EX-10.1
2
ex10termagmt.htm
FORM OF SR EXEC TERMINATION BENEFITS AGMT
SENIOR
EXECUTIVE
TERMINATION
BENEFITS AGREEMENT
AGREEMENT,
dated as of ____________
___, 20__, by and between Darling International Inc., a Delaware corporation
(the “Company”), and _____________ (the “Executive”).
W
I T N E S S E T H:
WHEREAS,
the Executive has made and, if
he continues to be employed by the Company, will continue to make valuable
contributions to the productivity and profitability of the Company;
and
WHEREAS,
the Company considers that
providing severance benefits will operate as an incentive for the Executive
to
remain employed by the Company;
NOW,
THEREFORE, to induce the Executive
to remain employed by the Company, and to acknowledge the “At Will” status of
the Executive’s employment by the Company, and for other good and valuable
consideration, the Company and the Executive agree as follows:
1. Circumstances
Triggering Receipt of Severance
Benefits.
|
Subject
to the Executive’s execution of a general release (on the Company’s
standard form) in favor of the Company pursuant to which the Executive
waives, effective as of the Termination Date (as hereinafter defined),
any
and all claims, known or unknown, relating to the Executive’s employment
by the Company or the termination thereof, the Company shall provide
the
Executive with the benefits set forth in Section 3 upon any termination
of
the Executive’s employment for any reason except the
following:
|
(a)
|
Termination
by reason of the Executive’s “voluntary termination.” For the purposes
of this Agreement, “voluntary termination” shall mean the voluntary
resignation by the Executive of his employment with the
Company;
|
(b)
|
“Termination
with Cause.” For the purposes hereof, “Cause” shall mean
termination of employment of the Executive by the Company following
(1)
failure of the Executive to render services to the Company in accordance
with the reasonable directions of the Company’s Chief Executive Officer or
Board of Directors, which failure shall continue after written
notice from
the Company, (2) the commission by the Executive of an act of fraud
or
dishonesty or of an act which he knew to be in material violation
of his
duties to the Company (including the unauthorized disclosure of
confidential information) or (3) following a felony conviction
of the
Executive; or
|
1
(c)
|
Termination
upon the Executive’s normal retirement. For the purposes of
this Agreement, “normal retirement” shall mean the termination of
employment of the Executive by the Company or the Executive in
accordance
with the Company’s retirement policy (including early retirement, if
included in such policy and elected by the Executive in writing)
generally
applicable to its senior executive employees, or in accordance
with any
other retirement agreement entered into by and between the Executive
and
the Company.
|
|
For
the purpose of this Agreement, the placement of the Executive on
permanent
or long-term disability status as defined by the Company’s long-term
disability policy covering the Executive and the death of the Executive
shall not be deemed a termination and shall not qualify the Executive
for
the benefits set forth in this
Agreement.
|
2. No
Entitlement of Employment and Acknowledgment of “At Will”
Status.
|
This
Agreement shall not be construed as and does not constitute a promise
or
guaranty of continued employment. In consideration of this Agreement,
the
Executive acknowledges and agrees that his employment with the Company
is
“At Will”. The Executive understands that his employment with the Company
is not for a specified term and is at the mutual consent of the Executive
and the Company and, therefore, the Company can terminate the employment
relationship at will, with or without
Cause.
|
3. Termination
Benefits.
|
Subject
to the conditions set forth in Section 1, and subject to the mitigation
provisions contained in Section 5, the following benefits (subject
to any
changes in benefit programs that may occur in the future and any
applicable payroll or other taxes required to be withheld) shall
be
provided to the Executive:
|
(a)
|
Compensation.
