EXECUTIVE
EMPLOYMENT AGREEMENT
(PROMOTIONAL)
This Promotional
Executive Employment Agreement (the “Agreement”),
effective the 1st day of December, 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 WEBSTER, JEFFREY D (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 GVP
Renewable Products Division 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 Three hundred
eighty-five thousand dollars and 00/100 ($ 385,000.00 )
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 Restricted Stock awards (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 (other than pursuant to
Section 7(c) or Section 9, Employer shall continue to pay Officer
at Officer’s current base salary paid in the manner provided
in Section 3 above for a period commencing with the separation from
service (within the meaning of Section 409A of the Internal Revenue
Code, and the regulations thereunder) and continuing for a period
of eighteen months after the date of the separation from service.
In either event, Employer shall treat Officer’s Stock
Options, Performance Stock and Restricted Stock 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. The obligation to continue base salary
shall accrue from the date of the termination by Employer and, if
the release is signed and not revoked, payments shall commence by
the later of (1) the end of the revocation period provided pursuant
to the terms of the release agreement (but no later than the
sixtieth (60 th ) day following the Officer’s
termination by Employer) or (2) the effective date of the
separation from service, with any accrued but unpaid base salary
continuation being paid on the date of the first
payment.
(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 Restricted
Stock 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. The prorated bonus amount
shall be paid in a lump sum within thirty (30) days following the
date of the Officer’s death or determination of disability
status, as applicable. For purposes of this Section 7(c),
“disability” means the Officer is (i) unable to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a continuous period
of not less than twelve (12) months; or (ii) is, by reason of any
medically determinable mental or physical impairment that can be
expected to result in death or can be expected to last for a
continuous period of not less than twelve (12) months, receiving
income or replacement benefits for a period of not less than three
(3) months under an accidental or health plan covering employees of
the Employer. Any determination of the Officer’s disability
status under Section 7(c)(i) shall be supported by the written
opinion of a physician competent in the branch of medicine to which
such disability relates.
(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 Restricted 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
23,099.8509 shares of Tyson Foods, Inc. Class A Common Stock
(“Common Stock”) subject to the terms and conditions of
a restricted stock grant agreement (referred to herein as
“Restricted Stock”) 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 20,000 options on each such
grant date to purchase shares of Common Stock (referred to herein
as “Stock Options”), 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
o
