Waiver and Release Agreement to receive a 409A
Payment and (ii) this Agreement provides for such 409A Payment to be provided prior
to the 55th day following the Executive’s Separation from Service, such 409A Payment
will be provided upon the 55th day following Executive’s Separation from Service
provided the Waiver and Release Agreement has been executed and delivered on or
within forty-five (45) days after Executive’s Separation from Service and effective
prior to such 55th day. To the extent there is a delay in providing a 409A Payment
because of the provisions of this paragraph 25(c), the opportunity for Executive to
pay for benefits in the interim with subsequent reimbursement from the Company shall
be provided in a manner consistent with that set forth in paragraph 25(a). If a
release is required for a 409A Payment and such release is not executed, delivered
and effective by the 55th day following Executive’s Separation from Service, such
409A Payment shall not be provided to the Executive to the extent that providing
such 409A Payment would cause such 409A Payment to fail to comply with Code Section
409A. To the extent that any payments or benefits under this Agreement are intended
to be exempt from Code Section 409A as a short-term deferral pursuant to Treasury
Regulations §1.409A-1(b)(4) or any successor thereto and require Executive to
provide a Waiver and Release Agreement to the Company to obtain such payments or
benefits, the Waiver and Release Agreement required for such payment or benefit must
be executed and delivered on or within forty-five (45) days after Executive’s last
day of employment which time frame in no event shall be later than March 7th of the
calendar year following the calendar year of the Executive’s Separation from
Service.




     (d) No Acceleration; Separate Payments; Termination of Employment. No 409A
Payment payable under this Agreement shall be subject to acceleration or to any
change in the specified time or method of payment, except as otherwise provided
under this Agreement and consistent with Code Section 409A. If under this
Agreement, a 409A Payment is to be paid in two or more installments, for purposes of
Section 409A, each installment shall be treated as a separate payment.
Notwithstanding anything contained in this Agreement to the contrary, the date on
which a Separation from Service occurs shall be treated as the termination of
employment date for purposes of determining the timing of payments under this
Agreement to the extent necessary to have such payments and benefits under this
Agreement be exempt from the requirements of Code Section 409A or comply with the
requirements of Code Section 409A.



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     (e) Cooperation. If the Company or Executive determines that any provision of
this Agreement is or might be inconsistent with the requirements of Code Section
409A, the parties shall attempt in good faith to agree on such amendments to this
Agreement as may be necessary or appropriate to avoid subjecting Executive to the
imposition of any additional tax under Code Section 409A without changing the basic
economic terms of this Agreement. Notwithstanding the foregoing, no provision of
this Agreement shall be interpreted or construed to transfer any liability for
failure to comply with Code Section 409A from Executive or any other individual to
the Company. This paragraph 25 is not intended to impose any restrictions on
payments or benefits to Executive other than those otherwise set forth in this
Agreement or required for Executive not to incur additional tax under Code Section
409A and shall be interpreted and operated accordingly. The Company to the extent
reasonably requested by Executive shall modify this Agreement to effectuate the
intention set forth in the preceding sentence.



     7. In all other respects, the Agreement, as amended, shall continue in full force and effect.



     IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above
written.



	 	 	 	 	 
	 	 	PENFORD CORPORATION
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 
	 
	 	 	 	 
	 

	 	EXECUTIVE:	 
	 
	 	 	 	 
	 	 	 





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Tiers II
and III — Other Executives



FORM
OF
AMENDMENT TO CHANGE IN CONTROL AGREEMENT




     This Amendment to the Change in Control Agreement (the “Agreement”) dated as of ___,
between Penford Corporation, a Washington corporation (the
“Company”) and ___ (the
“Executive”) is made as of December 30, 2008.



RECITALS




     A. The Company and Executive intend that the Agreement be interpreted and operated to the
fullest extent possible so that the payments and benefits under this Agreement either shall be
exempt from the requirements of Code Section 409A or shall comply with the requirements of such
provision.



