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Exhibit 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
(PROMOTIONAL)
This Promotional Executive Employment Agreement (the
“Agreement”), effective the 6th day of June , 2008 (the “Effective
Date”), by and between Tyson Foods, Inc., a Delaware
corporation (“Company”), and any of its subsidiaries
and affiliates (hereinafter collectively referred to as
“Employer”), and LEATHERBY,
DENNIS (hereinafter referred to as
“Officer”).
WITNESSETH:
WHEREAS, Employer is engaged in a very competitive
business, where the development and retention of extensive trade
secrets and proprietary information is critical to future business
success; and
WHEREAS, Officer, by virtue of Officer’s
employment with Employer, is involved in the development of, and
has access to, this critical business information, and, if such
information were to get into the hands of competitors of Employer,
Officer could do substantial business harm to Employer;
and
WHEREAS, Employer has advised Officer that agreement
to the terms of this Agreement, and specifically the non-compete
and non-solicitation sections, is an integral part of this
Agreement, and Officer acknowledges the importance of the
non-compete and non-solicitation sections, and having reviewed the
Agreement as a whole, is willing to commit to the restrictions as
set forth herein;
NOW, THEREFORE, Employer and Officer, in
consideration of the above and the terms and conditions contained
herein, hereby mutually agree as follows:
1.
Duties . Officer shall
perform the duties of EVP & Chief
Financial Officer or shall serve in such
other capacity and with such other duties for Employer as Employer
shall from time to time prescribe. Officer shall perform all such
duties with diligence and thoroughness. Officer shall be subject to
and comply with all rules, policies, procedures, supervision and
direction of Employer in all matters related to the performance of
Officer’s duties.
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2.
Term of Employment .
The term of employment hereunder shall be for a period of
five (
5 ) years, commencing
on the Effective Date and terminating on the fifth anniversary of the Effective
Date, unless terminated prior thereto in accordance with the
provisions of this Agreement (the period from the Effective Date to
the earlier of the fifth
anniversary of the Effective Date or any earlier
termination of employment is referred to herein as the
“Period of Employment”). Notwithstanding the expiration
of the Period of Employment, regardless of the reason, and in
addition to other obligations that survive the Period of
Employment, the obligations of Officer under Sections 8 (b), (c),
(d), (e), (f), (g), (h), and (i) shall continue in effect after the
Period of Employment for the time periods specified in these
sections.
3.
Compensation . For the
services to be performed hereunder, Officer shall be compensated by
Employer during the Period of Employment at the rate of not less
than Four hundred fifty thousand dollars
and 00/100 ($ 450,000.00 ) per year payable in
accordance with Employer’s payroll practices, and in addition
may receive awards under Employer’s annual bonus plan then in
effect, subject to the discretion of the senior management of
Employer. Such compensation will be subject to review from time to
time when salaries of other officers and managers of Employer are
reviewed for consideration of increases thereof.
4.
Participation in Benefit Programs
. Officer shall be entitled to participate in any
benefit programs generally applicable to officers of Employer
adopted by Employer from time to time.
5.
Limitation on Outside Activities
. Officer shall devote full employment energies,
interest, abilities and time to the performance of Officer’s
obligations hereunder and shall not, without the written consent of
the Chief Executive Officer or the General Counsel of the Employer,
render to others any service of any kind or engage in any activity
which conflicts or interferes with the performance of
Officer’s duties hereunder.
6.
Ownership of Officer’s
Inventions . All ideas,
inventions, and other developments or improvements conceived by
Officer, alone or with others, during Officer’s Period of
Employment, whether or not during working hours, (i) that are
within the scope of the business operations of Employer, (ii) that
were developed at the direction of the Employer, or (iii) that
relate to any of the work or projects of the Employer, are the
exclusive property of Employer. Officer agrees to assist Employer,
at Employer’s expense, to obtain patents on any
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such patentable ideas, inventions, and other
developments, and agrees to execute all documents necessary to
obtain such patents in the name of the Employer.
