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AGREEMENT
THIS AGREEMENT ("Agreement"), dated effective
September 28, 2007 (the "Effective Date"), is by and between Tyson
Foods, Inc., a corporation organized under the laws of Delaware
("Company"), and John Tyson ("Mr. Tyson").
WITNESSETH:
WHEREAS, the Company and Mr. Tyson previously
entered into an Amended and Restated Employment Agreement dated as
of July 29, 2003, which was subsequently amended on December 10,
2004 (as amended, the "Original Agreement");
WHEREAS, pursuant to the Original Agreement, Mr.
Tyson agreed to furnish services to the Company upon the terms,
provisions and conditions therein provided through February 12,
2008, with his employment thereunder to be automatically extended
for successive one-year periods thereafter unless terminated by
either the Company or Mr. Tyson upon 30 days' prior notice;
and
WHEREAS, the parties desire that Mr. Tyson cease
serving as an executive officer of the Company as of the Effective
Date; and after such date the Company wishes to receive advisory
services, and Mr. Tyson wishes to furnish such advisory services in
a non-officer capacity upon the terms, provisions and conditions
herein provided;
NOW, THEREFORE, in consideration of the foregoing
and of the agreements hereinafter contained, the parties hereby
agree as follows:
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1.
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The term of this Agreement ("Term") shall begin on
the Effective Date and shall end on the earlier of (i) September
27, 2017; and (ii) the early termination of this Agreement as
expressly provided herein.
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All provisions of the Original Agreement are hereby
terminated as of the Effective Date, including, without limitation,
the obligation of the parties to enter into the Senior Executive
Employment Agreement attached as Exhibit A to the Original
Agreement. The parties agree that (i) no termination benefits shall
be payable pursuant to Section 7 of the Original Agreement; and
(ii) no further grants of stock options beyond the Retained Options
shall be made to Mr. Tyson pursuant to the Original Agreement. In
connection with the termination of the Original
Agreement:
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(a)
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Mr. Tyson's outstanding shares of the Company's
restricted Class A Common Stock issued under the Tyson Foods, Inc.
2000 Stock Incentive Plan (the "Stock Plan") and granted to Mr.
Tyson under Section 3.4 of the Original Agreement in excess of
780,000 of such shares (such 780,000 shares being herein
collectively referred to as the “Retained Restricted
Stock”) shall be cancelled. Notwithstanding any other
provision of the Original Agreement or any restricted stock award
agreement under which same were received, the 780,000 shares of
Retained Restricted Stock shall remain in full force and effect and
shall, subject to the provisions herein, vest on the earlier of
(i) February 12, 2008 pursuant to the original terms of the
governing restricted stock award; (ii) the termination of this
Agreement by the Company for any reason other than for
“Cause;” (iii) Mr. Tyson’s death or Mr.
Tyson’s “Permanent Disability” (as defined and
determined under the Company’s Long-Term Disability Benefit
Plan applicable to the most senior officers of the Company as in
effect on the Effective Date); (iv) any material breach by the
Company (including, without limit, any reduction in the payment or
benefits owed to Mr. Tyson) of this Agreement; or (v) any
earlier date as provided under Section 17 or the otherwise
applicable (but not inconsistent) provisions of the governing Stock
Plan and restricted stock shares award agreement under which such
Retained Restricted Stock was issued or received. The Retained
Restricted Stock will not vest, and will be forfeited by Mr. Tyson,
if Mr. Tyson is terminated by the Company for “Cause”
or Mr. Tyson voluntarily terminates this Agreement (unless the
voluntary termination is due to a material breach by the Company).
Once vested the Retained Restricted Stock shall remain fully vested
and the Company will deliver a certificate for such vested Retained
Restricted Stock in accordance with the otherwise applicable (but
not inconsistent) provisions of the governing Stock Plan or award
agreement under which such Retained Restricted Stock was issued or
received;
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(b)
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Notwithstanding any other provision of the Original
Agreement or any stock option award agreement under which same were
received, Mr. Tyson's outstanding options to purchase shares of the
Company's Class A Common Stock issued at any time prior to the
Effective Date, as described in Schedule 1(c) attached hereto and
incorporated herein by reference (all such options being
collectively herein referred to as the “Retained
Options”) shall remain in full force and effect and shall
continue to vest on the earlier of (i) those vesting dates set
forth under Schedule 1 as occurring during
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the Term; (ii) the termination of this
Agreement by the Company for any reason other than for
“Cause;” (iii) Mr. Tyson’s death or Mr.
Tyson’s “Permanent Disability” (as defined and
determined under the Company’s Long-Term Disability Benefit
Plan applicable to the most senior officers of the Company as in
effect on the Effective Date); (iv) any material breach by the
Company (including, without limit, any reduction in the payment or
benefits owed to Mr. Tyson) of this Agreement; or (v) any earlier
date as provided under Section 17 or the otherwise applicable (but
not inconsistent) provisions of the governing plan and stock option
award agreement under which such Retained Options were issued or
received. Once vested, all Retained Options shall remain fully
vested and immediately exercisable, subject to the Company’s
internal securities trading policy as generally applicable to its
directors, officers and employees, in accordance with the otherwise
applicable (but not inconsistent) provisions of the Stock Plan and
stock option award agreement under which such Retained Options were
issued or received;
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(c)
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Mr. Tyson's outstanding performance stock awards to
receive shares of the Company's Class A Common Stock issued under
the Stock Plan shall be cancelled;
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(d)
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Mr. Tyson will not receive a bonus for the 2007
fiscal year;
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(e)
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Mr. Tyson will provide advisory services pursuant to
the terms and conditions of this Agreement; and
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(f)
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Upon completion of the Term of this Agreement or any
earlier termination of the Term of this Agreement, Mr. Tyson will
receive those retirement and/or continuing payments and benefits,
as specified herein, in the amounts and upon the terms hereinafter
contained.
