Annual Report — Form 10-K — Sect. 13 / 15(d) – SEA’34 Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: 10-K Annual Report HTML 1.76M
2: EX-4.25 Sara Lee 2032 Note HTML 76K
3: EX-10.19 Employment Agreement, Dated August 29, 2014, by HTML 102K
and Between Andrew P. Callahan
4: EX-10.20 Employment Agreement, Dated August 29, 2014, by HTML 102K and Between Sally Grimes
5: EX-10.21 Employment Agreement, Dated August 29, 2014, by HTML 102K
and Between Thomas P. Hayes
6: EX-10.22 Employment Agreement, Dated August 29, 2014, by HTML 102K
and Between Mary Oleksiuk
7: EX-10.23 Form of Retention Award Letter Agreement, Dated HTML 54K
August 29, 2014
8: EX-10.57 Serp Amendment HTML 73K
10: EX-21 Subsidiaries of the Company HTML 75K
11: EX-23 Consent of Pricewaterhousecoopers, LLP HTML 43K
9: EX-12.1 Calculation of Ratio Earnings to Fixed Charges HTML 62K
12: EX-31.1 Certification of Chief Executive Officer Pursuant HTML 48K
to SEC Rule 13A-14(A)/15D-14(A
13: EX-31.2 Certification of Chief Financial Officer Pursuant HTML 48K
to SEC Rule 13A-14(A
14: EX-32.1 Certification of Chief Executive Officer Pursuant HTML 45K
to 18 U.S.C. Section 1350, as
15: EX-32.2 Certification of Chief Financial Officer Pursuant HTML 45K
to 18 U.S.C. Section 1350, as
103: R1 Document and Entity Information HTML 71K
78: R2 Consolidated Statements Of Income HTML 154K
96: R3 Consolidated Statements of Comprehensive Income HTML 73K
Statement
108: R4 Consolidated Balance Sheets HTML 141K
137: R5 Consolidated Balance Sheets (Parentheticals) HTML 52K
82: R6 Consolidated Statements Of Shareholders' Equity HTML 172K
95: R7 Consolidated Statements Of Cash Flows HTML 143K
71: R8 Business And Summary Of Significant Accounting HTML 91K
Policies
59: R9 Changes In Accounting Principles HTML 50K
139: R10 Acquisitions and Dispositions HTML 106K
110: R11 Discontinued Operation HTML 66K
109: R12 Property, Plant And Equipment HTML 62K
117: R13 Goodwill And Other Intangible Assets HTML 176K
118: R14 Debt HTML 100K
114: R15 Equity HTML 108K
119: R16 Income Taxes HTML 160K
97: R17 Other Income And Charges HTML 47K
105: R18 Earnings Per Share HTML 116K
112: R19 Derivative Financial Instruments HTML 207K
149: R20 Fair Value Measurements HTML 222K
129: R21 Stock-Based Compensation HTML 132K
88: R22 Pensions And Other Postretirement Benefits HTML 452K
111: R23 Comprehensive Income (Loss) HTML 136K
92: R24 Segment Reporting HTML 187K
48: R25 Supplemental Cash Flow Information HTML 55K
131: R26 Transactions With Related Parties HTML 52K
144: R27 Commitments And Contingencies HTML 85K
65: R28 Quarterly Financial Data (Unaudited) HTML 165K
64: R29 Condensed Consolidating Financial Statements HTML 708K
69: R30 Valuation And Qualifying Accounts HTML 96K
70: R31 Business And Summary Of Significant Accounting HTML 136K
Policies (Policy)
72: R32 Business And Summary Of Significant Accounting HTML 65K
Policies (Tables)
34: R33 Acquisitions and Dispositions (Tables) HTML 138K
127: R34 Discontinued Operation (Tables) HTML 76K
86: R35 Property, Plant And Equipment (Tables) HTML 60K
89: R36 Goodwill And Other Intangible Assets (Tables) HTML 171K
53: R37 Debt (Tables) HTML 80K
148: R38 Equity (Tables) HTML 87K
22: R39 Income Taxes (Tables) HTML 156K
75: R40 Earnings Per Share (Tables) HTML 112K
135: R41 Derivative Financial Instruments (Tables) HTML 197K
50: R42 Fair Value Measurements (Tables) HTML 215K
63: R43 Stock-Based Compensation (Tables) HTML 116K
68: R44 Pensions And Other Postretirement Benefits HTML 459K
(Tables)
79: R45 Comprehensive Income (Loss) (Tables) HTML 135K
33: R46 Segment Reporting (Tables) HTML 165K
58: R47 Supplemental Cash Flow Information (Tables) HTML 53K
25: R48 Commitments And Contingencies (Tables) HTML 60K
133: R49 Quarterly Financial Data (Unaudited) (Tables) HTML 160K
49: R50 Condensed Consolidating Financial Statements HTML 709K
(Tables)
128: R51 Business And Summary Of Significant Accounting HTML 55K
Policies (Schedule Of Inventories Of Processed
Products, Livestock, And Supplies Valued At Lower
Of Cost Or Market) (Details)
54: R52 Business And Summary Of Significant Accounting HTML 52K
Policies Business and Summary of Significant
Accounting Policies (Other Current Liabilities)
(Details)
76: R53 Business And Summary Of Significant Accounting HTML 65K
Policies (Narrative) (Details)
24: R54 Acquisitions and Dispositions Preliminary Fair HTML 82K
Value of Assets Acquired and Liabilities Assumed
at Acquisition Date (Details)
30: R55 Acquisitions and Dispositions Schedule of HTML 56K
Intangible Assets Acquired as Part of Business
Combination (Details)
67: R56 Acquisitions and Dispositions Acquisitions Pro HTML 50K
Forma Information (Details)
39: R57 Acquisitions and Dispositions Summary of Net HTML 77K
Assets Held for Sale (Details)
140: R58 Acquisitions (Narrative) (Details) HTML 78K
84: R59 Dispositions (Narrative) (Details) HTML 77K
115: R60 Discontinued Operation (Summary of Discontinued HTML 59K
Operation's Results) (Details)
57: R61 Discontinued Operation (Narrative) (Details) HTML 46K
61: R62 Property, Plant And Equipment (Details) HTML 58K
125: R63 Goodwill And Other Intangible Assets (Goodwill HTML 83K
Activity) (Details)
120: R64 Goodwill And Other Intangible Assets (Other HTML 59K
Intangible Assets By Type) (Details)
87: R65 Goodwill And Other Intangible Assets (Narrative) HTML 62K
(Details)
123: R66 Debt (Major Components Of Debt) (Details) HTML 97K
55: R67 Debt (Narrative) (Details) HTML 155K
93: R68 Equity (Schedule of Share Repurchases) (Details) HTML 51K
143: R69 Equity (Schedule of Tangible Equity Units) HTML 66K
(Details)
28: R70 Equity (Narrative) (Details) HTML 143K
47: R71 Income Taxes (Provision For Income Taxes From HTML 63K
Continuing Operations) (Details)