Commencing on the Termination Date (as defined below), the Executive
shall
be paid periodically, according to his unit’s wage practices, the amount
of his periodic base salary until he has been paid one (1) times
his
annual base salary (“Termination Pay Amount”) at the rate in effect
on the date of the termination of his employment with the Company
(the
“Termination Date”). Each such periodic termination
payment is hereby designated a separate payment for purposes of
Section
409A of the Internal Revenue Code of 1986, as amended (the
“Code”).
|
(b)
|
Vacation
Pay. Any accrued vacation pay due but not yet taken at the Termination
Date shall be paid to the Executive on the Termination
Date.
|
(c)
|
Welfare
Benefits, etc. The Executive’s participation (including dependent
coverage) in any life, disability, health and dental plans, and
any other
similar fringe benefits of the Company (except business accident
insurance
and continued contributions to qualified retirement plans) in effect
immediately prior to the Termination Date shall be continued, or
equivalent benefits provided by the Company, for a period of one
year from
the Termination Date to the extent allowed under the policies or
agreements pursuant to which the Company obtains and provides such
benefits.
|
2
(d)
|
Bonus
and Retirement Benefits. The Executive shall not be
entitled to any bonus under the Company’s executive bonus plan for the
year in which his termination occurs. The Agreement shall not affect
the
Executive’s entitlement to benefits under the Company’s retirement plan
accrued as of his termination.
|
(e)
|
Executive
Outplacement Counseling. The Company shall engage an
outplacement counseling service of national reputation, at its
own expense
provided that such expense shall not exceed Ten Thousand Dollars
($10,000), to assist the Executive in obtaining employment, until
the
earliest of (i) two years from the Termination Date, (ii) such
date as the
Executive has obtained employment, or (iii) until such time the
Company’s
expenses equal Ten Thousand Dollars
($10,000).
|
4. Entirety.
|
This
Agreement constitutes the entire agreement between the parties pertaining
to the subject matter contained herein and supersedes all prior and
contemporaneous agreements, representations and understandings of
the
parties. No supplement, modification or amendment of this Agreement
shall
be binding unless referring specifically to this Agreement and executed
in
writing by the parties hereto. In no event will the Executive
be entitled to severance under both this Agreement and the Company’s
severance policy, if any, as it is the intent of the parties hereto
that
the severance provided for in this Agreement shall be in lieu of,
and not
in addition to, the severance that the Executive would otherwise
be
entitled to under the Company’s severance policy, if
any.
|
5. Mitigation.
|
The
Executive is required to mitigate the Termination Pay Amount by seeking
other comparable employment as promptly as practicable after the
Termination Date and amounts due hereunder shall be offset against
or
reduced by any amount earned from such other employment. The benefits
provided for in Section 3(c) shall terminate upon the Executive’s
obtaining such other employment. The Executive hereby agrees to notify
the
Company promptly upon obtaining
employment.
|
6. Certain
Obligations of Executive.
|
In
order to induce the Company to enter into this Agreement, the Executive
hereby agrees to the following obligations, which obligations of
the
Executive shall be in addition to, and shall not limit, any other
obligation of the Executive to the Company with respect to the matters
set
forth herein or otherwise:
|
3
(a)
|
Nondisclosure. The
Executive hereby agrees that all documents, records, techniques,
business
secrets, price and route information, business strategy and other
information, whether in electronic form, hardcopy or other format,
which
have come into his possession from time to time during his employment
by
the Company or which may come into his possession during his employment,
shall be deemed to be confidential and proprietary to the Company
and the
Executive further agrees to retain in confidence any confidential
information known to him concerning the Company and its affiliates
and
their respective businesses, unless such information (i) is publicly
disclosed by the Company or (ii) is required to be disclosed by valid
legal process; provided, however, that prior to any such disclosure,
if
reasonably practicable, the Executive must first notify the Company
and
cooperate with the Company (at the Company’s expense) in seeking a
protective order.
|
(b)
|
Return
of Property. The Executive agrees that, upon termination of
the Executive’s employment with the Company for any reason, the Executive
will return to the Company, in good condition, all property of the
Company
and any of its affiliates, including without limitation, keys; building
access cards; computers; cellular telephones; automobiles; the originals
and all copies (in whatever format) of all management, training,
marketing, pricing, strategic, routing and selling materials; promotional
materials; other training and instructional materials; financial
information; vendor, owner, manager and product information; customer
lists; other customer information; and all other selling, service
and
trade information and equipment. If such items are not
returned, the Company will have the right to charge the Executive
for all
reasonable damages, costs, attorneys’ fees and other expenses incurred in
searching for, taking, removing and/or recovering such
property.
