EXHIBIT 10.14
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CEO EMPLOYMENT AGREEMENT
BETWEEN
U.S. PREMIUM BEEF, LLC
AND
XXXXXX X. XXXX
2003 - 2009
THIS EMPLOYMENT AGREEMENT ("Agreement") dated as of the ____ day of
___________, 2004, is made by and between U.S. Premium Beef, LLC, a Delaware
limited liability company ("USPB"), and Xxxxxx X. Xxxx ("Chief Executive
Officer" or "CEO").
1. EMPLOYMENT.
(a) Term of this Agreement. USPB will employ CEO as the chief executive
officer of USPB under this Agreement contingent upon the termination of the
employment agreement between U.S. Premium Beef, Ltd., a Kansas cooperative
association, and CEO for the term September, 2003 until August 31, 2009 as
provided in paragraph (b). The term of this Agreement is from September 1, 2003
(the "Effective Date") until August 31, 2009 (the "Expiration Date") or the date
the employment is otherwise terminated as provided in this Agreement
("Termination Date"). If the closing of the transaction in paragraph (b), clause
(1) does not occur by December 31, 2004 this Agreement terminates and is null
and void.
(b) Termination of Previous Employment Agreement. USPB and CEO agree to
terminate the employment agreement between U.S. Premium Beef, Ltd., a Kansas
cooperative association and CEO for the term September 1, 2003 until August 31,
2009 (the "Cooperative Employment Agreement") effective as of September 1, 2003,
provided that compensation paid under the Cooperative Employment Agreement shall
be deemed to have been paid under this Agreement, upon the condition of
completion of transactions under which U.S. Premium Beef, Ltd. a Kansas
cooperative association converts its assets and ownership interests into U.S.
Premium Beef, LLC.
2. LOCATION OF EMPLOYMENT. CEO's principal place of employment shall be at the
principal offices of USPB located in Kansas City, Missouri, or at another
location as mutually agreed by USPB and CEO.
3. COMPENSATION. The compensation provided in sections 3(a), 3(b), 3(c) and 3(d)
shall be subject to a cumulative annual cap pro-rated over the term of this
Agreement not to exceed $2,000,000 per year averaged over the term. An example
of the compensation under 3(a), 3(b) 3(c) and 3(d) is provided on Exhibit A.
(a) Annual Salary. CEO shall be paid by USPB a base annual salary of
$550,000 for employment years ending August 31, 2004, August 31, 2005, and
August 31, 2006; and $700,000 for employment years ending August 31, 2007,
August 31, 2008, and August 31, 2009
USPB/XXXXXX X. XXXX CEO EMPLOYMENT AGREEMENT
2003-2009
(less necessary deductions and withholding) for each 12-month period (September
1 to August 31) during the term of CEO's employment under this Agreement,
pro-rated for partial years, payable on USPB's normal payroll dates.
(b) Annual Incentive Plan. In addition to CEO's base Annual Salary CEO
shall, if he is employed by USPB as of the last day of the fiscal year (except
as otherwise provided in this Agreement), be paid an annual incentive bonus,
less necessary deductions and withholding ("Annual Bonus") equal to two percent
(2.0%) of the sum of the total financial benefits to USPB ("USPB Total
Benefits") that exceed $18,000,000. USPB Total Benefits are: (1) audited fiscal
year-end USPB earnings before tax; and (2) two times the fiscal year USPB grid
premiums which is the net sum of all USPB member grid premiums and discounts
calculated through the USPB grid, taking into account all calculators including,
but not limited to, base price, dressing percent, quality grade, outlier cattle
and other specific categories, less the base price calculator excluding any set
base price premium. (Example, if 25 cents per cwt. is paid to a member for one
head of cattle over the western Kansas reported USDA average, then 25 cents per
cwt. times the weight of the head of cattle would be added to the net grid
premium.) This calculation shall be based on the actual cattle delivered by USPB
members to National Beef Packing Company, LLC or its successor under the Cattle
Purchase Agreement unless one of the following two events occur: (1) the member
cattle delivery requirements are reduced below the fiscal year 2004 requirements
of 98% delivery; or (2) the penalties for nondelivery are reduced below fiscal
year 2004 levels. If either member delivery requirements are reduced below 98%
or the penalties for nondelivery are reduced, then the fiscal year grid premiums
under clause (2) above shall be adjusted to reflect the grid premium per head of
cattle actually delivered multiplied times the number of USPB delivery rights
held by members. In no event shall the nondelivery penalties paid by members be
included in the net sum of all USPB member grid premiums under clause (2) above.