77: R72 Income Taxes (Reasons For Differences Between HTML 65K
Statutory Federal Tax Rate And Effective Income
Tax Rate) (Details)
37: R73 Income Taxes (Tax Effects Of Major Items Recorded HTML 94K
As Deferred Tax Assets And Liabilities) (Details)
147: R74 Income Taxes (Activity Related To Gross HTML 61K
Unrecognized Tax Benefits) (Details)
51: R75 Income Taxes (Narrative) (Details) HTML 84K
41: R76 Other Income And Charges (Details) HTML 59K
45: R77 Earnings Per Share (Schedule Of Earnings Per HTML 107K
Share, Basic And Diluted) (Details)
31: R78 Earnings Per Share (Narrative) (Details) HTML 55K
35: R79 Derivative Financial Instruments (Aggregate HTML 48K
Outstanding Notionals Related To Cash Flow Hedges)
(Details)
106: R80 Derivative Financial Instruments (Pretax Impact Of HTML 53K
Cash Flow Hedge Derivative Instruments On The
Consolidated Statements Of Income) (Details)
43: R81 Derivative Financial Instruments (Aggregate HTML 46K
Outstanding Notionals Related To Fair Value
Hedges) (Details)
141: R82 Derivative Financial Instruments (Pretax Impact Of HTML 47K
Fair Value Hedge Derivative Instruments On The
Consolidated Statements of Income) (Details)
73: R83 Derivative Financial Instruments (Aggregate HTML 51K
Outstanding Notionals Related To Undesignated
Positions) (Details)
113: R84 Derivative Financial Instruments (Pretax Impact Of HTML 49K
Undesignated Derivative Instruments On The
Consolidated Statements Of Income) (Details)
122: R85 Derivative Financial Instruments (Fair Value Of HTML 57K
All Derivative Instruments) (Details)
42: R86 Derivative Financial Instruments (Narrative) HTML 49K
(Details)
44: R87 Fair Value Measurements (Schedule Of Assets And HTML 104K
Liabilities Measured At Fair Value On A Recurring
Basis) (Details)
138: R88 Fair Value Measurements (Schedule Of Debt HTML 62K
Securities Measured At Fair Value On A Recurring
Basis, Unobservable Input Reconciliation)
(Details)
38: R89 Fair Value Measurements (Schedule Of Available For HTML 58K
Sale Securities) (Details)
107: R90 Fair Value Measurements (Schedule Of Fair Value HTML 48K
And Carrying Value Of Debt) (Details)
100: R91 Fair Value Measurements Fair Value Measurements HTML 59K
(Narrative) (Details)
126: R92 Stock-Based Compensation (Summary Of Stock HTML 80K
Options) (Details)
99: R93 Stock-Based Compensation (Assumption Of Fair Value HTML 54K
Calculation Of Each Year's Grants) (Details)
83: R94 Stock-Based Compensation (Summary Of Restricted HTML 77K
Stock) (Details)
132: R95 Stock-Based Compensation (Summary of HTML 68K
Performance-Based Shares) (Details)
80: R96 Stock-Based Compensation (Narrative) (Details) HTML 98K
52: R97 Pensions And Other Postretirement Benefits HTML 99K
(Reconciliation Of Changes In Plans' Benefit
Obligations, Assets And Funded Status) (Details)
90: R98 Pensions And Other Postretirement Benefits HTML 65K
(Amounts Recognized In The Consolidated Balance
Sheets) (Details)
85: R99 Pensions And Other Postretirement Benefits (Plans HTML 54K
With Accumulated Benefit Obligations In Excess Of
Plan Assets) (Details)
66: R100 Pensions And Other Postretirement Benefits HTML 66K
(Components Of Net Periodic Benefit Cost For
Pension And Postretirement Benefit Plans
Recognized In The Consolidated Statements Of
Income) (Details)
150: R101 Pensions And Other Postretirement Benefits HTML 57K
(Weighted Average Assumptions) (Details)
124: R102 Pensions And Other Postretirement Benefits (Health HTML 53K
Care Cost Trend Rates) (Details)
98: R103 Pensions And Other Postretirement Benefits (Actual HTML 57K
And Target Asset Allocation For Pension Plan
Assets) (Details)
32: R104 Pensions And Other Postretirement Benefits HTML 99K
(Categories Of Pension Plan Assets And Level Under
Which Fair Values Were Determined In Fair Value
Hierarchy) (Details)
134: R105 Pensions And Other Postretirement Benefits HTML 62K
(Reconciliation Of Change In Fair Value
Measurement Of Defined Benefit Plans' Consolidated
Assets Using Significant Unobservable Inputs)
(Details)
142: R106 Pensions And Other Postretirement Benefits HTML 62K
(Estimated Future Benefit Payments Expected To Be
Paid) (Details)
136: R107 Pensions And Other Postretirement Benefits HTML 47K
(Multiemployer Plans) (Details)
94: R108 Pensions And Other Postretirement Benefits HTML 95K
(Narrative) (Details)
40: R109 Comprehensive Income (Loss) (Components Of HTML 64K
Accumulated Other Comprehensive Income (Loss))
(Details)
116: R110 Comprehensive Income (Loss) (Components Of Other HTML 78K
Comprehensive Income (Loss)) (Details)
56: R111 Segment Reporting (Segment Reporting Information, HTML 99K
By Segment) (Details)
23: R112 Segment Reporting (Narrative) (Details) HTML 92K
81: R113 Supplemental Cash Flow Information (Cash Payments HTML 47K
For Interest And Income Taxes) (Details)
74: R114 Transactions With Related Parties (Details) HTML 73K
130: R115 Commitments (Minimum Lease Commitments Under HTML 62K
Non-Cancelable Leases) (Details)
60: R116 Commitments (Future Purchase Commitments) HTML 60K
(Details)
146: R117 Commitments (Narrative) (Details) HTML 64K
36: R118 Contingencies (Narrative) (Details) HTML 61K
102: R119 Quarterly Financial Data (Unaudited) (Schedule Of HTML 97K
Quarterly Financial Information) (Details)
121: R120 Quarterly Financial Data (Unaudited) (Narrative) HTML 72K
(Details)
26: R121 Condensed Consolidating Financial Statements HTML 169K
(Condensed Consolidating Statement Of Income)
(Details)
101: R122 Condensed Consolidating Financial Statements HTML 161K
(Condensed Consolidating Balance Sheet) (Details)
91: R123 Condensed Consolidating Financial Statements HTML 138K
(Condensed Consolidating Statement Of Cash Flows)
(Details)
29: R124 Condensed Consolidating Financial Statements HTML 45K
