EMPLOYMENT
AGREEMENT
This Employment
Agreement (the “Agreement”), effective the 10
th day of August, 2009 (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 Donald J Smith, Persn XXXX
(hereinafter referred to as “Employee”).
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, Employee,
by virtue of Employee’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, Employee could do substantial business
harm to Employer; and
WHEREAS, Employer
has advised Employee 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 Employee 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 Employee, in consideration of the above and the terms
and conditions contained herein, hereby mutually agree as
follows:
1.
Duties . Employee shall perform the duties of Sr Grp VP
Poultry & Prepared Foods or shall serve in such other
capacity and with such other duties for Employer as Employer shall
from time to time prescribe. Employee shall perform all such duties
with diligence and thoroughness. Employee shall be subject to and
comply with all rules, policies, procedures, supervision and
direction of Employer in all matters related to the performance of
Employee’s duties.
2.
Term of Employment . The term of employment hereunder shall
be for a period of three (3) years, commencing on the Effective
Date and terminating on the third 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 third 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 Employee 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,
Employee shall be compensated by Employer during the Period of
Employment at the rate of not less than Five hundred fifty
thousand dollars and 00/100 ($ 550,000.00 ) 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 . Employee shall be
entitled to participate in any benefit programs generally
applicable to employees of Employer adopted by Employer from time
to time. All expenses for which Employee may be eligible for
reimbursement and all in-kind benefits Employee may receive
pursuant to this Section 4 must be incurred by or provided to, as
applicable, the Employee during the Period of Employment for the
Employee to be eligible for the reimbursement or the in-kind
benefit. All taxable reimbursements shall be paid as soon as
administratively practicable, but in no event shall any
reimbursement be paid after the last day of the taxable year
following the taxable year in which the expense was incurred, nor
shall the amount of taxable, reimbursable expenses incurred or
in-kind benefits provided in one taxable year affect the expenses
eligible for reimbursement or the in-kind benefits provided, as
applicable, in any other taxable year. The right to a taxable
reimbursement or an in-kind benefit under this Agreement will not
be subject to liquidation or exchange for another
benefit.
5.
Limitation on Outside Activities . Employee shall devote
Employee’s full employment energies, interest, abilities and
time to the performance of Employee’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
Employee’s duties hereunder.
6.
Ownership of Employee’s Inventions . All ideas,
inventions, and other developments or improvements conceived by
Employee, alone or with others, during Employee’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. Employee 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 . Employee may terminate
Employee’s employment, including Employee’s retirement,
pursuant to this Agreement at any time by not less than thirty (30)
days prior written notice to Employer. Upon receipt of such notice,
Employer shall have the right, at its sole discretion, to
accelerate Employee’s date of termination at any time during
said notice period. Employee shall not be entitled to any
compensation from Employer for any period beyond Employee’s
actual date of termination, and Employee’s Stock Options and
Restricted Stock (each as hereinafter defined) shall be treated as
provided in the award agreements pursuant to which such rights were
granted. Employee shall not be entitled to a bonus for the fiscal
year of the Employer in which such termination occurs.
(b)
Involuntary Termination Without Cause . Employer shall be
entitled, at its election and without Cause (as defined in Section
7(c)), to terminate Employee’s employment pursuant to this
Agreement upon written notice to Employee. Subject to the
limitations of Section 7(e), upon a termination by Employer without
Cause pursuant to this Section 7(b), Employer shall continue to pay
Employee at Employee’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 which
occurs on or after the effective date of the termination), and
continuing for a period of eighteen (18) months after the date of
the separation from service. Employer shall treat Employee’s
Stock Options and Restricted Stock as provided in the award
agreements pursuant to
which such equity
rights were granted. Employee shall not be entitled to any bonus
for the fiscal year of the Employer in which such termination by
Employer occurs.
The
Employee’s eligibility to receive benefits under this Section
7(b) shall be conditioned upon (i) the Employee’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 Employee. 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 Employee’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)
Involuntary Termination With Cause .Employer may, at its
sole and absolute discretion, terminate this Agreement and
Employee’s Period of Employment hereunder for Cause (defined
below) without any payment, liability or other obligation. As used
herein, the term "Cause" shall mean (i) willful malfeasance or
willful misconduct committed by Employee in connection with
Employee’s performance of Employee’s duties hereunder
which results in damage or injury to the Employer; (ii) gross
negligence committed by Employee in connection with the performance
of Employee’s duties hereunder which results in damage or
injury to the Employer; (iii) any willful and material breach by
Employee of Section 8 of this Agreement, as determined in the
Employer’s sole discretion; or (iv) the conviction of
Employee of a felony or job-related misdemeanor.
(d)
Death or Incapacity . If Employee is unable to perform
Employee’s duties pursuant to this Agreement by reason of
Disability (defined below), Employer may terminate Employee’s
employment pursuant to this Agreement by thirty (30) days written
notice to Employee. If Employee is unable to perform
Employee’s duties pursuant to this Agreement by reason of
death, this Agreement shall immediately terminate. Employee’s
Stock Options 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 Employee’s death or Disability, Employee, or
Employee’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(d) occurs, based upon the
bonus received by Employee 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 Employee’s death
or determination of Disability status, as applicable. For purposes
of this Section 7(d), “Disability” means the Employee
(i) is 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 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 due to 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. Any determination of the
Employee’s disability status under Section 5(d)(i) shall be
supported by the written opinion of a physician competent in the
branch of medicine to which such disability relates.
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(e)
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Temporary
Suspension or Limitation of Payments .
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(i) Notwithsta