|
(c)
|
Nonsolicitation. During
the period of employment with the Company and for a period of 12
months
thereafter, the Executive will not, on the Executive’s own behalf or on
behalf of any other person, partnership, association, corporation
or other
entity, or otherwise act indirectly to hire or solicit or in any
manner
attempt to influence or induce any employee of the Company or its
affiliates to leave the employment of the Company or its affiliates,
nor
will the Executive use or disclose to any person, partnership,
association, corporation or other entity any information obtained
while an
employee of the Company concerning the names and addresses of the
employees of the Company or its
affiliates.
|
(d)
|
Nondisparagement. The
Executive shall not, either during the term of this Agreement or
at any
time thereafter, make statements, whether orally or in writing, concerning
the Company, any of its directors, officers, employees or affiliates
or
any of its business strategies, policies or practices, that shall
be in
any way disparaging, derogatory or critical, or in any way harmful
to the
reputation of the Company, any such persons or entities or business
strategies, policies or practices.
|
4
(e)
|
Cooperation. The
Executive agrees to cooperate, at the request and expense of the
Company,
in the prosecution and/or defense of any claim or litigation in which
the
Company or any affiliate is involved on the Termination Date or thereafter
that includes subject matter as to which the Executive has knowledge
and/or expertise.
|
(f)
|
Damages. Notwithstanding
anything in this Agreement to the contrary, if the Executive breaches
the
covenants contained in this Section 6, the Company will have no further
obligations to the Executive pursuant to this Agreement or otherwise
and
may recover from the Executive all such damages to which it may be
entitled at law or in equity. In addition, the Executive
acknowledges that any such breach may result in immediate and irreparable
harm to the Company for which money damages are likely to be
inadequate. Accordingly, the Company may seek whatever relief
it determines to be appropriate to protect the Company’s rights under this
Agreement, including, without limitation, an injunction to prevent
the
Executive from disclosing any trade secrets or confidential or proprietary
information concerning the Company to any person or entity, to prevent
any
person or entity from receiving from the Executive or using any such
trade
secrets or confidential or proprietary information and/or to prevent
any
person or entity from retaining or seeking to retain any other employees
of the Company. The Executive acknowledges good and sufficient
consideration for the covenants of this Section
6.
|
7. Successors.
|
The
Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially
all
of the business and/or assets of the Company to expressly assume
and agree
to perform this Agreement in the same manner and to the same extent
that
the Company would be required to perform it if no such succession
has
taken place.
|
8. Governing
Law.
|
The
validity, interpretation, construction and performance of this Agreement
shall be governed by the internal laws of the State of
Texas.
|
9. Termination.
This
Agreement shall terminate on
December 31, 20__.
5
10. Compliance
with Code Section 409A.
To
the
extent applicable, this Agreement shall be interpreted in accordance with
Section 409A of the Code and Department of Treasury regulations and other
interpretive guidance issued thereunder. Notwithstanding any
provision of this Agreement to the contrary, and if and only to the extent
it
becomes necessary to prevent any accelerated or additional tax under Section
409A of the Code, if the Executive is a “specified employee” as defined in
Section 409A of the Code, any severance pay or benefits constituting deferred
compensation to which Section 409A applies and payable by reason of the
Executive’s termination of employment (severance pay and benefits up to $450,000
are not subject to Section 409A) shall be deferred (without any adjustment
to
the amount of such payments or benefits ultimately paid or provided to the
Executive) until the date that is six (6) months following such termination
(or
the earliest date as is permitted under Section 409A of the Code).
IN
WITNESS WHEREOF,
the parties have caused this Agreement to be executed and delivered as of the
day and year first above set forth.
DARLING
INTERNATIONAL
INC.
By:
_____________________________
Xxxxxxx
X. Xxxxxx
Chief
Executive Officer
EXECUTIVE
By:
_____________________________
Printed
Name:
____________________
6