(Narrative) (Details)
104: R125 Valuation And Qualifying Accounts (Details) HTML 59K
145: XML IDEA XML File -- Filing Summary XML 236K
27: EXCEL IDEA Workbook of Financial Reports XLSX 628K
62: EXCEL IDEA Workbook of Financial Reports (.xls) XLS 6.35M
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‘EX-10.20’ — Employment Agreement, Dated August 29, 2014, by and Between Sally Grimes
This Employment Agreement (the “Agreement”), effective the 29th day of August, 2014 (the “Effective Date”), by and between Tyson Foods, Inc., a Delaware corporation, and any of its subsidiaries and affiliates (hereinafter collectively referred to as “Tyson”), and Sobhana (Sally) Grimes (hereinafter referred to as “you”).
WITNESSETH:
WHEREAS, Tyson is engaged in a very competitive business, where the development
and retention of extensive confidential information, trade secrets and proprietary information as well as customer relationships and goodwill are critical to future business success; and
WHEREAS, by virtue of your employment with Tyson, you are involved in the development of, and have access to, Tyson’s confidential information, trade secrets and proprietary information, and, if such information were to get into the hands of competitors of Tyson, it could do substantial business harm to Tyson; and
WHEREAS, you will not be provided with or given access to Tyson’s customers and goodwill or Tyson’s confidential information, trade secrets and proprietary information unless you execute this Agreement; and
WHEREAS, Tyson has advised you 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 you acknowledge the importance of the non-compete and non-solicitation sections, and having reviewed the Agreement as a whole, are willing to commit to the restrictions set forth herein;
NOW, THEREFORE, Tyson and you hereby mutually agree as follows:
1.Employment.
(a) Consideration. In consideration of the above and other good and valuable consideration, you are expressly being given employment, continued employment, a relationship with Tyson, certain monies, benefits, severance, stock awards, training and/or access to trade secrets and confidential information of Tyson and its customers, suppliers, vendors or affiliates to which you
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would
not have access but for your relationship with Tyson in exchange for you agreeing to the terms of this Agreement.
(b) Duties. Tyson hereby agrees to employ you and you hereby accept employment with Tyson. The duties and services required to be performed by you shall be consistent with your position, as assigned by Tyson in its sole discretion from time to time, and shall be consistent with the level and responsibility of the duties and services performed by other employees in your band (“Band”). At Tyson’s sole discretion, both your position and Band are subject to change during your term of employment. You agree to devote substantially all of your working time, attention and energies to the business of Tyson. You may make and manage personal investments (provided such investments in other activities do not violate, in any material respect,
the provisions of Section 6 of this Agreement), be involved in charitable and professional activities, and, with the prior written consent of Tyson’s General Counsel or Chief Human Resources Officer, serve on boards of other for profit entities, provided such activities do not materially interfere with the performance of your duties hereunder. You agree that during your employment with Tyson, you will not engage in any (i) competitive outside business activities, (ii) outside business that provides goods or services to Tyson, or (iii) outside business that buys products from Tyson, other than with Tyson’s prior written approval. You will devote your best efforts to the performance of your duties and the advancement of Tyson and shall not engage in any other employment, profitable activities, or other pursuits which would cause you to disclose or utilize Confidential Information (as defined in Section 6(a)), or reflect adversely on Tyson. This obligation shall include,
but is not limited to, obtaining Tyson’s consent prior to performing tasks for business associates of Tyson outside of your customary duties for Tyson, giving speeches or writing articles, blogs, or posts, about Tyson’s business, improperly using Tyson’s name or identifying your association or position with Tyson in a manner that reflects unfavorably upon Tyson. You further agree that you will not use, incorporate, or otherwise create any business entity or organization or domain name using any name confusingly similar to the name of Tyson or the name of any affiliate of Tyson or any other name under which any such entities do business.
(c) Term of Employment. Your employment under this Agreement will commence on the Effective Date above and end on the date your employment terminates pursuant to Section 3 (the “Period of Employment”).
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2. Compensation.
(a) Initial Consideration. You shall receive, in addition to all regular compensation for services as described in this Section 2 and the severance and benefits provided under Section 4 and Section 5, $115,522.00 as additional consideration for signing this Agreement and for agreeing to abide and be bound by the terms, provisions and restrictions of Section 6. You understand and acknowledge that you have been properly and timely informed of the type, amount and terms of such consideration and that you would not be entitled to such consideration, and that such consideration would not be paid, if you did not execute and agree to be bound by the provisions of this Agreement.