The Annual Bonus is subject to the following:
(1) Any Annual Bonus accruing with respect to a fiscal year
shall be payable, less normal withholdings, on or before the date (the
"Annual Bonus Date") that is sixty (60) days following the end of the
fiscal year or, if later, ten (10) days following receipt by the USPB
Board, of all completed financial statements that are relevant to the
calculation of the Annual Bonus.
(2) For purposes of calculating any Annual Bonus under this
Section 3(b), or any Long-Term bonus under Section 3(c), USPB's Total
Benefits shall be determined by USPB's accountants using generally
accepted accounting principles consistently applied.
(c) Long-Term Incentive Plan. In addition to CEO's base Annual Salary
and Annual Bonus, CEO shall, (except as otherwise provided in this Agreement),
if CEO is employed by USPB as of August 31, 2006, be paid a long-term incentive
bonus (referred to as "Long-Term Bonus") calculated as described in clause (1)
below, and if CEO is employed by USPB as of August 31, 2009 be paid an
additional long-term incentive bonus, calculated as described in clause (2)
below:
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USPB/XXXXXX X. XXXX CEO EMPLOYMENT AGREEMENT
2003-2009
(1) the Long-Term Bonus to be paid as a result of CEO's
employment on August 31, 2006 shall be equal to one and one-quarter
percent (1.25%) of the amount by which USPB's Total Benefits from
September 1, 2003 through August 31, 2006, exceed $54,000,000 but are
equal to or less than $84,000,000; plus seventy-five one hundredths of
a percent (0.75%) of the amount by which USPB's Total Benefits from
September 1, 2003 through August 31, 2006 exceed $84,000,000, subject
to clause (3) below; and
(2) the Long-Term Bonus to be paid as a result of CEO's
employment on August 31, 2009 shall be equal to one and one-quarter
percent (1.25%) of the amount by which USPB's Total Benefits from
September 1, 2006 through August 31, 2009, exceed $54,000,000 but are
equal to or less than $84,000,000; plus seventy-five one hundredths of
a percent (0.75%) of the amount by which USPB's Total Benefits from
September 1, 2006 through August 31, 2009 exceed $84,000,000, subject
to clause (3) below; and
(3) any Long-Term Bonus accruing under this Agreement shall be
payable, less necessary deductions and withholding on or before the
date ("Long-Term Bonus Date") that is sixty (60) days following August
31, 2006 or August 31, 2009 respectively, or, if later, ten (10) days
following receipt by USPB's Board of Directors, of all completed
financial statements that are relevant to the calculation of the
applicable Long-Term Bonus.
(d) Full-Term Incentive Plan. In addition to any other payments paid
under this agreement, CEO shall be paid a full-term incentive bonus ("Full-Term
Bonus") in the amount of $550,000 if CEO is employed under this Agreement
through August 31, 2006, and additionally, $700,000 if CEO is employed under
this Agreement through August 31, 2009, except as otherwise provided in this
Agreement. Any Full-Term Bonus accruing under this Agreement shall be payable,
less necessary deductions and withholdings, on or before December 31, 2006 for
employment through August 31, 2006, and on or before December 31, 2009 for
employment through August 31, 2009.
(e) Phantom Units Plan. CEO has vested phantom unit rights to 20,000
phantom Class A Units of USPB with an exercise price of $55 per unit and 20,000
Class B Units of USPB with an exercise price of $0 as provided in this paragraph
(e):
(1) Appreciation Rights. Upon exercise of the phantom units,
CEO shall be paid the amount that the trading price of the units
("Market Unit Price") exceeds (1) for Class A Units $55 per unit times
the number of units exercised not to exceed 20,000 exercisable phantom
Class A Units; and for Class B Units upon notice to USPB without
payment of an exercise price.
(2) Market Unit Price. The "Market Unit Price" shall equal the
weighted average price of the previous non-conditional unit transaction
prices of the prior sales of USPB Class A or Class B Units. The
weighted average price shall be for the prior unit transactions of
20,000 units of USPB Class A or Class B Units corresponding to the
phantom units being exercised.
