TYSON FOODS, INC.
AMENDED AND RESTATED
NONSTATUTORY STOCK OPTION PLAN
Adopted: December 17, 1982
Amended and Restated: September 5, 1987
Amended and Restated: November 18, 1994
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TYSON FOODS, INC.
AMENDED AND RESTATED
NONSTATUTORY STOCK OPTION PLAN
1. ESTABLISHMENT, PURPOSE AND DEFINITIONS.
(a) The Tyson Foods, Inc. Nonstatutory Stock Option Plan (the
"Plan") was originally adopted by the Board of Directors of Tyson Foods,
Inc. (the "Company") on December 17, 1982 and was originally approved by
majority vote of the stockholders of the Company on February 25, 1983. The
Plan has been subsequently amended by the Board of Directors of the Company
on September 5, 1987 and November 18, 1994 is hereby restated in such
amended form.
(b) The purpose of the Plan is to provide a means whereby key
employees and independent contractors of the Company or its affiliates may
be given an opportunity to purchase shares of the Class A Common Stock of
the Company (the "Stock") pursuant to options which do not qualify as
"incentive stock options" under Section 422A of the Internal Revenue Code.
In addition, key employees may be awarded stock appreciation rights
("Rights") payable in Stock or cash, or any combination thereof, as
provided herein.
(c) The term "key employee" or "key employees" herein shall mean
one or more (i) employees of the Company or its affiliates, and (ii)
officers, directors and consultants, whether employees or independent
contractors, who render those types of services which tend to contribute
materially to the success of the Company or an affiliate or which
reasonably may be anticipated to contribute materially to the future
success of the Company or an affiliate.
(d) The term "affiliates" as used in the Plan means parent or
subsidiary corporations, as defined in Section 425 of the Internal Revenue
Code (but substituting "Company" for "employer corporation"), including
parents or subsidiaries which become such after adoption of the Plan.
2. STOCK SUBJECT TO THE PLAN.
(a) The total number of shares of Stock which either may be
purchased pursuant to the exercise of options granted under the Plan or
acquired pursuant to the exercise of Rights granted under the Plan shall
not exceed, in the aggregate, 5,500,000 shares (which amount reflects all
adjustments through November 18, 1994 and is subject to future adjustment
in accordance with paragraph 2(b)) (the "Total Plan Shares"). Accordingly,
the sum of (i) the number of shares of Stock subject at any time to options
or Rights granted under the Plan and (ii) the number of shares of Stock
then outstanding pursuant to exercises of options or Rights granted under
the Plan shall not exceed the Total Plan Shares. Additionally, the maximum
number of shares of Stock subject to option and Rights granted to an
"executive officer" of the Company (as determined by the Company's Board of
Directors from time to time) shall not exceed 2% of the Total Plan Shares.
As the Committee (as hereinafter defined) may determine from time to time,
the shares of Stock subject to options or Rights granted under the Plan may
consist either in whole or in part of shares of authorized but unissued
Stock, or shares of authorized and issued Stock reacquired by the Company.
If an option or Right is surrendered or for any other reason ceases to be
exercisable in whole or in part, the shares which were subject to such
option or Right but as to which the option or Right had not been exercised
shall continue to be available under the Plan.
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(b) If there shall be any change in the Stock subject to the
Plan or the Stock subject to any option or Right granted hereunder, through
merger, consolidation, reorganization, recapitalization, reincorporation,
stock split, stock dividend (in excess of 2%), or other change in the
corporate structure of the Company, appropriate adjustment shall be made by
the Committee to the Total Plan Shares and the number of shares and price
per share subject to outstanding options or Rights in order to preserve,
but not to increase, the benefits of the holder; provided, however, that
subject to any required action by the stockholders, if the Company shall
not be the surviving corporation in any merger, consolidation, or
reorganization, every option or Right outstanding hereunder shall
terminate, unless the surviving corporation shall (subject to any
applicable provisions of the Internal Revenue Code) assume (with
appropriate changes) the outstanding options or Rights or replace them with
new options or Rights of comparable value. Notwithstanding the preceding
proviso, if such surviving corporation does not so assume or replace the
outstanding options or Rights hereunder, each holder shall have the right
immediately prior to such merger, consolidation or reorganization to
exercise his outstanding option(s) or Right(s).