(a) Voluntary
Termination . Officer may terminate Officer’s employment, including
Officer’s retirement, where appropriate pursuant to this
Agreement at any time by not less than ninety (90) days prior
written notice to Employer. Upon receipt of such notice, Employer
shall have the right, at its sole discretion, to accelerate
Officer’s date of termination at any time during said notice
period. Officer shall not be entitled to any compensation from
Employer for any period beyond Officer’s actual date of
termination, and Officer’s Stock Options, Performance Stock
and Deferred Stock Award (each as hereinafter defined) shall be
treated as provided in the award agreements pursuant to which such
rights were granted. Officer shall not be entitled to a bonus for
the fiscal year of the Employer in which such termination
occurs.
(b) Employer Involuntary
Termination . Employer shall be entitled,
at its election and with or without cause, to terminate
Officer’s employment pursuant to this Agreement upon written
notice to Officer. Upon a termination by Employer, Employer shall
continue to pay Officer at Officer’s current salary paid in
the manner provided in Section 3 above for a period of eighteen
months after the date of termination. In either event, Employer
shall treat Officer’s Stock Options, Performance Stock and
Deferred Stock Award as provided in the award agreements pursuant
to which such equity rights were granted. Officer shall not be
entitled to any bonus for the fiscal year of the Employer in which
such termination by Employer occurs.
The Officer’s eligibility to receive benefits
under this Section 7(b) shall be conditioned upon (i) the
Officer’s execution of a General Release and Separation
Agreement, and (ii) the General Release and Separation Agreement
becoming effective after the lapse of any permitted or required
revocation period without the associated revocation rights being
exercised by Officer.
(c) Incapacity
. If Officer is unable to
perform Officer’s duties pursuant to this Agreement by reason
of disability, Employer may terminate Officer’s employment
pursuant to this Agreement by thirty (30) days written notice to
Officer. If Officer is unable to perform Officer’s duties
pursuant to this Agreement by reason of death, this Agreement shall
immediately
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terminate. Officer’s Stock Options,
Performance Stock and Deferred Stock Award in the event of a
termination under this section shall be treated as provided in the
award agreements pursuant to which such equity rights were granted.
In the event of Officer’s death or disability, Officer, or
Officer’s estate as applicable, shall receive a prorated
bonus for the portion of time worked during the fiscal year of the
Employer in which termination under this Section 7 (c) occurs,
based upon the bonus received by Officer during the immediately
prior fiscal year.
(d) Temporary Suspension
of Payments .
Notwithstanding the foregoing, if the Officer
is a “specified employee” within the meaning of Section
409A of the Internal Revenue Code (and the regulations thereunder),
to the extent that all or a portion of any payments due under
Section 7 of this Agreement (including, without limitation the
payment of salary, Stock Options, Performance Stock and Deferred
Stock Awards) exceeds the amount, if any, that can be paid as
separation pay that does not constitute a deferral of compensation
under Section 409A of the Internal Revenue Code (and the
regulations thereunder), or that otherwise can be paid without
resulting in a failure under Section 409A(a)(1) of the Internal
Revenue Code, payment shall be delayed until the later of six (6)
months after the termination of employment or the date the payment
would otherwise be made under Section 7. Any payments that
are so delayed shall be paid in one lump sum upon the date the
delayed payments are to be made.
8. Additional
Compensation, Confidential
Information, Trade Secrets, Limitations on Solicitation and
Non-Compete Clause.
(a) Officer
shall receive, in addition to all regular compensation for services
as described in Section 3 of this Agreement, as additional
consideration for signing this Agreement and for agreeing to abide
and be bound by the terms, provisions and restrictions of this
Section 8, the following:
(i) An
award of 41,398.7921
shares of Tyson Foods, Inc. Class A Common Stock
(“Common Stock”) subject to the terms and conditions of
a restricted stock grant agreement currently in use by the Employer
for awards to officers generally.
(ii) During
Officer’s Period of Employment on grant dates to be specified
by Employer consistent with Employer’s past practices for
grants of options to Employees generally, a grant of
40,000 options on each
such grant date to purchase shares of Common Stock, subject to the
terms and conditions of the Tyson Foods, Inc. 2000 Stock
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Incentive Plan (“Stock Plan”), and the
option grant agreement currently in use on the date of grant by the
Employer for officers generally.
