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SEPARATION AGREEMENT AND GENERAL
RELEASE
THIS SEPARATION AGREEMENT AND GENERAL RELEASE (this
“Agreement”) is made and entered into by and
between William W. Lovette;
("Employee") and Tyson Foods, Inc.
(“Employer”), dated this 12th day of November,
2007.
STATEMENT OF FACTS
Employee desires to accept the following Agreement,
including, without limitation, certain additional consideration
from Employer pursuant to the terms of Employee’s existing
employment agreement with Employer (the promotional Executive
Employment Agreement attached hereto as Exhibit A, referred to as
the “Employment Agreement”) in return for
Employee’s general release and restrictive covenant
acknowledgements set forth below. Employee and Employer, on behalf
of itself and its affiliates (collectively, “Tyson”),
desires to settle fully and finally all differences and disputes
between them, including, but in no way limited to, any differences
and disputes that might arise, or have arisen, out of
Employee’s employment with Employer and the termination of
that employment relationship.
STATEMENT OF TERMS
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In consideration of the mutual promises herein, it
is agreed as follows:
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1.
Non-Admission of Liability
. Neither this Agreement nor the offer by Employer
to enter into this Agreement shall in any way be construed as an
admission by Employer that it has acted wrongfully with respect to
Employee or any other person, or that Employee has any rights
whatsoever against Tyson. Employer specifically disclaims any
liability to or wrongful acts against Employee or any other person,
on the part of itself and any of the other Releasees (as defined in
Section 11 below).
2.
Termination of Employment
. Employee
acknowledges, understands and agrees that Employee’s
employment with Employer terminates on November 17, 2007 (the
"Separation Date").
3.
Effective Date .
The effective date of this Agreement shall be the eighth day after
Employee signs this Agreement.
4.
Consideration .
In full consideration and as material inducement for
Employee’s signing of this Agreement, the sufficiency of
which is hereby acknowledged, the Employer agrees that:
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(a)
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Upon the Separation Date, the Employer agrees to
make the following post-employment payments to the
Employee:
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(i)
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Employer will pay Employee a severance benefit equal
to eighteen (18) months of Employee’s then existing base
salary less all legally required deductions to be paid in
substantially equal installments on each of the
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Employer’s regular payroll dates falling
between the Separation Date through May 17, 2009 (“Severance
Period”).
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(ii)
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In the event that upon his Separation Date on
November 17, 2007, the Employee elects COBRA continuation coverage
to provide for health benefits for himself (and, if applicable,
eligible dependents), such will be paid for by the Employer, less
the portion of the premium cost paid by active employees for said
coverages through May 17, 2009, or until Employee notifies the
Employer that he has obtained health insurance coverage elsewhere
and no longer wishes to be covered under the Employer’s plan,
whichever is earlier.
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It is understood that Employee’s coverages
under all Employer benefit plans other than its group medical,
dental, vision and drug plan(s), including, but not limited to,
retirement, disability, accidental death and dismemberment, life
insurance, vacation and stock plans cease as of the November 17,
2007.
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(iii)
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As soon as practical after the Separation Date
Employee shall be entitled to delivery of previously granted shares
of Class A Common Stock pursuant to the terms of the Restricted
Stock Grants made to the Employee totaling 59,220.9804 shares
delivered in accordance with the terms and conditions of the
Restricted Stock Agreements (including any tax withholding
obligations).
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(iv)
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Employee shall not be entitled to receive any
Performance Shares pursuant to Performance Stock Awards previously
granted to Employee and as such said grants are hereby
cancelled.
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(v)
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Employee shall be entitled to exercise any
outstanding stock options awards previously granted to Employee to
the extent vested as of November 17, 2007, all in accordance with
the provisions of each specific option grant. Those outstanding
stock options grants not vested as of November 17, 2007, but having
been granted on or before November 17, 2004 shall accelerate and
will be 100% vested as of November 17, 2007. Any and all stock
option awards, to the extent not vested as of November 17, 2007
shall be forfeited unless modified herein.
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(vi)
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All vested stock options and restricted stock are
being delivered to Employee in accordance with the Severance
Program adopted by the Compensation Committee Officers.
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(vii)
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Employee shall receive a one time lump sum payment
of Two Hundred Three Thousand Six Hundred Twenty-One and No/100
Dollars ($203,621.00) within ten (10) days of the Separation Date
less all legally required deductions for fiscal 2007 merit
bonus.
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5.
Cessation of Authority
. Employee understands and agrees that as of the
Separation Date, Employee is no longer authorized to incur any
expenses, obligations or liabilities, or to make any commitments on
behalf of Employer. Employee agrees to submit to Employer on or
before November 17, 2007, any and all expenses incurred by Employee
through that date and any and all contracts or other obligations
entered into by Employee on behalf of Employer.
6.
Return of Company Materials and
Property . Employee understands and
agrees that Employee has or will turn over to Employer, on or
before the Separation Date, all files, memoranda, records, credit
cards, manuals, computer equipment, computer software, pagers,
cellular phones, facsimile machines, company vehicles and any other
equipment or documents, and all other physical or personal property
that Employee received from Employer and/or that Employee used in
the course of Employee’s employment with Employer and that
are the property of Employer.
Employee agrees, represents and acknowledges that as
a result of Employee’s employment with Employer, Employee has
had in Employee’s custody, possession and control proprietary
documents, data, materials, files and other similar items
concerning proprietary information of Tyson. Employee acknowledges,
warrants and agrees that Employee has returned all such items and
any copies or extras thereof and any other property, files or
documents obtained as a result of Employee’s employment with
Employer, Employee has deleted any such information maintained in
electronic form on Employee’s personal computer and Employee
has held such information in trust and in strict confidence and
will continue to do so after termination from Employer, and that
Employee has complied and will comply with Tyson’s policies
regarding proprietary and confidential information.
7.
No Obligation . Employee agrees and understands
that the consideration described above in Section 4 of this
Agreement is not required by Employer’s policies and
procedures absent Employee’s execution of this Agreement or
by any contracts between Employee and Employer procedures absent
Employee’s execution of this Agreement. Employee further
agrees and understands that Employee’s entitlement to receive
the consideration set forth above is conditioned upon
Employee’s execution of this Agreement and is subject to the
further terms and conditions of this Agreement. In addition,
Employer will be excused from its obligations under this
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