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Exhibit
10.1
VeraSun Energy
Corporation
Senior Management
Retention Plan
1. General Purpose of the
Plan . This Senior Management Retention Plan (this
“Plan”) is for the benefit of certain management
employees of VeraSun Energy Corporation, a South Dakota
corporation, or a subsidiary of VeraSun Energy Corporation
(collectively, the “Company”), and has been established
by the Company to reinforce and encourage the continued attention
and dedication of members of the Company’s management team to
their assigned duties without distraction in the face of
potentially disruptive circumstances arising from the possibility
of a Change in Control (as defined on Attachment A hereto) on or
prior the third anniversary of the date (the “Effective
Date”) this Plan is adopted by the Compensation Committee of
the Board of Directors of the Company (the
“Committee”).
2. Administration. This
Plan will be administered by the Committee. The Committee shall
have the authority and discretion, subject to the terms of this
Plan, to interpret and make all necessary determinations under this
Plan.
3. Determination of
Participants . The participants in the Plan shall be
the executive officers of the Company and such other key employees,
as selected by the Chief Executive Officer, that are, in each case,
employees of the Company as of the Effective Date. Each employee
that is selected to be a participant in the Plan will receive a
written notice from the Company regarding his or her participation
in the Plan. Upon a Change in Control, each participant that is
either (a) employed by the Company at the time of the Change
in Control or (b) for those employees that have entered into a
Change in Control Agreement with the Company or any subsidiary of
the Company, employed by the Company at the time of the Change in
Control or eligible to receive the Severance Benefit or Severance
Payments (as such terms are defined in the Change in Control
Agreements) pursuant to such Change in Control Agreement (each, an
“Eligible Participant”) will receive a payment from the
Company calculated in the manner provided in
Section 4.
4. Determination of Payment
Amount . The amount to be paid by the Company to
Eligible Participants pursuant to the Plan shall equal the Eligible
Participant’s “ Net Payment Amount .” The
Net Payment Amount shall equal the Eligible Participant’s
“ Expected Gain ” minus the
Eligible Participant’s “ Realized Gain ,”
if any (as each such terms are defined below).
(a) Expected Gain. An
Eligible Participant’s “ Expected Gain ”
shall equal the sum of the “ Expected Option Gain
” and the “ Expected Stock Gain ” (as such
terms are defined below).
(i) Expected Option
Gain. For stock option award agreements (whether unvested,
partially vested or fully vested) that were granted to the Eligible
Participant prior to the Effective Date and provide the Eligible
Participant the right to purchase shares of the Company’s
common stock (the “ Eligible Option Grants ”),
the “ Expected Option Gain ” shall equal to the
sum of the Black-Scholes or other fair value of each stock option
granted pursuant to the Eligible Option Grant calculated as of the
grant date, respectively, and as reflected in the financial
statements of the Company at the time of the grant, or, if no grant
date fair value was required to be reflected in such financial
statements, the grant date fair value which would have been
recognized in respect of such option using the assumptions utilized
to determine such value in the financial statements of the Company
issued most recently prior to the Effective Date.
(ii) Expected Stock
Gain. For restricted stock award agreements (whether unvested,
partially vested or fully vested) that were granted pursuant to the
Eligible Participant prior to the Effective Date (the “
Eligible Stock Grants ”), “ Expected Stock
Gain ” shall equal the product of the (x)
the number of shares granted to the Eligible Participant
pursuant to Eligible Stock Grants times (y) the price
per share of the Company’s common stock on the date of each
such Eligible Stock Grant, based on closing price of the
Company’s common stock on such date.
(b) Realized Gain. An
Eligible Participant’s “ Realized Gain ”
shall equal the sum of the “ Realized Option Gain
” and the “ Realized Stock Gain ” (as such
terms are defined below).
(i) Realized Option
Gain. For each stock option (whether unvested, partially vested
or fully vested) granted pursuant to the Eligible Option Grants,
the “ Realized Option Gain ” shall equal the sum
of positive difference(s), if any, between (x) the
“ Change in Control Price ” (as defined below)
minus (y) the exercise price of each stock option
granted pursuant to the Eligible Option Grants.
(ii) Realized Stock
Gain. For each share of restricted stock (whether unvested,
partially vested or fully vested) granted pursuant Eligible Stock
Grants, the “ Realized Stock Gain ” shall equal
the product of (x) the number of shares granted to the
Eligible Participant pursuant to Eligible Stock Grants times
(y) the Change in Control Price.
The “
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