(iii) On the
first business day of each of the Company's fiscal years during the
Term of this Agreement, Officer shall receive a performance award
payable in shares of Common Stock (referred to herein as
“Performance Stock”) having an annual maximum aggregate
value of $ 225,000.00
on the date of the award, subject to the terms and
conditions of the Stock Plan and the form of performance award
currently in use by the Employer for officers generally. Subject to
the satisfaction of the performance criteria set forth in the
applicable performance award agreement, the award made in a given
fiscal year will vest two (2) business days after the Company
publicly releases its earnings for the third completed fiscal year
after the grant date (for example, an award made in 2010 shall vest
two (2) business days after the Company publicly releases its
earnings for the 2012 fiscal year).
(b) Officer recognizes
that, as a result of Officer’s employment hereunder (and
Officer’s employment, if any, with Employer for periods prior
to the Effective Date), Officer has had and will continue to have
access to confidential information in multiple forms, electronic or
otherwise, such confidential information including but not being
limited to trade secrets, proprietary information, intellectual
property, and other documents, data, and information concerning
methods, processes, controls, techniques, formulas, production,
distribution, purchasing, financial analysis, returns and reports
(in addition if Officer is involved with marketing, sales or
procurement Officer has had and will continue to have access to
lists of customers, suppliers, vendors, and accounts, other
sensitive information and data regarding the customers, suppliers,
vendors, services, sales, pricing, and costs of Employer which are
highly confidential and constitute trade secrets or confidential
business information) which is the property of and integral to the
operations and success of Employer, and therefore agrees to be
bound by the provisions of this Section 8, which Officer agrees and
acknowledges to be reasonable and necessary to protect legitimate
and important business interests and concerns of Employer. Officer
acknowledges that the information referred to above has independent
economic value from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use.
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Officer further acknowledges that Employer has taken
all reasonable steps under the circumstances to maintain the
secrecy and/or confidentiality of such information.
(c) Officer agrees
that Officer will not divulge to any person, nor use to the
detriment of Employer, nor use in any business or process of
manufacture competitive with or similar to any business or process
of manufacture of Employer, at any time during Period of Employment
or thereafter, any of the trade secrets and/or other confidential
information of the Employer, whether in electronic form or
otherwise, without first obtaining the express written permission
of Employer. A trade secret shall include any information
maintained as confidential and used by Employer in its business,
including but not limited to a formula, pattern, compilation,
program, device, method, technique or process that has value,
actual or potential, from its confidentiality and from not being
readily ascertainable to others who could also obtain value from
such information. For purposes of this Section 8, the compilation
of information used by Employer in its business shall include,
without limitation, the identity of customers and suppliers and
information reflecting their interests, preferences,
credit-worthiness, likely receptivity to solicitation for
participation in various transactions and related information
obtained during the course of Officer’s employment with
Employer.
(d) Officer agrees
that at the time of leaving the employ of Employer, Officer will
deliver to Employer, and not keep or deliver to anyone else, any
and all originals and copies, electronic or hard copy, of
notebooks, memoranda, documents, communications, and, in general,
any and all materials relating to the business of Employer, or
constituting property of the Employer. Officer further agrees that
Officer will not, directly or indirectly, request or advise any
customers or suppliers of Employer to withdraw, curtail or cancel
its business with Employer.
(e) During
Officer’s Period of Employment with the Employer and for a
period of one (1) year after the expiration of the Period of
Employment (it is expressly acknowledged that this clause is
intended to survive the expiration of the Period of Employment),
Officer will not directly or indirectly, in the United States,
participate in any Position in any business in Direct Competition
with the business of the Employer. The term “Direct
Competition,” as used in this section, shall mean any
business that directly competes against any line of business in
which Officer was actively engaged during Officer’s
employment with Employer. The term “Position,” as used
in this section, includes a partner, director, holder
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of more than 5% of the outstanding voting shares,
principal, executive, officer, manager or any employment or
consulting position with an entity in Direct Competition with
Employer, where Officer performs any duties which are substantially
similar to those performed by the Officer during Officer’s
employment with Employer. Officer acknowledges that a
“substantially similar” position shall include any
position in which Officer might be able to utilize the valuable,
proprietary and confidential information to which Officer was
exposed during Officer’s employment with Employer. It is
acknowledged and agreed that the scope of the clause as set forth
above is essential, because (i) a more restrictive definition of
“Position” (e.g. limiting it to the “same”
position with a competitor) will subject the Employer to serious,
irreparable harm by allowing competitors to describe positions in
ways to evade the operation of this clause, and substantially
restrict the protection sought by Employer, and (ii) by allowing
the Officer to escape the application of this clause by accepting a
position designated as a “lesser” or
“different” position with a competitor, the Employer is
unable to restrict the Officer from providing valuable information
to such competing entity to the harm of the Employer.