(b) Base Salary. For
the services to be performed hereunder during the Period of Employment, Tyson shall pay you at a base salary of $582,400.00, which may be adjusted by Tyson from time to time within the range paid to other employees in your Band. Such base salary shall be paid in accordance with Tyson’s payroll practice.
(c) Performance Incentive Eligibility. You may receive performance incentive awards under Tyson’s annual and long-term incentive plans then in effect (if any), on terms and in amounts consistent with those provided to other employees in your Band, subject to the discretion of the senior management of Tyson.
(d) Stock Grants. You may receive stock awards under an equity incentive compensation plan
of Tyson then in effect (if any), on terms and in amounts consistent with those provided to other employees in your Band, subject to the discretion of the senior management of Tyson.
(e) Benefit Plans, Vacation and Reimbursement Programs. You shall be entitled to participate in any benefit plans of Tyson as adopted or amended from time to time on terms and in amounts consistent with those generally applicable to other employees in your Band. You will be entitled to an annual paid vacation in accordance with Tyson’s applicable vacation policy, as in effect from time to time. Tyson will pay or reimburse you for all reasonable expenses actually incurred or paid by you in the performance of your services to Tyson, subject to and in accordance with applicable expense reimbursement and related policies and procedures as in effect from time to time.
(f) Review. Base
salary, performance incentive compensation, stock grant levels, and plan participation will be subject to review annually (or from time to time at Tyson’s discretion),
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when compensation of other officers and managers of Tyson are reviewed for consideration of adjustments thereof.
3. Termination. Upon any termination of your employment for any reason, you shall immediately resign from all boards, offices and other positions with Tyson or from any board or committee of an association or industry group where you represent Tyson. The date upon which your
employment terminates and the Period of Employment ends will be your “Termination Date” for all purposes of this Agreement. Your employment may be terminated under this Agreement in the following events:
(a) Death. Your employment hereunder will terminate upon your death.
(b) Disability. Your employment hereunder will terminate upon your “Disability”. For purposes of this Agreement, Disability has the same meaning as provided in the long-term disability plan or policy maintained or, if applicable, most recently maintained, by Tyson. If no long-term disability plan or policy was ever maintained on behalf of you or, if the determination of Disability relates to an incentive stock option, Disability means that condition described
in Section 22(e)(3) of the Internal Revenue Code (the “Code”), as amended from time to time. In the event of a dispute, the determination of Disability will be made by the Committee (as defined in Tyson’s equity incentive plan) and will be supported by advice of a physician competent in the area to which such Disability relates.
(c) Termination by You for Good Reason. Upon the occurrence of a “Good Reason” event, you may terminate your employment pursuant to this Agreement by providing a notice of termination for Good Reason to Tyson within no more than seven (7) days of the Good Reason event and providing Tyson thirty (30) days following receipt of such notice to cure the Good Reason event. If Tyson cures the Good Reason event within such 30 day period, you may not terminate your employment for Good Reason, but may voluntarily resign pursuant
to Section 3(d) below. If Tyson fails to cure the Good Reason event within such 30 day period, your termination of employment will be effective under this Section 3(c). For purposes of the Agreement, you will be treated as having terminated for “Good Reason” if you terminate employment after having been demoted to a less senior Band than that in which you were employed when executing this Agreement or to a position not covered by a Band, which Tyson does not cure by restoring you to your former Band.
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(d) Voluntary Termination by You without Good Reason. You may terminate your employment
pursuant to this Agreement at any time by not less than thirty (30) days prior written notice to Tyson, which notice period may be waived by Tyson. Upon receipt of such notice, Tyson shall have the right, at its sole discretion, to accelerate your Termination Date at any time during said notice period.
(e) Termination for Cause by Tyson. Tyson may terminate your employment hereunder for “Cause” at any time after providing a notice of termination for Cause to you. For purposes of this Agreement, you shall be treated as having been terminated for Cause if and only if you are terminated as a result of the occurrence of one or more of the following events:
(i)
any
willful and wrongful conduct or omission by you that injures Tyson;
(ii)
any act by you of intentional misrepresentation or embezzlement, misappropriation or conversion of assets of Tyson;
(iii)
you are convicted of, confess to, plead no contest to, or become the subject of proceedings that provide a reasonable basis for Tyson to believe that you have been engaged in a felony; or
(iv)
your
intentional or willful violation of any restrictive covenant provided for under Section 6 of this Agreement or any other agreement to which you are a party.
For purposes of this Agreement an act or failure to act shall be considered “willful” only if done or omitted to be done without your good faith reasonable belief that such act or failure to act was in the best interests of Tyson. In no event shall Tyson’s failure to notify you of the occurrence of any event constituting Cause, or to terminate you as a result of such event, be construed as a consent to the occurrence of future events, whether or not similar to the initial occurrence, or a waiver of Tyson’s right to terminate you for Cause as a result thereof.
(f) Termination by Tyson without Cause. Tyson may terminate your employment
hereunder without Cause at any time upon notice to you.
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4. Compensation Following Termination of Employment. In the event that your employment hereunder is terminated in a manner as set forth in Section 3 above, you shall be entitled to the compensation and benefits provided under this Section 4.
(a) Termination Due to Death, Disability, Voluntary Termination without Good Reason or Termination for Cause by Tyson. In the event that your employment is terminated by reason of death,
Disability, voluntary termination by you without Good Reason or for Cause by Tyson, Tyson shall pay the following amounts to you or your estate:
(i)
Any accrued but unpaid base salary for services rendered to the Termination Date, any accrued but unpaid expenses required to be reimbursed under this Agreement, and any vacation accrued to the Termination Date (“Accrued Compensation”); and
(ii)
Any benefits accrued through the date of termination to which you may be entitled pursuant to the plans, policies and arrangements, as determined and paid
in accordance with the terms of such plans, policies and arrangements (“Plan Benefits”).
