AGREEMENT
THIS AGREEMENT (the
“Agreement"), dated January 16, 2009 and to be effective as
of January 5, 2009 (the "Effective Date"), is by and between Tyson
Foods, Inc., a corporation organized under the laws of Delaware
(the "Company"), and Richard L. Bond ("Mr. Bond").
WITNESSETH:
WHEREAS, the
Company and Mr. Bond previously entered into that certain Second
Amended and Restated Employment Agreement dated as of December 19,
2006 (the "Original Agreement");
WHEREAS, pursuant
to the Original Agreement, Mr. Bond agreed to furnish services to
the Company upon the terms, provisions and conditions therein
provided through December 31, 2009; and
WHEREAS, the
parties have mutually agreed that Mr. Bond shall 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. Bond wishes to furnish such advisory services 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) January 4, 2019; or (ii) the early
termination of this Agreement as expressly provided
herein.
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2.
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During the Term,
Mr. Bond will provide services to the Company based on the
following:
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(a)
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Mr. Bond may be
required to provide up to twenty (20) hours per month of advisory
services to the Company upon the Company's reasonable request and
advance notice. Such hourly requirement shall not be cumulative,
and Mr. Bond shall have no obligation to the Company to provide
over twenty (20) hours of services in any month. Mr. Bond may
perform such advisory services hereunder at any location but may be
required to be at the offices of the Company or its subsidiaries
upon reasonable advance notice and after taking into account Mr.
Bond’s other personal and professional obligations. Mr. Bond
shall not be obligated to render advisory services
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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. Bond remaining entitled
to receive all compensation and benefits and with all Retained
Restricted Stock and Retained Options (as each term is defined
below) 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. Bond shall cease to serve as an executive officer of
the Company; and (ii) Mr. Bond shall resign from all of his officer
and director positions with any Company subsidiary. All services
required hereunder shall be provided by Mr. Bond as a non-executive
employee of the Company.
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(c)
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The Company may
terminate Mr. Bond’s employment under this Agreement for
"Cause" and in such event, 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. Bond 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. Bond in connection with his performance of his duties
hereunder; (ii) gross negligence committed by Mr. Bond in
connection with his performance of his duties hereunder which
results in material and demonstrable damage or injury to the
Company; (iii) any breach by Mr. Bond of Section 7 of this
Agreement which results in material and demonstrable damage or
injury to the Company; or (iv) the conviction of Mr. Bond of
any felony. Notwithstanding the foregoing, the Company shall not
terminate Mr. Bond’s employment under this Agreement for
“Cause” under sub-clause (i), (ii) or (iii) hereof
unless and until the Company shall have provided Mr. Bond with
written notice of the commission of any conduct constituting
“Cause” hereunder and providing Mr. Bond with
reasonable opportunity to cure such event or conduct. In addition,
if Mr. Bond fails to cure, termination of Mr. Bond’s
employment under this Agreement for “Cause” shall be
made only upon and after delivery to Mr. Bond 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. Bond with 30 days’ prior
written notice thereof and reasonable opportunity to attend such
meeting and be heard before the Board with respect to
such
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matter prior to the
Board undertaking such vote) and finding that in the reasonable
judgment of the Board, Mr. Bond was guilty of conduct constituting
“Cause” under this Agreement and specifying the
particulars of such conduct. If the Board determines Mr. Bond was
guilty of conduct constituting “Cause,” Mr. Bond 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. Bond 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 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. Bond, his
obligations under Section 7 of the Agreement will continue after
the termination.
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3.
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(a) During
the Term, the Company shall pay Mr. Bond each year for five (5)
years the sum of $757,620 per year, and for the next five (5) years
the sum of $378,810 per year. The Company shall pay Mr. Bond 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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(b)
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Within ten (10)
days of the execution hereof, and in connection with Mr.
Bond’s provision of services hereunder, the Company will
convey to Mr. Bond a 2009 Mercedes VIN XXXXXXXXXXXXXXXXX. The
Company will reimburse and gross-up Mr. Bond for any and all tax
liability (including interest and penalties) imposed upon Mr. Bond
in connection with the conveyance of such vehicle.
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(c)
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During the Term,
the Company will provide Mr. Bond with the use of, and the payment
of all reasonable expenses associated with, a mobile telephone (Mr.
Bond will pay the same monthly fee charged other employees of the
Company for a mobile telephone), e-
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mail or other
communication devices. In addition, during the Term the Company
shall reimburse Mr. Bond for expenses incurred in connection with
the business of the Company or in the performance of his services
and duties under this Agreement including without limitation,
expenses for travel and similar items, in accordance with the
policies of the Company.
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(d)
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In addition,
throughout the Term, (i) Mr. Bond 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, long-term disability or life insurance, (ii)
the Company shall provide Mr. Bond 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. Bond, 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 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. Bond that is equal to the monthly premium cost paid by other
similarly situated participants).
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(e)
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During the Term,
the Company shall also provide Mr. Bond with the following
perquisites:
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(i)
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Personal use of the
Company-owned aircraft for up to twenty-five (25) hours per year
during the first three (3) years of the Term; provided, however,
that Mr. Bond's personal use of such aircraft shall not interfere
with Company use of such aircraft. The Company will reimburse and
gross-up Mr. Bond for any and all tax liability (including interest
and penalties) imposed upon Mr. Bond in connection with his
personal use of such aircraft; and
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(ii)
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Payment by the
Company of the annual premium payment (which shall not exceed
$85,435.00) on that certain existing $5,000,000 life insurance
policy number JPXXXXXXX issued March 12, 2004 by Lincoln Financial
on the life
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of Mr. Bond
consistent with past practice. If during the Term Mr. Bond chooses
to replace the existing policy with a different life insurance
policy, the Company’s obligation to make such annual premium
payment for Mr. Bond will not exceed $85,435.00.
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4.
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Except as to the
Retained Restricted Stock and Retained Options, 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 no
termination benefits shall be payable pursuant to Section 7 of the
Original Agreement. In connection with the termination of the
Original Agreement:
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(a)
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Mr. Bond's
outstanding shares of the Company's restricted Class A Common Stock
(the “Retained Restricted Stock”) issued under the
Tyson Foods, Inc. 2000 Stock Incentive Plan (the "Stock Plan") and
granted to Mr. Bond under Section 3.4 of the Original Agreement,
which currently number 383,721.0143 shares, shall vest on the
earlier of (i) October 5, 2009; (ii) Mr. Bond’s death or
“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); (iii) any material breach by the Company
(including, without limit, any reduction in the payment or benefits
owed to Mr. Bond) of this Agreement; or (iv) any earlier date
as provided under Section 16 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. Once vested, the Retained Restricted
Stock shall remain fully vested and the Company will electronically
deliver such vested Retained Restricted Stock within ten (10)
business days of vesting to an account designated by Mr. Bond
;
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(b)
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Mr. Bond's
outstanding restricted stock units granted pursuant to that certain
Restricted St
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