3. ELIGIBILITY.
Persons who shall be eligible to have granted to them the options
or Rights provided for by the Plan shall be such bona fide key employees of
the Company or its affiliates (including officers, whether or not they are
directors) as the Committee in its discretion shall designate from time to
time.
4. ADMINISTRATION OF THE PLAN.
(a) The Plan shall be administered by the Compensation Committee
of the Board of Directors, or a Subcommittee thereof (the "Committee"),
consisting of not less than two directors of the Company to be appointed by
the Board of Directors. The Board of Directors may from time to time
remove members from, or add members to, the Committee with or without
cause. Vacancies on the Committee, howsoever caused, shall be filled by
the Board of Directors. Each member of the Committee shall be (i) a
"disinterested person" within the meaning of Rule 16b-3 (or any successor
rule or regulation) promulgated under the Securities Exchange Act of 1934,
as amended (the "Exchange Act") and (ii) an "outside director" as defined
pursuant to Section 162(m) of the Omnibus Budget Reconciliation Act of
1993, as amended. The Committee shall select one of its members as
chairman and shall hold meetings at such times and places as it may
determine. A majority of the Committee shall constitute a quorum and acts
of the Committee at which a quorum is present, or acts reduced to or
approved in writing by all the members of the Committee, shall be the valid
acts of the Committee.
(b) The Committee may from time to time determine which key
employees of the Company or any affiliates shall be granted options or
Rights under the Plan and the terms thereof, and, subject to the provisions
of paragraph 2 hereof, the number of shares which may be acquired under the
options or Rights.
(c) The Committee shall report to the Board of Directors the
names of persons granted options or Rights, the number of shares covered by
each option or Right, and the terms and conditions of each such option or
Right.
(d) The Committee shall have the sole authority, in its absolute
discretion, to adopt, amend and rescind such rules and regulations as, in
its opinion, may be advisable in the administration of the Plan; and to
construe and interpret the Plan, the rules and regulations, and the
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instruments evidencing options, Rights and loans granted under the Plan and
to make all other determination: deemed necessary or advisable for the
administration of the Plan. All decisions, determinations, and
interpretations of the Committee shall be binding on all holders of options
or Rights.
(e) The Committee may employ such legal counsel, consultants and
agents as it may deem desirable for the administration of the Plan and may
rely upon any opinion received from any such counsel or consultant and any
computation received from any such consultant or agent. Expenses incurred
by the Board of Directors or the Committee in the engagement of such
counsel, consultant or agent shall be paid by the Company. No member or
former member of the Committee or of the Board of Directors shall be liable
for any action or determination made in good faith with respect to the Plan
or any option or Right granted hereunder.
5. THE OPTION PRICE.
(a) The option price of the shares of Stock covered by each
option shall not be less than the fair market value of such shares on the
date the option is granted. Such price shall be subject to adjustment as
provided in paragraph 2(b) hereof.
(b) The option price shall become due immediately upon exercise
of the option and shall be payable in full in cash or cash equivalents;
provided, however, that the Committee shall have the authority, exercisable
at its discretion either at the time the option is granted or at the time
it is exercised, to make the option payable in one of the alternative forms
specified below:
(i) full payment in shares of Stock having a fair market
value on the Exercise Date (as such term is defined below) equal
to the option price; or
(ii) a combination of shares of Stock valued at fair market
value on the Exercise Date and cash or cash equivalents, equal in
the aggregate to the option price.
For purposes of this paragraph 5(b), the Exercise Date shall be the date on
which the Company receives written notice of the exercise of the option,
together with payment of the option price in the form authorized by the
Committee.
(c) For purposes of determining the fair market value of Stock
on any relevant date under subparagraph (a) or (b) above, the following
rules shall apply:
(i) If the Stock is not at the time listed or admitted to
trading on a stock exchange or in the over-the-counter market
under the National Association of Securities Dealers, Inc.