(b) Termination by Tyson without Cause or by you for Good Reason. In the event that your employment is terminated by Tyson for reasons other than death, Disability or Cause, or by you for Good Reason, Tyson shall pay the following amounts to you:
(i)
Accrued Compensation;
(ii)
Plan Benefits;
(iii)
Subject
to your execution of the Release (as defined below), you will become vested in a pro rata portion of any of your unvested restricted stock awards that are outstanding on your Termination Date provided the applicable performance criteria, if any, are met. Such pro rata portion shall be equal to the percentage of the total vesting period, measured in days, in which you remained employed by Tyson multiplied by the number of shares subject to the award. Any award subject to this subsection (iii) shall not be paid until such time as it
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would otherwise have been paid if under the terms of the award it was subject to performance criteria and will only
be paid if any applicable performance criteria are met;
(iv)
Subject to your execution of the Release (as defined below), you will become fully vested in any of your unvested stock options that are outstanding on the Termination Date; and
(v)
Subject to your execution of the Release (as defined below), you will become entitled to a pro rata portion of any performance share awards that are outstanding on the Termination Date provided the applicable performance criteria is met. The pro rata portion of your award shall equal the percentage of the
total performance period, measured in days, in which you remained employed by Tyson multiplied by the percentage of the award that you would have received had you remained employed for the entire performance period. Any award subject to this subsection (v) shall not be paid until such time as it would have otherwise been paid under the terms of the award and will only be paid if the performance criteria are met.
(vi)
Subject to your execution of the Release (as defined below), an amount equal to, and on terms equal to, the severance payments and severance benefits provided to other employees within your Band, as determined under the Tyson Foods Severance Pay Plan for Contracted Employees. In the event of a Change of Control (defined below) the amount
you would be entitled to in the event of termination subject to this Section 4(b) will be based on the Tyson Foods Severance Pay Plan for Contracted Employees in place at the time immediately prior to the Change of Control.
(c) Release. For purposes of this Agreement, “Release” means that specific document which Tyson shall present to you for consideration and execution after your termination of employment, under which you agree to irrevocably and unconditionally release and forever discharge Tyson, its subsidiaries, affiliates and related parties from any and all causes of action which
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you
at that time had or may have had against Tyson (excluding any claim for indemnity under this Agreement, or any claim under state workers’ compensation or unemployment laws). The Release will be provided to you as soon as practical after your Termination Date, but in any event in sufficient time so that you will have adequate time to review the Release as provided by applicable law. The Release must be signed within twenty-one (21) days of its presentation to you (or within forty-five (45) days if you are terminated as part of a group termination). The Release shall not become effective until seven (7) days after it is executed. Tyson maintains a form of Release, which it may change from time to time as it deems appropriate. The latest version of the Release shall be available for your review upon request. Subject to the payment provisions of the Tyson Foods Severance Pay Plan for Contracted Employees and Section 8 below, any payments subject to a Release shall commence
on the first payroll period commencing on or after the date the Release becomes effective.
5. Acceleration of Stock Grants on Change in Control. Upon the occurrence of a Change in Control (defined below) the stock awards that have been granted to you pursuant to award agreements from Tyson under Section 2, or which have otherwise been previously granted to you under an award agreement from Tyson; and which awards remain outstanding at the time of the Change in Control, will be treated in accordance with the applicable award agreements. For purposes of this Agreement, the term “Change in Control” shall have the same meaning as set forth in Tyson’s equity incentive compensation plan then in effect; provided, however, that a Change in Control shall not include any event as a result of which one or more of the following persons or entities possess
or continues to possess, immediately after such event, over fifty percent (50%) of the combined voting power of the Company or, if applicable, a successor entity: (a) Tyson Limited Partnership, or any successor entity; (b) individuals related to the late Donald John Tyson by blood, marriage or adoption, or the estate of any such individual (including Donald John Tyson’s); or (c) any entity (including, but not limited to, a partnership, corporation, trust or limited liability company) in which one or more of the entities, individuals or estates described in clauses (a) and (b) hereof possess over fifty percent (50%) of the combined voting power or beneficial interests of such entity. Notwithstanding the foregoing, this Section 5 shall not affect the time or form of payment under an applicable award agreement, and all awards shall be paid at the time, and in the form, provided under the
terms of such award agreement. The Committee (as defined in Tyson’s equity incentive plan) shall have the sole discretion to interpret the foregoing provisions of this paragraph.
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6. Restrictive Covenants and Other Restrictions.
(a) Confidential Information. You acknowledge that during the course of your employment with Tyson, you will be provided, learn, develop and have access to Tyson’s trade secrets, confidential information and proprietary materials which may include, but are
not limited to, the following: strategies, methods, books, records, and documents; technical information concerning products, formulas, production, distribution, equipment, services, and processes; procurement procedures and pricing techniques; the names of and other information concerning customers, suppliers, vendors, investors, and other business affiliates (such as contact name, service provided, pricing, type and amount of services used, credit and financial data, and/or other information relating to Tyson’s relationship with that business affiliate); pricing strategies and price curves; positions, plans, and strategies for expansion or acquisitions; budgets; customer lists; research; weather data; financial analysis, returns and reports and sales data; trading methodologies and terms; evaluations, opinions, and interpretations of information and data; marketing and merchandising techniques; prospective customers’ names and marks; grids and maps; electronic databases;
models; specifications; computer programs; internal business records; contracts benefiting or obligating Tyson; bids or proposals submitted to any third party; technologies and methods; training methods and training processes; organizational structure; personnel information, including salaries of personnel; payment amounts or rates paid to consultants or other service providers; and other information, whether tangible or intangible, in any form or medium provided (collectively, “Confidential Information”) which is not generally available to the public and which has been developed, will be developed or acquired by Tyson at considerable effort and expense. Without limiting the foregoing, you acknowledge and agree that you will learn, be provided, develop and have access to certain techniques, methods or applications implemented or developed by Tyson which are not generally
known to the public or within the community in which Tyson competes, and any and all such information shall be treated as Confidential Information.
