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Delaware
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001-13323
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36-2495346
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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Item
5.02
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Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain
Officers.
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On December 8, 2009, the Board of Directors
(the “Board”) of Darling International Inc. (the "Company") resolved to
amend certain Senior Executive Termination Benefits Agreements previously
entered into by and between the Company and each of Neil Katchen, John O.
Muse and John F. Sterling (each, an "Agreement" and together, the
"Agreements"). Each of Messrs. Katchen, Muse and Sterling is
referred to herein individually as "Executive" and together as the
"Executives."
Set forth below is a brief description of the
material terms and conditions of the Agreements. The summary
set forth below is not intended to be complete and is qualified in its
entirety with respect to Mr. Katchen and Mr. Sterling by reference to the
full text of the Form of Senior Executive Termination Benefits Agreement
attached as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed
on November 29, 2007 and with respect to Mr. Muse by reference to the full
text of the Amended and Restated Senior Executive Termination Benefits
Agreement dated as of January 15, 2009 between the Company and Mr. Muse
attached as Exhibit 10.2 to the Company’s Current Report on Form 8-K filed
on January 21, 2009.
Pursuant to the Agreements, the Company must
provide the applicable Executive certain benefits (discussed below) upon
any termination of his employment except (i) termination by reason of the
voluntary resignation by such Executive, (ii) termination for Cause (as
defined in the Agreements) or (iii) termination upon such Executive's
normal retirement. Neither permanent or long-term disability
status nor death of an Executive is deemed a termination for purposes of
the Agreements. Such termination with the exceptions set forth
above is referred to herein as an "Eligible Termination
Event."
Subject to the mitigation provisions
(discussed below) and Executive’s execution of a release of claims in
respect of Executive’s employment with the Company, the Company shall
provide Executive the following benefits upon an Eligible Termination
Event: (i) periodic payment in the amount of Executive's salary at the
rate in effect on the date of the Eligible Termination Event until such
Executive has been paid one times his annual base salary (or 1.5 times his
annual base salary in the case of Mr. Muse) (the “Termination Payment
Amount”), (ii) any accrued vacation pay due but not yet taken at the date
of the Eligible Termination Event, (iii) life, disability, health and
dental insurance, and certain other similar fringe benefits of the Company
(or similar benefits provided by the Company) (the "Fringe Benefits") in
effect immediately prior to the date of termination for a period of one
year from the date of termination (or 18 months in the case of Mr. Muse)
to the extent allowed under the applicable policies. See the
Company's Proxy Statement filed with the Securities and Exchange
Commission on April 3, 2009 for salary and other benefits information for
each of the Executives.
Executive is not entitled to any bonus under
the Company's Executive Bonus Plan for the year in which the Eligible
Termination Event occurs.
In addition, upon an Eligible Termination
Event, the Company shall engage an outplacement counseling service of
national reputation, at its own expense, to assist Executive in obtaining
employment until the earliest of (i) two years from the date of the
Eligible Termination Event, (ii) such date as Executive obtains employment
or (iii) Company expenses related thereto equal
$10,000.
Executive is
required to mitigate the payments under the Agreements by seeking other
comparable employment as promptly as practicable after the Eligible
Termination Event. Amounts due under the Agreements will be offset against
or reduced by any amount earned from such other employment. The
Fringe Benefits shall terminate upon Executive's obtaining such other
employment.
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The Agreements also contain obligations on
Executive’s part regarding nondisclosure of confidential information,
return of Company property, non-solicitation of employees during
employment and for a period of one year following the termination of
employment for any reason, non-disparagement of the Company and its
business and continued cooperation in certain matters involving the
Company.
In addition to the foregoing, the Agreement
with Mr. Muse also provides that if the Company terminates Mr. Muse’s
employment without cause within twelve months following a change of
control (as defined in the Mr. Muse’s Agreement) or Mr. Muse resigns
within ninety days following a change of control, then in lieu of the
Termination Payment Amount and subject to certain conditions,
Mr. Muse will receive a lump sum payment within thirty days of the date of
termination equal to three times Mr. Muse’s annual base salary at the
highest rate in effect in the preceding twelve months (the “Change of
Control Termination Payment”). The Change of Control
Termination Payment is not subject to the mitigation provision described
above with respect to the Termination Payment Amount.
Each Agreement was amended by an Addendum to
Senior Executive Termination Benefits Agreement (the
"Addendum"). Messrs. Katchen, Muse and Sterling each signed the
Addendum on December 9, 2009. Each Addendum extended the term
of the applicable Agreement by one year to December 31,
2010. In addition, the Addendum with Mr. Muse eliminated a
provision in Mr. Muse’s Agreement that entitled Mr. Muse to receive a
gross-up payment from the Company sufficient to cover any excise tax
penalty under Section 280G of the Internal Revenue Code of 1986, as
amended, that might be imposed upon Mr. Muse as a result of a termination
of Mr. Muse’s employment following a change of control. All
other terms and conditions of each Agreement remain
unchanged. A Form of the Addendum for Messrs. Katchen and
Sterling is attached hereto as Exhibit 10.3 and incorporated herein by
reference. The Addendum for Mr. Muse is attached hereto as
Exhibit 10.4 and incorporated herein by
reference. |
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Item
9.01
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Financial
Statements and Exhibits.
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(d)
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Exhibits
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10.1
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Form
of Senior Executive Termination Benefits Agreement (filed as Exhibit 10.1
to the Company’s Current Report on Form 8-K filed November 29, 2007, and
incorporated herein by reference).
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| 10.2 |
Amended
and Restated Senior Executive Termination Benefits Agreement dated as of
January 15, 2009 between Darling International Inc. and John O. Muse
(filed as Exhibit 10.2 to the Company’s Current Report on Form 8-K filed
January 21, 2009, and incorporated herein by
reference).
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| 10.3 |
Form
of Addendum to Senior Executive Termination Benefits Agreement (filed as
Exhibit 10.2 to the Company’s Current Report on Form 8-K filed December
12, 2008, and incorporated herein by reference).
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| 10.4 |
First
Addendum to Amended and Restated Senior Executive Termination Benefits
Agreement dated as of December 8, 2009 by and between Darling
International Inc. and John O.
Muse. |
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DARLING INTERNATIONAL
INC.
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Date:
December 14, 2009
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By:
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/s/ John O. Muse |
| John O. Muse | ||
| Executive Vice President, | ||
| Finance and Administration |
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10.1
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Form
of Senior Executive Termination Benefits Agreement (filed as Exhibit 10.1
to the Company’s Current Report on Form 8-K filed November 29, 2007, and
incorporated herein by reference).
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| 10.2 |
Amended
and Restated Senior Executive Termination Benefits Agreement dated as of
January 15, 2009 between Darling International Inc. and John O. Muse
(filed as Exhibit 10.2 to the Company’s Current Report on Form 8-K filed
January 21, 2009, and incorporated herein by
reference).
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| 10.3 |
Form
of Addendum to Senior Executive Termination Benefits Agreement (filed as
Exhibit 10.2 to the Company’s Current Report on Form 8-K filed December
12, 2008, and incorporated herein by reference).
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| 10.4 |
First
Addendum to Amended and Restated Senior Executive Termination Benefits
Agreement dated as of December 8, 2009 by and between Darling
International Inc. and John O.
Muse. |