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USPB/XXXXXX X. XXXX CEO EMPLOYMENT AGREEMENT
2003-2009
(3) Exercise. CEO shall be entitled to exercise phantom unit
rights upon termination of this Agreement, or at CEO's election, at the
time and under the conditions, and with the same consequences as if CEO
held similar unqualified options to purchase USPB Class A or Class B
Units acquired at the same time as the phantom unit rights. In either
case, payment shall be made to CEO by 90 days after exercise of the
phantom unit rights.
(4) Asset Sale Distribution Rights. Should USPB liquidate some
or all of USPB's assets and distribute the proceeds to unitholders, CEO
shall be paid an amount equal to the distribution to unitholders of
Class A or Class B Units on a per unit basis for the number of CEO's
unexercised phantom Class A or Class B Units without any deduction. For
distributions to Class A Unitholders, the first $55 of such cumulative
distributions shall not be paid to CEO per phantom Class A Unit and
cumulative distributions in excess of $55 shall be paid to CEO without
deduction. The amount under this clause (4) shall be paid at the time
distributions are made to the unitholders. If USPB Class A or Class B
Units are redeemed as part of the distribution, the corresponding
proportional number of unexercised phantom Class A or Class B Units
shall be deemed to be exercised as part of the distribution.
(5) Ownership Interest Distribution Rights. If USPB
distributes ownership rights of another entity to its unitholders, CEO
shall be granted phantom ownership rights in proportion to the
unexercised phantom units held by CEO to the total issued units or, at
election of CEO, actual ownership rights corresponding to the phantom
units as if the unexercised phantom units were converted to USPB units
under clause (6) and were issued to CEO prior to the time of ownership
right distribution. If USPB units are redeemed as part of the
distribution, the corresponding amount of phantom units shall be deemed
to be exercised as part of the distribution.
(6) Conversion Rights. Effective as of termination of this
Agreement and at the election of CEO, or upon mutual agreement of CEO
and USPB, CEO may purchase the number of USPB Class A units at $55 per
unit corresponding to the unexercised phantom Class A Units held by CEO
and the number of USPB Class B Units corresponding to the number of
unexercised Class B Units held by CEO at no purchase price. At election
of CEO and upon agreement with USPB, CEO may convert the unexercised
phantom units to a corresponding number of unqualified unit options to
purchase units of USPB at $55 per unit for Class A Units and without an
exercise price for Class B Units. The purchase or conversion under this
clause (6) shall be considered an exercise of the corresponding number
of phantom units and reduce the number of phantom units held by CEO.
(7) Anti-dilution. CEO's phantom unit rights under this
paragraph (e) shall not be diluted by actions of USPB including
transfer of assets to another entity or issuance of units such that the
number of unexercised phantom unit rights held by CEO at the time of a
dilution event under this paragraph (e) shall be increased so that
CEO's
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USPB/XXXXXX X. XXXX CEO EMPLOYMENT AGREEMENT
2003-2009
phantom unit rights are not diluted. For purposes of this clause (7)
USPB's issuance of additional units at or above the Market Unit Price
corresponding to the number of unexercised phantom unit rights held by
CEO or the issuance of debt instruments or preferred units with fixed
(interest like) returns shall not be considered dilution of CEO's
phantom unit rights.
(f) Other Benefits. CEO shall be entitled to paid vacations, personal
and sick days consistent with the policy of USPB. CEO shall receive other
compensation as approved by the Board of Directors and shall participate in all
fringe benefits approved by the Board of Directors (including, without
limitation, group medical, life, disability and accidental death and
dismemberment insurance) and benefit plans which shall be available from time to
time to management employees of USPB.
(g) Reimbursement Of Business Expenses. During his employment under
this Agreement, CEO shall also be reimbursed by USPB for reasonable business
expenses actually incurred or services provided under this Agreement, upon
presentation of expenses statements or other supporting information as USPB
customarily requires of its management employees.