During the term of this Agreement or at any time thereafter, unless otherwise specifically authorized in writing by Tyson, you hereby covenant and agree: (i) to hold Confidential Information in the strictest confidence; (ii) not to, directly or indirectly, disclose, divulge or reveal any Confidential Information to any person or entity other than as authorized by Tyson; (iii) to use such Confidential Information only within the scope of your employment with Tyson for the benefit of Tyson; and (iv) to take such protective measures as may be reasonably necessary to preserve the secrecy and interest
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of
Tyson in the Confidential Information. You agree to immediately notify Tyson of any unauthorized disclosure or use of any Confidential Information of which you become aware. The confidentiality obligations herein shall not prohibit you from revealing evidence of criminal wrongdoing to legitimate law enforcement officials or Confidential Information by order of court or agency of competent jurisdiction or as otherwise required by law; however, you shall promptly inform Tyson of any such situations and shall take reasonable steps to prevent disclosure of Confidential Information until Tyson has been informed of such required disclosure and has had a reasonable opportunity first to seek a protective order.
(b) Creative Works. “Creative Works” include, but are not limited to, all original works of authorship, inventions, discoveries, designs, computer
hardware and software, algorithms, programming, scripts, applets, databases, database structures, or other proprietary information, business ideas, and related improvements and devices, which are conceived, developed, or made by you, either alone or with others, in whole or in part, on or off Tyson’s premises, (i) during your employment with Tyson, (ii) with the use of the time, materials, or facilities of Tyson, (iii) relating to any product, service, or activity of Tyson of which you have knowledge, or (iv) suggested by or resulting from any work performed by you for Tyson. Creative Works do not include inventions or other works developed by you entirely on your own time without using Tyson’s equipment, supplies, facilities, or trade secret information except for those inventions or works developed during your Period of Employment that either: (a) relate at the time of conception or reduction to practice of the invention to Tyson’s business, or actual or demonstrably
anticipated research or development of Tyson; or (b) result from any work performed by you for Tyson. If you are or become a resident of any state during your employment that has enacted laws relating to ownership of works created without use of or reference to Tyson materials, facilities, and/or intellectual property and do not relate to Tyson’s business, this Section shall be limited solely to the extent provided by the applicable laws of such states.
To the extent any rights in the Creative Works are not already owned by Tyson, you irrevocably assign and transfer to Tyson all proprietary rights, including, but not limited to, all patent, copyright, trade secret, trademark, and publicity rights, in the Creative Works and agree that Tyson will be the sole and exclusive owner of all right, title, and interest in the Creative Works. Tyson will have the right to use all Creative Works, whether original or derivative, in any
manner whatsoever and in any
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medium now known or later developed. You agree not, at any time, to assert any claim, ownership, or other interest in any of the Creative Works or Confidential Information.
Both during and after your employment, you agree to execute any documents necessary to effectuate the assignment to Tyson of the Creative Works, and will execute all papers and perform any other lawful acts reasonably requested by Tyson for the preparation, prosecution, procurement, and maintenance of any trademark, copyright, and/or patent rights in and for the Creative Works. You further agree that you will not be entitled
to any compensation in addition to the salary paid to you during the development of the Creative Works. In the event Tyson is unable for any reason to secure your signature to any document Tyson reasonably requests you to execute under this Section 6, you hereby irrevocably designate and appoint Tyson and its authorized officers and agents as your agents and attorneys-in-fact to act for and in your behalf and instead of you to execute such document with the same legal force and effect as if executed by you.
(c) No Restrictions on Employment. You are being employed or continuing to be employed by Tyson with the understanding that (i) you are free to enter into employment or continued employment with Tyson, (ii) your employment with Tyson will not violate any agreement you may have with a third party (e.g., existing employment, non-compete, intellectual
property ownership, and/or non-disclosure agreements) and (iii) only Tyson is entitled to the benefit of your work. If you have any agreements with a prior employer, you are required to provide such agreements to Tyson prior to executing this Agreement. Tyson has no interest in using any other person’s patents, copyrights, trade secrets, or trademarks in an unlawful manner. You should be careful not to disclose to Tyson any intellectual property or confidential information of your prior employers or anyone else or misapply proprietary rights that Tyson has no right to use and you further represent and warrant that you have either already returned or have coordinated the return of all such information to any prior employer.
(d) Removal and Return of Tyson Property. All written materials, records, data, and other documents prepared or possessed by you
during your employment with Tyson are Tyson’s property. All memoranda, notes, records, files, correspondence, drawings, manuals, models, specifications, computer programs, maps, and all other documents, data, or materials of any type embodying such information, ideas, concepts, improvements, discoveries, and inventions are Tyson’s property. You agree not to remove any property of Tyson, including, but not limited to, any Confidential Information or Creative Works, from Tyson’s premises, except as authorized under Tyson’s policies
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or with the prior written approval of Tyson’s General Counsel or Chief Human Resources Officer. Unless specifically authorized by Tyson
in writing, you may not place Tyson Confidential Information or Creative Works on Removable Media, as defined below. On Tyson’s request, your acceptance of other employment, or the termination of your employment for any reason, you will immediately return to Tyson all Tyson property, including all Confidential Information and Creative Works and any and all documents and materials that contain, refer to, or relate in any way to any Confidential Information, as well as any other property of Tyson in your possession or control, including all electronic and telephonic equipment, credit cards, security badges, and passwords. You will permit Tyson to inspect any property provided by Tyson to you or developed by you as a result of or in connection with your employment with Tyson when you accept other employment or otherwise separate from your employment, regardless of where the property is located. For purposes of this Section, “Removable Media” means portable or
removable hard disks, floppy disks, USB memory drives, zip disks, optical disks, CDs, DVDs, digital film, memory cards (e.g., Secure Digital (SD), Memory Sticks (MS), CompactFlash (CF), SmartMedia (SM), MultiMediaCard (MMC), and xD-Picture Card (xD)), magnetic tape, and all other removable data storage media.