(f) Officer
recognizes that Officer possesses confidential information and
trade secrets about other employees of Employer relating to their
education, experience, skills, abilities, salary and benefits, and
interpersonal relationships with customers and suppliers of
Employer. Officer recognizes that the information Officer possesses
about these other employees is not generally known, is of
substantial value to Employer in securing and retaining customers
and suppliers, and was acquired by Officer because of
Officer’s business position with Employer. Officer agrees
that during Officer’s Period of Employment hereunder, and for
a period of three (3) years after the expiration of the Period of
Employment (it is expressly acknowledged that this clause is
intended to survive, if applicable, the expiration of the Period of
Employment), Officer shall not, directly or indirectly, solicit or
contact any employee or agent of Employer, with a view to or for
the purposes of inducing or encouraging such employee or agent to
leave the employ of Employer, for the purpose of being hired by
Officer, any employer affiliated with Officer, or any competitor of
Employer. Officer agrees that Officer will not convey any such
confidential information or trade secrets about other employees to
anyone.
(g) Officer
acknowledges that the restrictions contained in this Section 8 are
reasonable and necessary to protect Employer’s interest in
this Agreement and that any breach thereof will result in an
irreparable injury to Employer for which Employer has no
adequate
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remedy at law. Officer therefore agrees that, in the
event Officer breaches any of the provisions contained in this
Section 8, Employer shall be authorized and entitled to seek from
any court of competent jurisdiction (i) a temporary restraining
order, (ii) preliminary and permanent injunctive relief, (iii) an
equitable accounting of all profits or benefits arising out of such
breach, (iv) direct, incidental and consequential damages arising
from such breach; and/or (v) all reasonable legal fees and costs
related to any actions taken by Employer to enforce Section
8.
(h) Employer and
Officer have attempted to specify a reasonable period of time, a
reasonable area and reasonable restrictions to which this Section 8
shall apply. Employer and Officer agree that if a court or
administrative body should subsequently determine that the terms of
this Section 8 are greater than reasonably necessary to protect
Employer’s interest, Employer agrees to waive those terms
which are found by a court or administrative body to be greater
than reasonably necessary to protect Employer’s interest and
to request that the court or administrative body reform this
Agreement specifying a reasonable period of time and such other
reasonable restrictions as the court or administrative body deems
necessary. Further, Officer agrees that Employer shall have the
right to amend or modify this Section 8 as necessary to comport
with the determination of any court or administrative body that
such Section in this or a similar agreement entered into by
Employer with any other officer or manager of Employer is greater
than reasonably necessary to protect Employer’s
interest.
(i) Officer further agrees that this Section 8, as
well as the Sections 12 and 13 relating to choice of law and forum
for resolution, are integral parts of this Agreement, and that
should a court fail or refuse to enforce the restrictions contained
herein in the manner expressly provided in Sections 8(a) through
8(g) above, the Employer shall recover from Officer, and the court
shall award to the Employer, the consideration (or a pro-rata
portion thereof to the extent these provisions are enforced but the
time frame is reduced beyond that specified above) provided to and
elected by Officer under the terms of Section 8(a) above (or the
monetary equivalent thereof), its cost and its reasonable
attorney’s fees. Officer acknowledges that such award is not
intended as “liquidated damages” and is not exclusive
to other remedies available to Employer. Instead such award is
intended to ensure that Officer is not unjustly enriched as a
result of retaining contract benefits not earned by
Officer.