(h) Renegotiation Due to Change in Business. USPB and CEO agree to
renegotiate the terms and conditions of this Section 3 if during CEO's
employment under this Agreement if a material change in the business of USPB
occurs, in which:
(i) revenues of National Beef Packing Company, LLC or its
successor increase by more than 50% in a fiscal year
over the average revenue of the prior two fiscal
years;
(ii) USPB enters a joint venture by merger, acquisition,
contract or otherwise in which USPB is not a majority
owner;
(iii) the source of revenues of USPB or National Beef
Packing Company, LLC or its successor change more
than 50% from the source of revenues in fiscal year
2003;
(iv) an adverse event such as widespread disease or
widespread calamity which prohibits or materially
changes the ability of the members as a whole to
deliver cattle to USPB; or
(v) other material change events of the same scope and
magnitude as those listed in clauses (i) to (iv).
(i) Indemnification. The parties agree to enter into an Indemnification
Agreement attached hereto as Exhibit B.
4. TERMINATION.
(a) Termination Upon Permanent Disability. The employment of CEO may be
terminated by USPB on at least thirty (30) days prior written notice if the
Board of Directors determines that the CEO has become permanently disabled. CEO
shall be deemed to be "permanently disabled," as used in this section, if CEO
has been substantially unable to discharge his duties and obligations under this
Agreement by reason of illness, accident, or
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USPB/XXXXXX X. XXXX CEO EMPLOYMENT AGREEMENT
2003-2009
disability for a period of 180 days in any twelve-month period. Any disputes
concerning the nature or extent of CEO's disability will be determined by a
neutral physician at the expense of USPB.
(b) Termination Upon Death. The employment of CEO shall automatically
terminate on the date of CEO's death.
(c) Termination For Cause. The employment of CEO may be terminated
forthwith by USPB for cause upon written notice from the Chair of the Board of
Directors to the CEO. The written notice shall provide reasonable detail
regarding the basis for the termination decision. USPB shall have "cause" to
terminate CEO, as used in this subsection, only if CEO has, and the Board of
Directors has determined that CEO has:
(1) refused or failed, after reasonable written notice that
the refusal or failure would constitute a default under this Agreement,
to carry out any reasonable and material order of the Board of
Directors given to him in writing;
(2) been guilty of a willful breach of the terms of this
Agreement;
(3) demonstrated gross negligence or willful misconduct in the
execution of his material assigned duties;
(4) been convicted of a felony or other serious crime;
(5) engaged in fraud, embezzlement or other illegal conduct to
the detriment of USPB;
(6) intentionally imparted confidential information relating
to USPB to a third party, other than in the course of carrying out
CEO's duties, which as resulted in material damage to USPB; or
(7) otherwise fails to reasonably perform his duties and
obligations as contemplated under this Agreement.
(d) Termination By USPB With Any Or No Reason. In addition to the
circumstances set forth above in Sections 4(a), 4(b) and 4(c), USPB may
terminate CEO's employment for any reason or no reason and with or without cause
upon thirty (30) days prior written notice to CEO.
(e) Termination By CEO With Any Or No Reason. CEO may terminate his
employment under this Agreement for any reason or no reason upon thirty (30)
days prior written notice to USPB.
(f) Termination By CEO For Good Reason. CEO may terminate his
employment immediately at any time for good reason (as hereinafter defined) upon
written notice to USPB.
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USPB/XXXXXX X. XXXX CEO EMPLOYMENT AGREEMENT
2003-2009
For purposes of this subsection, "good reason" shall mean the occurrence of any
of the following:
(1) a significant reduction or adverse alteration in the
duties, authorities or responsibilities as CEO;
(2) removal of CEO from, or any failure to re-appoint CEO to,
any titles, offices or positions held by CEO;
(3) a significant reduction by USPB in CEO's basic salary or
bonus as provided in this Agreement; or
(4) a material and willful breach by USPB of any of its
obligations to CEO under this Agreement.