     B. Therefore, the Company and Executive deem it appropriate to adopt this amendment to the
Agreement.



     NOW, THEREFORE, the Company and the Executive agree as follows:



     8. The words “and to the extent not resulting in a violation of the requirements of Code
Section 409A” are added after “to the extent necessary” in the third sentence of paragraph 6
Benefits.



     9. The last two sentences of paragraph 6 Benefits are deleted in their entirety and the
following sentences substituted therefor:




Notwithstanding the foregoing, any such benefits shall be made available to the
Executive by the Company during such delay period at Executive’s expense. If such a
delay is required, on such six-month anniversary, the Executive will receive a lump
sum cash 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.



     10. The text of paragraph 11 Corporation’s Setoff Rights is deleted in its entirety and the
following substituted therefor:




Subject to the limitations of Code Section 409A, including without limitation,
Treas. Reg. §1.409A-3(j)(4)(xiii), to the extent applicable, 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.



6









 





     11. The first sentence of paragraph 13 Impact on Existing Severance and Benefit Plans is
deleted in its entirety and the following substituted therefor:




Subject to the limitations of Code Section 409A, 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.



     12. The following is added to the Agreement as paragraph 25 Compliance with Code Section 409A:




25. Compliance with Code Section 409A. All payments pursuant to this Agreement
shall be subject to the provisions of this paragraph 25. Notwithstanding anything
herein to the contrary, this Agreement is intended to be interpreted and operated
to the fullest extent possible so that the payments and benefits under this
Agreement either shall be exempt from the requirements of Code Section 409A or
shall comply with the requirements of such provision; provided however that
notwithstanding anything to the contrary in this Agreement in no event shall the
Company be liable to the Executive for or with respect to any taxes, penalties or
interest which may be imposed upon the Executive pursuant to Code Section 409A.




     (a) Payments to Specified Employees. To the extent that any payment or benefit
pursuant to this Agreement constitutes a “deferral of compensation” subject to Code
Section 409A (after taking into account to the maximum extent possible any
applicable exemptions) (a “409A Payment”) treated as payable upon a “separation from
service” pursuant to Code Section 409A (“Separation from Service”), then, if on the
date of the Executive’s Separation from Service, the Executive is a Specified
Employee, then to the extent required for Executive not to incur additional taxes
pursuant to Code Section 409A, no such 409A Payment shall be made to the Executive
earlier than the earlier of (i) six (6) months after the Executive’s Separation from
Service; or (ii) the date of his death. Should this paragraph 25 result in the
delay of benefits, any such benefit shall be made available to the Executive by the
Company during such delay period at Executive’s expense. Should this paragraph 25
result in a delay of payments or benefits to Executive, on the first day any such
payments or benefits may be made without incurring additional tax pursuant to Code
Section 409A (the “409A Payment Date”), the Company shall make such payments and
provide such benefits as provided for in this Agreement, provided that any amounts
that would have been payable earlier but for the application of this paragraph 25 as
well reimbursement of the amount Executive paid for benefits pursuant to the
preceding sentence, shall be paid in lump-sum on the 409A Payment Date. For
purposes of this paragraph 25, the terms “Specified Employee” and “Separation from
Service” shall have the meaning set forth in Code Section 409A as determined in
accordance with the methodology established by the Company. For



7









 







purposes of determining whether a Separation from Service has occurred for
purposes of Code Section 409A, a Separation from Service is deemed to include a
reasonably anticipated permanent reduction in the level of services performed by the
Executive to less than fifty (50%) of the average level of services performed by the
Executive during the immediately preceding 12-month period (or period of service if
less than 12 months).