(e) Non-Competition. You acknowledge that Tyson performs services throughout the United States and that your duties and services impact Tyson’s performance of services throughout the United States. Accordingly, you acknowledge the need for certain restrictions contained in this Agreement to be without limitation as to location or geography within the United States. You agree that during your employment with Tyson, and for a period of 12 months thereafter, you will not directly or indirectly, on behalf of yourself or in conjunction with any other
person, company or entity, own (other than less than 5% ownership in a publicly traded company), manage, operate, or participate in the ownership, management, operation, or control of, or be employed by or a consultant to any person, company or entity which is in competition with Tyson, with which you would hold a position with responsibilities similar to any position you held with Tyson during the 24 months preceding your Termination Date or in which you would utilize or disclose confidential methodologies, techniques, customer lists or information of Tyson. You agree that during your employment with Tyson and for a period of 12 months thereafter you will not directly or indirectly, on behalf of you or any other person, company or entity, participate in the planning, research or development of any strategies or methodologies, similar to strategies or methodologies, utilized or developed by Tyson, excluding general industry knowledge, for which you had access to, utilized
or developed during the 36 months preceding your Termination Date. You agree that nothing in this Section shall limit your confidentiality
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obligations in this Agreement. Further, you understand and agree that during your employment and the restricted time periods thereafter designated in this Agreement, while you may gather information to investigate other employment opportunities, you shall not make plans or prepare to compete, solicit or take on activities which are in violation of this Agreement. Should you leave Tyson and accept employment or a consulting position with a competitor, you are required beforehand to inform Tyson of the identity of your new
employer and your responsibilities for the new employer. You are also required to show this Agreement to all new employers prior to accepting new employment and Tyson shall also be permitted to show this Agreement to all new employers as well.
(f) Non-Solicitation. You agree that during your employment with Tyson and for a period of 36 months thereafter, you will not, nor will you assist any third party to, directly or indirectly (i) raid, hire, solicit, encourage or attempt to persuade any employee or independent contractor of Tyson, or any person who was an employee or independent contractor of Tyson during the 6 months preceding the Termination Date, who possesses or had access to Confidential Information of Tyson, to leave the employ of or terminate a relationship with Tyson; (ii) interfere with the performance by any such persons of their duties for
Tyson; (iii) communicate with any such persons for the purposes described in the paragraph above; or (iv) solicit, encourage or attempt to persuade any customer or vendor of Tyson during the 6 months preceding your Termination Date to terminate or modify its relationship with Tyson.
(g) Non-Disparagement. You agree that you shall not at any time engage in any form of conduct, or make any statement or representation, either oral or written, that disparages, impugns or otherwise impairs the reputation, goodwill or interests of Tyson, or any of its officers, directors, shareholders, managing members, representatives, and/or employees or agents in either the individual or representative capacities of any of the foregoing individuals (including, without limitation, the repetition or distribution of derogatory rumors, allegations, negative reports or comments).
Nor shall you direct, arrange or encourage others to make any such derogatory or disparaging statements on your behalf. Nothing in this Section, however, shall prevent you from providing truthful testimony or information in any proceeding or in response to any request from any governmental agency, or judicial, arbitral or self-regulatory forum.
(h) Effect of Breach. You acknowledge and agree that, in the event of any breach by you of the terms and conditions of this Agreement, pursuant to the terms of certain benefit plans and programs, your accrued benefits thereunder may be discontinued or forfeited, in addition to any
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other
rights and remedies Tyson may have at law or in equity. You acknowledge that irreparable damage would result to Tyson if the provisions of this Agreement are not specifically enforced, and that, in addition to any other legal or equitable relief available, and notwithstanding any alternative dispute resolution provisions that have been or may be agreed to between Tyson and you, Tyson shall be entitled to injunctive relief in the event of any failure to comply with the provisions of this Agreement. If you violate any of the terms of this Agreement, you will indemnify Tyson for the expenses, including but not limited to reasonable attorneys’ fees, incurred by Tyson in enforcing this Agreement.
(i) Clawback Policies. In addition to subsection (h) above, any amounts payable under this Agreement are subject to any policy, whether in existence as of the Effective
Date or later adopted, established by Tyson that provides for the clawback or recovery of amounts that were paid to you under circumstances requiring clawback or recovery as set forth in such policy. Tyson will make any determinations for clawback or recover in its sole discretion and in accordance with any applicable law or regulation. Further, notwithstanding any other provisions of this Agreement, if within one year of the termination of your employment, Tyson becomes aware of facts that would have allowed Tyson to terminate your employment for Cause (within the meaning of Section 3), then, to the extent permitted by law:
(i)
Tyson may elect to cancel any and all payments of benefits otherwise due to you, but not yet paid, under this Agreement or otherwise; and
(ii)
you
will refund to Tyson any amounts, plus interest, previously paid by Tyson to you in excess of your Accrued Compensation and Plan Benefits (within the meaning of Section 4).
7. General.
(a) Enforcement and Severability. You specifically acknowledge and agree that the purpose of the restrictions contained in this Agreement is to protect Tyson from unfair competition, including improper use of the Confidential Information by you, and that the restrictions and covenants contained herein are reasonable with respect to both scope and duration of application. Notwithstanding the foregoing, if any court determines that any of the terms herein are unreasonable, invalid or unenforceable, the court may interpret, alter, amend or
modify any or all of the terms to
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include as much of the scope, time period and intent as will render the restrictions enforceable, and then as modified, enforce the terms. Each covenant and restriction contained in this Agreement is independent of each other such covenant and restriction, and if any such covenant or restriction is held for any reason to be invalid, unenforceable and incapable of corrective modification, then the invalidity or unenforceability of such covenant or restriction shall not invalidate, affect or impair in any way the validity and enforceability of any other such covenant or restriction.