5. COMPENSATION UPON TERMINATION.
(a) Termination Upon Death Or Permanent Disability. If CEO's employment
is terminated pursuant to Section 4(a) or 4(b) above, CEO shall be entitled to,
and USPB's obligation under this Agreement shall be limited to:
(1) the payment of the compensation accrued under Section 3(a)
to the date of the termination plus monthly payments of salary under
Section 3(a) through the date ("Deemed Termination Date") that is the
earlier of the first anniversary of the termination or the Expiration
Date;
(2) the payment, on or before the Annual Bonus Date for the
fiscal year in which the termination occurs and on or before the Annual
Bonus Date for the fiscal year in which the Deemed Termination Date
occurs, of a pro-rated amount (based upon the period of CEO's
employment plus the period through the Deemed Termination Date) of the
Annual Bonus that would have accrued if CEO had remained employed
through the last day of the fiscal year, less normal withholdings;
(3) the payment, on or before the Long-Term Bonus Date that
would have accrued if CEO had remained employed under this Agreement
through August 31, 2009, less normal withholdings; and
(4) the payment, within thirty (30) days following the
termination, of a pro-rated amount (based upon the period of CEO's
employment under this Agreement plus the period through the Deemed
Termination Date) of the Full-Term Bonus that would have accrued if CEO
had remained employed under this Agreement through the Expiration Date,
less normal withholdings.
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USPB/XXXXXX X. XXXX CEO EMPLOYMENT AGREEMENT
2003-2009
(b) Termination By USPB For Cause or By CEO For Any Or No Reason. If
CEO's employment is terminated by USPB pursuant to Section 4(c) above, or if CEO
terminates his employment pursuant to Section 4(e) above, USPB's obligation
hereunder shall be limited to the payment of salary accrued under Section 3(a)
to the date of the termination.
(c) Termination By USPB For Any Or No Reason Or By CEO For Good Reason.
If CEO's employment is terminated pursuant to Section 4(d) or 4(f) above, CEO
shall be entitled to, and USPB's obligation under this Agreement shall be
limited to:
(1) the payment of the salary accrued under Section 3(a) to
the date of the termination plus continued monthly payment of salary
under Section 3(a) and benefits listed in Section 3(e) (subject to any
necessary consent of applicable insurers), through the Expiration Date;
(2) the payment, on or before the Annual Bonus Date for the
fiscal year in which the termination occurs and each fiscal year
thereafter through the Expiration Date, of the Annual Bonus that would
have accrued for the fiscal year if CEO had remained employed under
this Agreement through the last day of the fiscal year, less normal
withholdings;
(3) the payment, on or before the Long-Term Bonus Date, of the
Long-Term Bonus that would have accrued if CEO had remained employed
under this Agreement through August 31, 2009, less normal withholdings;
and
(4) the payment, on or before October 2, 2006 or 2009, of the
Full-Term Bonus that would have accrued if CEO had remained employed
under this Agreement through August 31, 2006 or August 31,2009, less
normal withholdings. If consent of the applicable insurers is not
received within 30 days, then the cash value of the current premiums
will be distributed to CEO in equal monthly payments.
6. CONFIDENTIALITY. CEO will not during his employment or subsequent to his
termination use or disclose, other than in connection with his employment with
USPB, any confidential information to any person not employed by or authorized
by USPB to receive such information, without prior written consent of USPB.
Violation of this provision by CEO shall constitute reasons for termination for
cause by USPB.
(a) Non-competition. USPB agrees not to restrict CEO's ability to
engage in a competitive business following the termination of his employment,
for whatever reason.
(b) Waiver of Severance Benefits. CEO agrees to waive any claim for
severance benefits other than those stated in Section 5 above.
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USPB/XXXXXX X. XXXX CEO EMPLOYMENT AGREEMENT
2003-2009
(c) Successors and Assigns. This Agreement shall be binding on and
inure to the benefit of any successor of USPB. Any successor shall absolutely
and unconditionally assume all of USPB's obligations under this Agreement.
(d) Disputes. Any dispute, controversy or claim for damages arising in
connection with this agreement shall be settled exclusively by arbitration in
Kansas City, Missouri, at a location designated by USPB by an arbitrator
selected by the parties and in accordance with the rules of the American
Arbitration Association then in effect. The parties shall share equally the
expenses of arbitration, unless otherwise agreed.
(e) Governing Law. The validity, interpretation, construction,
performance, enforcement and remedies relating to this agreement and the rights
and obligations of the parties shall be governed by the substantive laws of the
state of Kansas.
(f) Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the CEO and USPB in reference to all matters in this
Agreement. This Agreement replaces and rescinds any prior agreements or
understandings between CEO and USPB.