     (b) Reimbursements. For purposes of complying with Code Section 409A and
without extending the payment timing otherwise provided in this Agreement, taxable
reimbursements under this Agreement, subject to the following sentence and to the
extent required to comply with Code Section 409A, will be made no later than the end
of the calendar year following the calendar year the expense was incurred. To the
extent required to comply with Code Section 409A, any taxable reimbursements and any
in-kind benefit under this Agreement will be subject to the following: (a) payment
of such reimbursements or in-kind benefits during one calendar year will not affect
the amount of such reimbursement or in-kind benefits provided during any other
calendar year (other than for medical reimbursement arrangements as excepted under
Treasury Regulations §1.409A-3(i)(1)(iv)(B) solely because the arrangement provides
for a limit on the amount of expenses that may be reimbursed under such arrangement
over some or all of the period the arrangement remains in effect); (b) such right to
reimbursement or in-kind benefits is not subject to liquidation or exchange for
another form of compensation to the Executive and (c) the right to reimbursements
under this Agreement will be in effect for the lesser of the time specified in this
Agreement or ten years plus the lifetime of the Executive. Any taxable
reimbursements or in-kind benefits shall be treated as not subject to Code Section
409A to the maximum extent provided by Treasury Regulations §1.409A-1(b)(9)(v) or
otherwise under Code Section 409A.




     (c) Release. Subject to paragraph 25(a), (i) to the extent that Executive is
required to execute and deliver the Waiver and Release Agreement to receive a 409A
Payment and (ii) this Agreement provides for such 409A Payment to be provided prior
to the 55th day following the Executive’s Separation from Service, such 409A Payment
will be provided upon the 55th day following Executive’s Separation from Service
provided the Waiver and Release Agreement has been executed and delivered on or
within forty-five (45) days after Executive’s Separation from Service and effective
prior to such 55th day. To the extent there is a delay in providing a 409A Payment
because of the provisions of this paragraph 25(c), the opportunity for Executive to
pay for benefits in the interim with subsequent reimbursement from the Company shall
be provided in a manner consistent with that set forth in paragraph 25(a). If a
release is required for a 409A Payment and such release is not executed, delivered
and effective by the 55th day following Executive’s Separation from Service, such
409A Payment shall not be provided to the Executive to the extent that providing
such 409A Payment would cause such 409A Payment to fail to comply with Code Section
409A. To the extent that any payments or benefits under this Agreement are intended
to be exempt from Code Section 409A as a short-term deferral pursuant



8









 







to Treasury Regulations §1.409A-1(b)(4) or any successor thereto and require
Executive to provide a Waiver and Release Agreement to the Company to obtain such
payments or benefits, the Waiver and Release Agreement required for such payment or
benefit must be executed and delivered on or within forty-five (45) days after
Executive’s last day of employment which time frame in no event shall be later than
March 7th of the calendar year following the calendar year of the Executive’s
Separation from Service.




     (d) No Acceleration; Separate Payments; Termination of Employment. No 409A
Payment payable under this Agreement shall be subject to acceleration or to any
change in the specified time or method of payment, except as otherwise provided
under this Agreement and consistent with Code Section 409A. If under this
Agreement, a 409A Payment is to be paid in two or more installments, for purposes of
Section 409A, each installment shall be treated as a separate payment.
Notwithstanding anything contained in this Agreement to the contrary, the date on
which a Separation from Service occurs shall be treated as the termination of
employment date for purposes of determining the timing of payments under this
Agreement to the extent necessary to have such payments and benefits under this
Agreement be exempt from the requirements of Code Section 409A or comply with the
requirements of Code Section 409A.




     (e) Cooperation. If the Company or Executive determines that any provision of
this Agreement is or might be inconsistent with the requirements of Code Section
409A, the parties shall attempt in good faith to agree on such amendments to this
Agreement as may be necessary or appropriate to avoid subjecting Executive to the
imposition of any additional tax under Code Section 409A without changing the basic
economic terms of this Agreement. Notwithstanding the foregoing, no provision of
this Agreement shall be interpreted or construed to transfer any liability for
failure to comply with Code Section 409A from Executive or any other individual to
the Company. This paragraph 25 is not intended to impose any restrictions on
payments or benefits to Executive other than those otherwise set forth in this
Agreement or required for Executive not to incur additional tax under Code Section
409A and shall be interpreted and operated accordingly. The Company to the extent
reasonably requested by Executive shall modify this Agreement to effectuate the
intention set forth in the preceding sentence.



9









 





     13. In all other respects, the Agreement, as amended, shall continue in full force and effect.



     IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above
written.



	 	 	 	 	 
	 	 	PENFORD CORPORATION
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	EXECUTIVE:
	 
	 	 	 	 
	 	 	 






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