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2.
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During the Term, Mr. Tyson will provide services to
the Company based on the following:
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(a)
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Mr. Tyson may be required to provide up to twenty
(20) hours per month of advisory services to the Company and
perform certain public relations duties, each upon the Company's
reasonable request. Such hourly requirement shall not be
cumulative, and Mr. Tyson shall have no obligation to the Company
to provide over twenty (20) hours of services in any month. Mr.
Tyson may perform such advisory services hereunder at any location
but may be required to be at the offices of the Company and/or
its
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subsidiaries upon reasonable advance notice and
after taking into account Mr. Tyson’s other personal and
professional obligations. Mr. Tyson shall not be obligated to
render advisory services under this Agreement during any period
when he is disabled due to illness or injury, and this Agreement
and the Term hereof shall nonetheless continue in full force and
effect with Mr. Tyson remaining entitled to receive all
compensation and benefits and with all Retained Restricted Stock
and Retained Options continuing to thereupon and thereafter vest as
provided hereunder.
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(b)
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As of the Effective Date, (i) Mr. Tyson shall cease
to serve as an executive officer of the Company; and (ii) Mr. Tyson
shall resign from all of his officer positions with the Company and
all of his officer and director positions with any Company
subsidiary. All services required hereunder shall be provided by
Mr. Tyson as a non-executive employee of the Company.
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(c)
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If Mr. Tyson’s employment under this Agreement
is terminated for "Cause," all further obligations of the Company
(other than the Company’s obligation to make any payments or
extend any benefits accrued and owed to Mr. Tyson up to and
including such date of termination) under this Agreement will
immediately cease. As used herein, the term "Cause" shall be
limited to (i) willful malfeasance or willful misconduct committed
by Mr. Tyson in connection with his performance of his duties
hereunder; (ii) gross negligence committed by Mr. Tyson in
connection with his performance of his duties hereunder which
results in material and demonstrable damage or injury to the
Company; (iii) any willful and material breach by Mr. Tyson of
Section 7 of this Agreement; or (iv) the conviction of Mr.
Tyson of any felony. Notwithstanding the foregoing, the Company
shall not terminate Mr. Tyson’s employment under this
Agreement for “Cause” under sub-clause (i)(ii) or (iii)
hereof unless and until the Company shall have provided Mr. Tyson
with written notice of the commission of any conduct constituting
“Cause” hereunder and providing Mr. Tyson with
reasonable opportunity to cure such event or conduct. In addition
to such cure, termination of Mr. Tyson’s employment
under this Agreement for “Cause” shall be made only
upon and after delivery to Mr. Tyson of a copy of a resolution
duly adopted by the affirmative vote of not less than a majority of
the then members of the Company’s Board of Directors (the
“Board”) at a meeting called and held for purposes of
considering such termination (and which meeting was conducted only
after providing Mr. Tyson with 30 days’ prior written notice
thereof and reasonable
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opportunity to attend such meeting and be heard
before the Board with respect to such matter prior to the Board
undertaking such vote) and finding that in the reasonable judgment
of the Board, Mr. Tyson was guilty of conduct constituting
“Cause” under this Agreement and specifying the
particulars of such conduct. If the Board determines Mr. Tyson was
guilty of conduct constituting “Cause,” Mr. Tyson will
reimburse the Company for any benefits and payments received under
the terms of this Agreement between the date of the notice provided
pursuant to this Section 2(c) and the determination of the
Board.
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(d)
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Except for “Cause,” the Company may not
terminate this Agreement.
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(e)
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Mr. Tyson may terminate this Agreement and his
employment with the Company hereunder at any time, with or without
reason, upon providing the Company with written notice of such
termination which notice shall specify the date of such
termination. Upon receipt of such notice by the Company, all
obligations of the Company under this Agreement shall immediately
cease; any unvested Retained Restricted Stock and Retained Options
will immediately terminate and expire, and any vested Retained
Options will be exercisable pursuant to the terms of the Stock
Plan. In the event of a termination of this Agreement by Mr. Tyson,
his obligations under Section 7 of the Agreement will continue
after the termination.
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3.
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During the Term, the Company shall pay Mr. Tyson
$300,000 annually for his services provided under this Agreement.
The Company shall pay Mr. Tyson the foregoing amount through its
regular payroll processes and shall convert the annual amount shown
above into level payments for each payroll cycle occurring during
the applicable period.
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4.
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In addition to the compensation paid pursuant to
Section 3, throughout the entire Term, (i) Mr. Tyson
shall be eligible to participate in any benefit plan or program
maintained by the Company other than plans or programs related to
Company bonus, equity compensation or long-term disability, (ii)
the Company shall provide Mr. Tyson with coverage under all
employee pension and welfare benefit programs, plans and practices
in accordance with the terms thereof and which the Company
generally makes available to its most senior officers, and (iii)
the Company shall provide Mr. Tyson, his spouse and his eligible
dependents with healthcare, hospitalization, medical, long term
care, vision, dental, and other similar insurance coverage or
benefits (collectively the “Health Coverage”) under the
Tyson Healthcare
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Continuation Plan or any successor or additional
plan maintained by the Company and at such coverage levels and upon
such terms and conditions as shall otherwise be made available to
any of the most senior officers of the Company (including, without
limitation, the provision of the Health Coverage at a monthly cost
to Mr. Tyson that is equal to the monthly premium cost paid by
other similarly situated participants). Unless this Agreement is
terminated by the Company for “Cause” or voluntarily by
Mr. Tyson (other than by reason of the Company’s breach of
this Agreement), from and after the expiration or termination of
the Term of this Agreement, the Company shall continue to provide
Health Coverage to Mr. Tyso
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