CEO
---------------------------------
Xxxxxx X. Xxxx
U.S. PREMIUM BEEF, LLC
By:
-----------------------------
Its:
----------------------------
Date:
---------------------------
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EXHIBIT A
COMPENSATION EXAMPLE
USPB LLC CEO COMPENSATION PLAN EXHIBIT A
CEO XXXXX XXXX (FULL USPB BENEFITS)
3-YEAR
Contract Through 8/31/2009 2004 2005 2006 TOTAL 2007
------------ ------------ ------------ ------------- ------------
MULTIPLIER
USPB LLC EBT * $ 20,000,000 $ 20,000,000 $ 20,000,000 $ 60,000,000 $ 25,000,000
USPB LLC GRID PREMIUMS $ 8,000,000 2 $ 16,000,000 $ 16,000,000 $ 16,000,000 $ 48,000,000 $ 16,000,000
------------ ------------ ------------ ------------- ------------
USPB LLC TOTAL FACTORED BENEFITS $ 36,000,000 $ 36,000,000 $ 36,000,000 $ 108,000,000 $ 41,000,000
BASE ANNUAL SALARY $ 550,000 $ 550,000 $ 550,000 $ 1,650,000 $ 700,000
ANNUAL INCENTIVE
2% over $18 mm Ben. $ 360,000 $ 360,000 $ 360,000 $ 1,080,000 $ 460,000
LONG TERM INCENTIVE PLAN
1.25% over $54-84mm Benefits $ 375,000
.75% over 84 $ 180,000 $ 555,000
FULL TERM INCENTIVE PLAN $ 550,000 $ 550,000
TOTAL $ 910,000 $ 910,000 $ 2,015,000 $ 3,835,000 $ 1,160,000
Annual Ave. $ 1,278,333
% of Total Benefits
% of PBT
3-YEAR 6-YEAR
Contract Through 8/31/2009 2008 2009 TOTAL TOTAL
------------- ------------- -------------- -------------
MULTIPLIER
USPB LLC EBT * $ 25,000,000 $ 25,000,000 $ 75,000,000 $ 135,000,000
USPB LLC GRID PREMIUMS $ 8,000,000 2 $ 16,000,000 $ 16,000,000 $ 48,000,000 $ 96,000,000
------------- ------------- -------------- -------------
USPB LLC TOTAL FACTORED BENEFITS $ 41,000,000 $ 41,000,000 $ 123,000,000 $ 231,000,000
BASE ANNUAL SALARY $ 700,000 $ 700,000 $ 2,100,000 $ 3,750,000
ANNUAL INCENTIVE
2% over $18 mm Ben. $ 460,000 $ 460,000 $ 1,380,000 $ 2,460,000
LONG TERM INCENTIVE PLAN
1.25% over $54-84mm Benefits $ 375,000
.75% over 84 $ 292,500 $ 667,500 $ 1,222,500
FULL TERM INCENTIVE PLAN $ 700,000 $ 700,000 $ 1,250,000
TOTAL $ 1,160,000 $ 2,527,500 $ 4,847,500 $ 8,682,500
$ 1,615,833 $ 1,447,083
* USPB LLC Earnings includes all classes of units
Maximum 6-year average annual compensation of $2 million.
Total Benefits The sum of ALL audited fiscal year-end USPB LLC
earnings before tax (includes all classes) and fiscal
year USPB LLC grid premiums.
Grid Premiums The net sum of all USPB LLC member grid premiums and
discounts calculated through the USPB LLC grid taking
into account all calculators including but not
limited to base price, dressing percent, quality
grade, outlier cattle and other specific categories
less the base price calculator excluding any set base
price premium. (Example, 25 cents over the western
Kansas reported USDA average, average, 25 cents would
be added in to the net grid premium.)
EXHIBIT B
INDEMNIFICATION AGREEMENT
USPB/XXXXXX X. XXXX
EXHIBIT B
TO CEO EMPLOYMENT AGREEMENT
2003-2009
INDEMNIFICATION AGREEMENT
BETWEEN
U.S. PREMIUM BEEF, LLC
AND
XXXXXX X. XXXX
THIS INDEMNIFICATION AGREEMENT is entered into as of ______________,
2004, by and between U.S. Premium Beef, LLC, a Delaware Limited Liability
Company ("USPB"), and Xxxxxx X. Xxxx ("Chief Executive Officer" or "CEO").