(b) Notices. All
written notices, requests and other communications provided pursuant to this Agreement shall be deemed to have been duly given, if delivered in person or by courier, or by facsimile transmission or sent by express, registered or certified mail, postage prepaid addressed, if to you, at the most recent address on record in Tyson’s human resources information system, and if to Tyson, at its headquarters:
(c) Modification. This
Agreement contains all the terms and conditions agreed upon by the parties hereto, and no other agreements, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or bind either of the parties hereto, except for any pre-employment confidentiality agreement that may exist between the parties or any agreement or policy specifically referenced herein. This Agreement cannot be modified except by a writing signed by both parties.
(d) Assignment. This Agreement shall be binding upon you, your heirs, executors and personal representatives and upon Tyson, its successors and assigns. You acknowledge that the services to be rendered by you are unique and personal. You may not assign, transfer or pledge your rights or delegate your duties or obligations under this Agreement, in whole or in part, without first obtaining the written
consent of Tyson’s General Counsel or Chief Human Resources Officer.
(e) Applicable Law. You acknowledge that this Agreement is performable at various locations throughout the United States and specifically performable wholly or partly within the State of Arkansas and consent to the validity, interpretation, performance and enforcement of this Agreement being governed by the internal laws of said State of Arkansas, without giving effect to the conflicts of laws provisions thereof.
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(f) Jurisdiction and
Venue of Disputes. The courts of Washington County, Arkansas shall have exclusive jurisdiction and be the venue of all disputes between Tyson and you, whether such disputes arise from this Agreement or otherwise. In addition, you expressly waive any right that you may have to sue or be sued in the county of your residence and consent to venue in Washington County, Arkansas.
(g) Funding. All payments provided under this Agreement, other than payments made pursuant to a plan which provides otherwise, shall be paid from the general funds of Tyson, and no special or separate fund shall be established, and no other segregation of assets made, to assure payment. You shall have no right, title or interest whatever in or to any investments which Tyson may make to aid Tyson in meeting its obligations hereunder. To the extent that any person
acquires a right to receive payments from Tyson hereunder, such right shall be no greater than the right of an unsecured creditor of Tyson.
8. Special Tax Considerations.
(a) Tax Withholding. Tyson shall provide for the withholding of any taxes required to be withheld by federal, state and local law with respect to any payments in cash and/or other property made by or on behalf of Tyson to or for your benefit under this Agreement or otherwise.
(b) Excise Tax. Notwithstanding the foregoing, if the total payments to be paid to you under this Agreement, along with any other payments to you by Tyson, would result in you being
subject to the excise tax imposed by Section 4999 of the Code (commonly referred to as the “Golden Parachute Tax”), Tyson shall reduce the aggregate payments to the largest amount which can be paid to you without triggering the excise tax, but only if and to the extent that such reduction would result in you retaining larger aggregate after-tax payments. The determination of the excise tax and the aggregate after-tax payments to be received by you will be made by Tyson. If payments are to be reduced, the payments made latest in time will be reduced first and if payments are to be made at the same time, non-cash payments will be reduced before cash payments.
(c) Separation from Service. In the event that the termination of your employment does not constitute a “separation from service” as defined in Code Section 409A, including all regulations
and other guidance issued pursuant thereto, your rights to the payments and benefits described in Section 4 will vest upon the Termination Date, but no payment to you that is subject to
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Code Section 409A will be paid until you incur a separation from service (or until six (6) months after such date if you are a “specified employee” pursuant to subsection (d) of this Section), and any amounts that would otherwise have been paid before such date will be paid instead as soon as practicable after such date.
(d) Six-Month Delay in Payment. Notwithstanding
anything to the contrary in this Agreement, if you are a “specified employee” as defined and applied in Code Section 409A as of your Termination Date, then, to the extent any payment under this Agreement or any Tyson plan or policy constitutes deferred compensation (after taking into account any applicable exemptions from Code Section 409A, including those specified in subsection (f) of this Section) and to the extent required by Code Section 409A, no payments due under this Agreement or any Tyson plan or policy may be made until the earlier of: (i) the first (1st) day following the six (6) month anniversary of your Termination Date and (ii) your date of death; provided, however, that any payments delayed during the six (6) month period will be paid in the aggregate as soon as reasonably practicable following the six (6) month anniversary of your Termination Date.
(e) Expense
Reimbursement. In no event will an expense be reimbursed after December 31 of the calendar year following the calendar year in which the expense was incurred. You are not permitted to receive a payment or other benefit in lieu of reimbursement under Section 2(e).
(f) Application of Exemptions. For purposes of Code Section 409A, each “payment” (as defined by Code Section 409A) made under this Agreement will be considered a “separate payment.” In addition, for purposes of Code Section 409A, each such payment will be deemed exempt from Code Section 409A to the fullest extent possible under (i) the “short-term deferral” exemption of Treasury Regulation § 1.409A-1((b)(4), and (ii) with respect to any additional amounts paid no later than the second (2nd) calendar year following the calendar year containing your
Termination Date, the “involuntary separation” pay exemption of Treasury Regulation § 1.409A-1(b)(9)(iii), which are hereby incorporated by reference.
(g) Effect of Release. Any amounts that are not exempt from Code Section 409A under paragraph (f) above, and which are paid subject to your execution of a Release that provides for a consideration period and revocation period that crosses two calendar years, shall be paid on the
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first payroll date in the second calendar year that occurs on or
after the expiration of the revocation period, regardless of the date the Release is signed.
(h) Interpretation and Administration of Agreement. To the maximum extent permitted by law, this Agreement will be interpreted and administered in such a manner that the payments to you are either exempt from, or comply with, the requirements of Code Section 409A.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the day and year first above written.
YOU
ACKNOWLEDGE THAT YOU HAVE COMPLETELY READ THE ABOVE, HAVE BEEN ADVISED TO CONSIDER THIS AGREEMENT CAREFULLY, AND HAVE BEEN FURTHER ADVISED TO REVIEW IT WITH LEGAL COUNSEL OF YOUR CHOOSING BEFORE SIGNING. YOU FURTHER ACKNOWLEDGE THAT YOU ARE SIGNING THIS AGREEMENT VOLUNTARILY, AND WITHOUT DURESS, COERCION, OR UNDUE INFLUENCE AND THEREBY AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN.
