Exhibit 10.4


 


SUPPLEMENTAL BONUS AGREEMENT


 


This
SUPPLEMENTAL BONUS AGREEMENT (the “Agreement”) is entered into this 27th day of
October, 2010, by and between National Beef Packing Company, LLC (the “Company”)
and David L. Grosenheider (the “Executive”).


 


WHEREAS,
the Company and Executive desire to retain the services of Executive under the
terms and conditions of this Agreement;


 


NOW
THEREFORE, in consideration of the mutual undertakings hereinafter set forth,
and for other good and valuable consideration, which each party hereby
acknowledges, it is agreed as follows:


 


1.             Supplemental Bonus.  Company agrees to pay Executive a supplement
bonus payment of $500,000 (each a “Supplemental Bonus” and collectively the “Aggregate
Bonus Opportunity”) within 60 days following the end of fiscal years 2011,
2012, 2013, and 2014, if Executive remains continuously employed by the Company
through the last day of the applicable fiscal year with respect to which the
Supplemental Bonus relates.


 


2.             Acceleration
of Payment.  Notwithstanding
paragraph 1, or any other provision in this Agreement to the contrary, if
Executive’s employment with the Company ends as a result of Executive’s death,
disability, or involuntary termination by the Company without cause as approved
by the Company’s Board of Managers, then any unpaid portion of the Aggregate
Bonus Opportunity amounts shall be paid in a single lump sum within 60 days
following Executive’s separation from service with the Company or within 10
days following a change in control of the Company.


 


3.             Definitions


 


(a)           Cause.  For
purposes of paragraph 2, an “involuntary termination for cause” means Executive’s
termination by the Company for any of the following reasons, each as determined
by the Company in good faith: 
(i) actions by Executive constituting dishonesty, fraud,
embezzlement, criminal acts, or a willful action that is a breach of any of
Executive’s duties to the Company; or (ii) material violation by Executive
of any of the Company’s employment-related policies, procedures, or practices.


 


(b)           Disability. 
For purposes of paragraph 2, Executive’s employment shall be terminated
due to “disability” if:  (i) he is
unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to result in
death or last for a continuous period of not less than 12 months; or (ii) he
is receiving income replacement benefits for a period of not less than three
months under an accident and health plan covering employees of the Company by
reason of Executive’s medically determinable physical or mental impairment that
can be expected to result in death or last for a continuous period of not less
than 12 months.


 


4.             Death
Beneficiary.  Executive may designate
a beneficiary to receive payment of any benefit payable under this Agreement
following Executive’s death.  In the
absence of a designated beneficiary or if no beneficiary survives Executive,
such benefit amounts shall be paid to Executive’s estate.


 


5.             Not
a Contract of Employment. 
Notwithstanding anything in this Agreement, Executive acknowledges and
agrees that this Agreement does not constitute a contract of employment and
that, 


 

















 


except
to the extent otherwise expressly provided in a separate written contract of
employment between the Company and Executive, Executive at all times remains an
at-will Executive of the Company subject to the Company’s employment and
personnel policies and practices.


 


6.             Choice
of Law or Jurisdiction.  This
Agreement shall be construed and governed by the laws of the State of Missouri,
without reference to its choice of law principles.  For purposes of determining any controversy
arising under this Agreement, each of the parties hereby consents to the
exclusive jurisdiction, personal and otherwise, of the federal and state courts
of the State of Missouri, and hereby waives any objections of any nature to
venue in such courts.


 


7.             Entire
Agreement.  The parties hereto agree
that this Agreement may not be modified, altered, or changed except by a
written agreement signed by the parties hereto. 
The parties acknowledge that this constitutes the entire agreement
between them superseding all prior written and oral agreements with respect to
a Supplemental Bonus, and that there are no other understandings or agreements,
written or oral, among them on the subject of a Supplemental Bonus.  If any provision of this Agreement is held to
be invalid, the remaining provisions shall remain in full force and effect.


 


8.             Taxes.  All payments under this Agreement shall be
subject to applicable federal, state and local tax withholding.  It is the intent of the parties that this
Agreement shall be interpreted and administered in a manner so that any amount
or benefit payable hereunder shall be paid or provided in a manner that is
either exempt from or compliant with the requirements Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”), and applicable Internal
Revenue Service guidance and Treasury Regulations issued thereunder.  Neither the Company nor its directors,
officers, executives or advisers shall be held liable for any taxes, interest,
penalties or other monetary amounts owed by Executive as a result of the
application of Section 409A of the Code. 
Notwithstanding anything in this Agreement to the contrary, all payments
and benefits under this Agreement that would constitute non-exempt “deferred
compensation” for purposes of Section 409A of the Code and that would
otherwise be payable or distributable hereunder by reason of Executive’s
termination of employment, will not be payable or distributable to Executive
unless the circumstances giving rise to such termination of employment meet any
description or definition of “separation from service” in Section 409A of
the Code and applicable regulations (without giving effect to any elective
provisions that may be available under such definition).  If this provision prevents the payment or
distribution of any amount or benefit, such payment or distribution shall be
made on the date, if any, on which an event occurs that constitutes a Section 409A-compliant
“separation from service.”


 


9.             Miscellaneous.  Executive cannot assign any right or
obligation under this Agreement without the prior written consent of the
Company.  Paragraph headings in this
Agreement are included for convenience of reference only and shall not
constitute a part of this Agreement for any purpose.  This Agreement may be signed in multiple
counterparts that, together, shall constitute a single agreement.


 


IN
WITNESS WHEREOF, this Agreement is entered into as of the date and year first
written above.


 


	
   

  	
  NATIONAL
  BEEF PACKAGING COMPANY, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Timothy
  M. Klein

  
	
   

  	
  Title:
  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
  /s/
  David L. Grosenheider

  



 


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