RECITALS
WHEREAS, USPB wishes to retain CEO to render services for USPB on the
terms and conditions set forth in that certain "CEO Employment Agreement between
U.S. Premium Beef, LLC and Xxxxx X. Xxxx" of even date herewith (the "Employment
Agreement") and CEO has agreed to be retained and employed by USPB on the terms
and conditions set forth in such Employment Agreement;
WHEREAS, the Employment Agreement provides that USPB and the CEO shall
enter into an Indemnification Agreement upon execution of the Employment
Agreement;
WHEREAS, USPB and the CEO desire to set forth in writing the terms and
conditions with respect to USPB's indemnification of CEO, which terms and
conditions are a part of and a condition to CEO's employment by USPB pursuant to
the Employment Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the respective
undertakings of USPB and the CEO set forth below, and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, USPB and the CEO agree
as follows:
1. INDEMNIFICATION. USPB shall, to the extent not expressly prohibited by the
Delaware Limited Liability Company Act as set forth in the Delaware Code
commencing with Section 18-101 of the Delaware Code, indemnify CEO against
reasonable expenses, including attorneys' fees, and against loss or liability
incurred by or asserted against CEO in a legal matter or proceeding in which CEO
is a party or is threatened to be made a party because CEO is, or was, an
officer or employee of USPB or another entity, where the CEO's service as an
officer or employee of the other organization is at the request of USPB. USPB
shall advance amounts to cover expenses, or pay expenses, that are included in
the foregoing indemnity, upon request from the CEO. These indemnification rights
shall not be deemed to exclude any rights to which the
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USBP/XXXXXX X. XXXX EXHIBIT B
TO CEO EMPLOYMENT AGREEMENT
2003-2009
CEO may otherwise be entitled. The foregoing right to indemnification shall: (1)
inure to the CEO whether or not he is an officer or employee at the time the
liability or expenses are asserted, imposed or incurred and whether or not the
claim asserted is based on matters which pre-date this Indemnification
Agreement; and (2) extend to the CEO's heirs and legal representatives in the
event of the CEO's death.
2. EXCLUSIONS FROM INDEMNIFICATION. The right to indemnification in Section 1
does not include any liability or expense relating to a matter in which the CEO
is finally adjudged to have breached or failed to perform a duty that CEO owes
to USPB and the breach or failure to perform constitutes any of the following:
(1) a willful failure to deal fairly with USPB or its members in connection with
a matter in which the CEO has a material conflict of interest; (2) a violation
of the criminal law, unless the CEO had reasonable cause to believe that CEO's
conduct was lawful or no reasonable cause to believe that CEO's conduct was
unlawful; (3) a transaction from which the CEO derived an improper personal
profit; or (4) willful misconduct. Determination of whether the CEO is entitled
to the indemnification provided for above shall be made as provided in the
Delaware Limited Liability Company Act.
3. INSURANCE. USPB further agrees that during the term of the Employment
Agreement and for a period of six (6) years thereafter, USPB shall maintain in
full force and effect a director's and officer's insurance policy insuring the
CEO against liability asserted and incurred by the CEO in the CEO's capacity as
an officer, manager, employee or agent of USPB or another entity as described in
Section 1 or arising from the CEO's status as an officer, manager, employee or
agent of USPB or another entity as described in Section 1. The insurance shall
be in amounts and contain terms and conditions as are reasonable and customary
for a company of the size and scope of USPB participating in the industry and
business in which USPB is engaged, all as determined by the mutual agreement of
USPB and the CEO.
4. RELATIONSHIP WITH EMPLOYMENT AGREEMENT. This Indemnification Agreement is
hereby made a part of and incorporated into the Employment Agreement. In the
event of any conflict between the terms and conditions of the Employment
Agreement and this Indemnification Agreement, the terms and conditions of this
Indemnification Agreement shall control.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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USPB/XXXXXX X. XXXX
EXHIBIT B
TO CEO EMPLOYMENT AGREEMENT
2003-2009
IN WITNESS WHEREOF, USPB and the CEO have executed this Indemnification
Agreement as of the date set forth in the first paragraph.
U.S. PREMIUM BEEF, LLC
By:-----------------------
Its:----------------------
CEO
--------------------------
Xxxxxx X. Xxxx
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