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EXECUTIVE EMPLOYMENT AGREEMENT
(PROMOTIONAL)
This Promotional Executive Employment Agreement (the
“Agreement”), effective the 6 th day of
March, 2007 (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
KING, DONNIE 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 Group VP
Operations 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
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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 Four hundred fifteen thousand dollars
and 00/100 ($ 415,000 ) 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
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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 Deferred Stock
Award (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, Employer shall
continue to pay Officer at Officer’s current salary paid in
the manner provided in Section 3 above for a period of eighteen
after the date of termination. In either event, Employer shall
treat Officer’s Stock Options, Performance Stock and Deferred
Stock Award 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.
(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 Deferred Stock Award 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.
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(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 Deferred
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 29,0183.0616 shares of Tyson Foods,
Inc. Class A Common Stock (“Common Stock”) subject to
the terms and conditions of a restricted stock grant agreement
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 40,000 options on each such grant date to purchase shares of Common
Stock, 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 officers generally.
(iii)
On the first business day of each of the Company's
2008, 2009 and 2010 fiscal years, Officer shall receive a
performance award payable in shares of Common Stock (referred to
herein as “Performance Stock”) having an annual maximum
aggregate value of $ 375,000
on the date of the award, subject to the terms and
conditions of the Stock Plan and the form of performance award
currently in use by the Employer for officers generally. Subject
to
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the satisfaction of the performance criteria set
forth in the applicable performance award agreement, the award made
in 2008 shall vest two (2) business days after the Company publicly
releases its earnings for the 2010 fiscal year, the award made in
2009 shall vest two (2) business days after the Company publicly
releases its earnings for the 2011 fiscal year, and the award made
in 2010 shall vest two (2) business days after the Company publicly
releases its earnings for the 2012 fiscal year.
(b) Officer recognizes that, as a result of Officer’s
employment hereunder (and Officer’s employment, if any, with
Employer
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