EXHIBIT
10.1
EXECUTIVE
EMPLOYMENT AGREEMENT
(PROMOTIONAL)
This Promotional
Executive Employment Agreement (the “Agreement”),
effective the 21 st day of May, 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 David Van Bebber
(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 &
General Counsel 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.
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 thousand dollars
and 00/100 ($400,000.00) 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 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 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
38,627.9927
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 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
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. 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 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 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 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 10/4/04 (respectively) 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) and 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,
and (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 10/4/04
. 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 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 Contr