9. Termination for
Egregious Circumstances . Notwithstanding
any other provision of this Agreement, including the terms of
Section 7 hereof, Employer may, at its sole and absolute
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discretion, terminate this Agreement, and
Officer’s Period of Employment hereunder without any payment,
liability or other obligation, in the event, (a) Officer engages in
willful misconduct which results in injury to the Employer, or (b)
Officer is convicted of a job-related felony or
misdemeanor.
10. Modification
. Except as otherwise specified in this Section 10,
this Agreement contains all the terms and conditions agreed upon by
the parties hereto, and no other agreements, oral or otherwise,
regarding the subject matter of this Agreement shall be deemed to
exist or bind either of the parties hereto, except for (i) any
pre-employment confidentiality agreement that may exist between the
parties, (ii) the stock grant(s) of 20,676.6917 shares granted on
October 4, 2004 of
Common Stock (the “Prior Stock Grant(s)”) awarded to
Officer under prior restricted stock grant agreement(s)
(“Prior Agreement(s)”), which stock grant(s) shall
continue and vest pursuant to the terms of the Prior Agreement(s)
under which such grant(s) were made; (iii) the performance stock
grant(s), IF ANY, of up to 0
shares granted on n/a (respectively) of Common Stock
(the “Prior Performance Stock Grant(s)”) awarded to
Officer under prior performance stock award agreement(s)
(“Prior Performance Agreements”), which performance
stock grant(s) shall continue and vest pursuant to the terms of the
Prior Performance Agreement(s) under which such grants were made;
or (iv) any other agreement or policy specifically referenced
herein. The parties agree that the continuation of the Prior Stock
Grant(s) and Prior Performance Stock Grants (if any) is additional
consideration for the commitments made by Officer in Section 8 of
this Agreement. Except for the preservation of the Prior Stock
Grant(s) and Prior Performance Stock Grants (if any) as provided in
this Section, this Agreement is intended to cancel and supercede
the terms of the prior employment agreement between the Officer and
the Company dated October 4,
2004 . This Agreement cannot be modified
except by a writing signed by both parties.
11. Assignment.
This Agreement shall be binding upon Officer,
Officer’s heirs, executors and personal representatives and
upon Employer, its successors and assigns. Officer may not assign
this Agreement, in whole or in part, without first obtaining the
written consent of the Chief Executive Officer of
Employer.
12. Applicable
Law . Officer acknowledges that this
Agreement is performable at various locations throughout the United
States and specifically performable wholly or partly within the
State of Delaware and consents to the validity, interpretation,
performance and
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enforcement of this Agreement being governed by the
internal laws of said State of Delaware, without giving effect to
the conflict of laws provisions thereof.
13. Jurisdiction and Venue
of Disputes. The courts of Washington
County, Arkansas shall have exclusive jurisdiction and be the venue
of all disputes between the Employer and Officer, whether such
disputes arise from this Agreement or otherwise. In addition,
Officer expressly waives any right Officer may have to sue or be
sued in the county of Officer’s residence and consents to
venue in Washington County, Arkansas.
14. Acceleration Upon a
Change in Control. Upon the occurrence of
a Change in Control (defined below) the restricted Common Stock,
stock options, and Performance Stock that have been granted to
Officer pursuant to an award agreement from the Employer under
Sections 8(a)(i),(ii) and (iii), or which have otherwise been
previously granted to Officer under an award agreement from the
Employer; and which are unvested at the time of the Change in
Control, will vest sixty (60) days after the Change in Control
event occurs (unless vesting earlier pursuant to the terms of an
award agreement). If the Officer is terminated by the Employer
other than for egregious circumstances during such sixty (60) day
period, all of the unvested restricted Common Stock, stock options,
and Performance Stock granted pursuant to such award agreements
will vest on the date of termination. For purposes of this
provision, a performance stock award that vests upon a Change of
Control will vest at the 100% or mid-level (not the 50% or 150%
levels also expressed in the Award). For purposes of this
Agreement, the term "Change in Control" shall have the same meaning
as the term "Change in Control" as set forth in the Plan; provided,
however, that a Change in Control shal
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