Automated Quotation System ("NASDAQ"), the fair market value
shall be the mean between the lowest reported bid price and
highest reported asked price of the Stock on the date in question
in the over-the-counter market, as such prices are reported in a
publication of general circulation selected by the Company and
regularly reporting the market price of the Stock in such market;
or
(ii) If the Stock is at the time listed or admitted to
trading in the over-the-counter market under NASDAQ or on any
stock exchange, then the fair market value shall be the reported
closing sale price of the Stock on the date in question on NASDAQ
or on the principal exchange on which the Stock is then listed or
admitted to trading, as the case may be. If no reported sale of
Stock takes place on the date in question, then the reported
closing asked price of the Stock on such date shall be
determinative of fair market value.
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(d) If any portion of the option price is paid by delivery of
shares of Stock, the certificates representing such shares shall be
presented to the Company in proper form for transfer accompanied by all
requisite stock transfer tax stamps or cash in lieu thereof.
6. TERMS AND CONDITIONS OF OPTIONS.
Each option granted pursuant to the Plan shall be evidenced by a
written Stock Option Agreement executed by the Company and the person to
whom such option is granted. The term of each option shall be for such a
period of time, not more than ten years from the date it is granted, as the
Committee may determine. During the lifetime of the optionee, the option
shall be exercisable only by the optionee or by his guardian or legal
representative and shall not be assignable or transferable other than by
will or the laws of descent and distribution. In addition, the Stock
Option Agreement may contain such other terms, provisions and conditions as
may be determined by the Committee including, without limitation,
provisions relating to the effect upon exercisability of the death or
termination of employment of the optionee, the extension of credit to the
optionee by the Company or the guarantee by the Company of any loan to the
optionee from a third party to finance the exercise of the option, and the
terms of any Right granted with respect to the option.
During the term of each option granted pursuant to the Plan, the
Committee, with the consent of the holder of the Option, may modify any or
all of the terms, provisions and conditions of such option so long as such
modified terms, provisions and conditions are otherwise permissible
pursuant to the terms of the Plan as approved by the stockholders of the
Company.
7. STOCK APPRECIATION RIGHTS.
(a) In the discretion of the Committee, a Right may be granted
(i) alone, (ii) simultaneously with the grant of an option and in tandem
therewith or in the alternative thereto or (iii) subsequent to the grant of
an option and in tandem therewith or in the alternative thereto. Any Right
shall be exercisable upon such additional terms and conditions as may from
time to time be prescribed by the Committee; provided that a Right granted
alone shall be deemed exercised on the last day of its term if the Right is
not otherwise exercised by the holder thereof and the fair market value of
the shares of Stock subject to the Right exceeds the exercise price thereof
on such date. During the lifetime of a holder, a Right shall be
exercisable only by the holder or by his guardian or legal representative
and shall not be assignable or transferable other than by will or the laws
of descent and distribution.
(b) The exercise price of a Right granted alone shall be
determined by the Committee, but shall not be less than one hundred percent
(100%) of the fair market value of one share of Stock on the date of grant
of such Right. A Right granted simultaneously with or subsequent to the
grant of an option and in tandem therewith or in the alternative thereto
shall have the same exercise price as the related option, shall be
transferable only upon the same terms and conditions as the related option,
and shall be exercisable only to the same extent as the related option;
provided however, that a Right, by its terms, shall be exercisable only
when the fair market value of the shares of Stock subject to the Right and
related option exceeds the exercise price thereof.
(c) Upon exercise of a Right granted simultaneously with or
subsequent to an option and in the alternative thereto, the number of
shares of Stock for which the related option shall be exercisable shall be
reduced by the number of shares of Stock for which the Right shall have
been exercised. The number of shares of Stock for which a Right granted in
the alternative to an option shall be exercisable shall be reduced upon any
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exercise of the related option by the number of shares of Stock (for which
such option shall have been exercised.
(d) A Right shall entitle the holder to receive from the
Company, upon a written request filed with the Corporate Secretary of the
Company at its principal offices (the "Request"), a number of shares of
Stock as specified in the Request (with or without restrictions as to
substantial risk of forfeiture and transferability, as determined by the
Committee in its sole discretion), an amount of cash, or any combination of
shares of Stock and cash, as set forth in the Request (but subject to the
approval of the Committee, in its sole discretion, at any time up to and
including the time of payment, as to the making of any cash payment),
having an aggregate value equal to the product of (i) the excess of the
fair market value on the day of such Request of one share of Stock over the
exercise price per share of Stock specified in such Right or its related
option, multiplied by (ii) the number of shares of Stock for which such
Right shall be exercised; provided, however, that the Committee, in its
discretion, may impose a maximum limitation on the amount of cash, the fair
market value of shares of Stock, or a combination thereof, which may be
received by a holder upon exercise of a Right.
