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TYSON FOODS, INC.
RESTRICTED STOCK UNIT AGREEMENT
RESTRICTED STOCK UNIT AGREEMENT (the
“Agreement”) is made and entered into as of September
28, 2007 (the “Grant Date”), by and between TYSON
FOODS, INC., a Delaware corporation (the “Company”),
and Richard L. Bond (the “Employee”) SSN
###-##-###.
Subject to the Additional Terms and Conditions
attached hereto and incorporated herein by reference as part of
this Agreement, the Company hereby awards as of the Grant Date to
the Employee the restricted stock units (“Restricted Stock
Units”) described below (the “Restricted Stock Unit
Grant”) pursuant to the Tyson Foods, Inc. 2000 Stock
Incentive Plan (the “Stock Plan”) in consideration of
the Employee’s services to be rendered on behalf of the
Company as contemplated by the terms of the Employee’s
current Employment Agreement with the Company (the
“Employment Agreement”) and the cancellation and
forfeiture of shares of restricted stock previously held by the
Employee pursuant to a grant made on July 29, 2003.
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A.
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Grant Date : September
28, 2007.
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B.
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Restricted Stock Units : Restricted Stock Units representing the right to receive
853,589.7829 shares of the Company’s Class A common stock,
par value $.10 per share (“Common Stock”), plus any
additional Restricted Stock Units credited pursuant to Section 3(b)
of the Additional Terms and Conditions attached hereto.
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C.
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Vesting Schedule : The
Restricted Stock Units shall vest according to the Vesting Schedule
attached hereto as Schedule 1. The Restricted Stock Units which
have become vested pursuant to the Vesting Schedule are herein
referred to as the “Vested Stock Units.”
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D.
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Payment of Vested Stock Units
: The Company shall issue to the Employee one share
of Common Stock for each Vested Stock Unit held by the Employee
(the “Vested Shares”) on the earlier of the following
dates to occur (the “Payment Date”):
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(i)
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the first business day of the fiscal year beginning
after the date on which the Employee separates from service, within
the meaning of Section 409A of the Code (a “Separation from
Service”); or
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(ii)
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if the Vesting Date is accelerated due to a Change
in Control (as described in Section 5(c) of the Additional Terms
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Conditions) and such Change in Control is a
“change in control event” within the meaning of Section
409A of the Code, the Payment Date will be made, at the discretion
of the Company, after, but no later than sixty (60) days following,
the effective date of the Change in Control.
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E.
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Cancellation and Forfeiture of Restricted
Shares . In consideration for the
Restricted Stock Unit Grant, the Restricted Stock Agreement, dated
July 29, 2003, between the Company and the Employee is hereby
cancelled and terminated in its entirety and the Employee hereby
forfeits 853,589.7829 shares of restricted stock held by the
Employee and scheduled to vest on February 12, 2008 pursuant to
such agreement and authorizes the immediate transfer of such shares
to the Company.
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F.
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Compliance With Section 409A of the
Code . This Restricted Stock Unit Grant
is intended to comply with Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”), and shall be
interpreted and construed accordingly. The difference in the timing
of the Payment Date pursuant to this Agreement and the vesting date
under the Restricted Stock Agreement cancelled pursuant to
Paragraph E above is intended to comply with Section 409A of the
Code based on the Company’s interpretation of the final
regulations thereunder, including the transition rule set forth in
IRS Notice 2005-1, Q&A-19(c), and extended in IRS Notice
2006-79, which permits the timing of the payment of deferred
compensation or a short-term deferral to be changed prior to
January 1, 2008.
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IN WITNESS WHEREOF, the Company and the Employee
have executed this Agreement as of the Grant Date set forth
above.
By: /s/ Kenneth
Kimbro
2
ADDITIONAL TERMS AND CONDITIONS OF
TYSON FOODS, INC.
RESTRICTED STOCK UNIT AGREEMENT
1.
Stock Units Credited to Unfunded
Account . The Restricted Stock Units and
Vested Stock Units subject to this Agreement shall be unfunded
units, each of which shall be measured by reference to one share of
Common Stock and credited to an account maintained for the benefit
of the Employee. The Committee (as defined in the Stock Plan) shall
cause periodic statements of account to be delivered to the
Employee, at such time or times as the Committee may determine in
its sole discretion, showing the number of Restricted Stock Units
and Vested Stock Units held by the Employee. Subject to other
Additional Terms and Conditions, the Committee shall cause the
Vested Shares to be issued to the Employee on the Payment
Date.
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2.
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Condition to Delivery of Vested Shares.
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a.
The Employee may notify the Company in writing,
which notice must be received by the Company at least thirty (30)
days prior to the Payment Date, that the Employee wishes to pay all
of the tax withholding obligations (whether federal, state or
local) imposed on the Company by reason of the issuance of the
Vested Shares to the Employee. If Employee so notifies the Company,
in order to receive the Vested Shares, Employee must deliver to the
Company on the Payment Date either cash or a certified check
payable to the Company in the amount of all of the tax withholding
obligations (whether federal, state or local) imposed on the
Company by reason of the issuance of the Vested Shares to which the
election applies.
b.
If the Employee does not deliver a timely election
to make a supplemental payment with cash or by certified check for
tax withholding obligations as provided in Section 2(a) as to all
or a portion of the Vested Shares, Employee will be deemed to have
elected to have the actual number of Vested Shares reduced by the
smallest number of whole shares of Common Stock which, when
multiplied by the Fair Market Value of the Common Stock, as
determined by the Committee, on the Payment Date is sufficient to
satisfy the amount of the tax withholding obligations imposed on
the Company by reason of the issuance of such Vested Shares (the
“Withholding Election”). Employee understands and
agrees that Employee’s signing of this Agreement will be
deemed to be Employee’s election to make a Withholding
Election pursuant to this Section 2 and such other consistent terms
and conditions prescribed by the Committee.
c.
The Committee reserves the right to give no effect
to a Withholding Election in which case the Employee will remain
obligated to satisfy applicable tax withholding obligations with
cash or by a certified check in the manner provided by the
Committee. If the Committee elects not to give effect to the
Withholding Election, it shall provide the Employee with written
notice reasonably in advance of the Payment Date.
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3.
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Rights as Stockholder.
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a.
Employee, or his permitted
transferee under Section 4(d) below, shall have no rights as a
stockholder with respect to the shares subject to the Restricted
Stock Unit Grant until the Vested Shares are issued to the Employee
on the Payment Date.
b.
As of each date on which the Company pays a cash
dividend to record owners of shares of Common Stock (a
“Dividend Date”), the Employee shall be credited with
additional Restricted Stock Units equal to (i) the product of the
total number of Restricted Stock Units held by the Employee
immediately prior to such Dividend Date multiplied by the dollar
amount of the cash dividend paid per share of Common Stock by the
Company on such Dividend Date, divided by (ii) the Fair Market
Value of a share of Common Stock on such Dividend Date. Any such
additional Restricted Stock Units shall be subject to the same
vesting conditions and payment terms set forth herein as the
Restricted Stock Units to which they relate. On each Dividend Date,
the Employee shall be credited with additional Vested Stock Units
equal to (A) the product of the total number of Vested Stock Units
held by the Employee immediately prior to such Dividend Date
multiplied by the dollar amount of the cash dividend paid per
share
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