(e) Any election by a holder of a Right to receive cash in full
or partial settlement of such Right, and any exercise of such Right for
cash, may be made only by a Request filed with the Corporate Secretary of
the Company during the period beginning on the third business day following
the date of release for publication by the Company of quarterly or annual
summary statements of earnings and profits and ending on the twelfth
business day following such date. Within sixty (60) days of the receipt by
the Company of a Request to receive cash in full or partial settlement of a
Right or to exercise such Right for cash, the Committee shall, in its sole
discretion, either consent to or disapprove, in whole or in part, such
Request. If the Committee disapproves in whole or in part any election by
a holder to receive cash in full or partial settlement of a Right or to
exercise such Right for cash, such disapproval shall not affect such
holder's right to exercise such Right at a later date, to the extent that
such Right shall be otherwise exercisable, or to elect the form of payment
at a later date, provided that an election to receive cash upon such later
exercise shall be subject to the approval of the Committee. Additionally,
such disapproval shall not affect such holder's right to exercise any
related option or options granted to such holder under the Plan.
Notwithstanding the foregoing, a holder or a Right shall not receive cash
in full or partial settlement of such Right, or upon the full or partial
exercise of such Right, if such Right or the related option shall have been
exercised during the first six (6) months of its respective term; provided,
however, that such prohibition shall not apply if the holder of such Right
dies or becomes disabled (within the meaning of Section 105(d) (4) of the
Internal Revenue Code) prior to the expiration of such six-month period, or
if such holder is not a director or officer of the Company or a beneficial
owner of the Company who is described in Section 16(a) of the Exchange Act.
(f) The fair market value of shares of Stock subject to Rights
shall be determined in accordance with paragraph 5(c).
8. LOANS OR GUARANTEE OF LOANS.
The Committee may authorize the extension of a loan to an
optionee by the Company (or the guarantee by the Company of a loan obtained
by an optionee from a third party) in order to assist an optionee to
exercise an option granted under the Plan. The terms of any Loans or
guarantees, including the interest rate, if any, and terms of repayment,
will be subject to the discretion of the Committee. Loans and guarantees
may be granted with or without security, the maximum credit available being
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the exercise price of the option sought to be executed plus any tax
liability incurred upon exercise of the option.
9. TERMINATION AND NEW GRANT OF OPTIONS OR RIGHTS.
The Committee shall have the authority to effect, at any time and
from time to time, with the consent of the affected holders, the
termination of any or all outstanding options or Rights under the Plan and
to grant in substitution therefor new options or Rights under the Plan
covering the same or different numbers of shares of Stock. The option
price of substituted options and the exercise price of substituted Rights
shall be determined by the Committee subject to the requirements of
Paragraph 5(a) and Paragraph 7(b), respectively.
10. USE OF PROCEEDS.
Proceeds realized from the exercise of options granted under the
Plan shall constitute general funds of the Company.
11. PURCHASE FOR INVESTMENT.
Except as hereafter provided, the holder of an option or Right
granted hereunder shall, upon any exercise thereof, execute and deliver to
the Company a written statement, in form satisfactory to the Company, in
which such holder represents and warrants that such holder is purchasing or
acquiring all shares of Stock acquired thereunder for such holder's own
account, for investment only and not with a view to the resale or
distribution of any of such shares. Any resale or distribution of such
shares shall he made only pursuant to either (a) a current and effective
registration statement on an appropriate form under the Securities Act of
1933, as amended (the "Securities Act"), or (b) a specific exemption from
the registration requirements of the Securities Act, but in claiming such
exemption the holder shall, prior to any offer of sale or sale of such
shares, obtain a favorable written opinion, in form and substance
satisfactory to the Company, from counsel for or approved by the Company,
as to the application of such exemption thereto. The foregoing restriction
shall not apply to (i) issuances by the Company so long as the shares being
issued are registered under the Securities Act and a prospectus in respect
thereof is current or (ii) reofferings of shares by "affiliates" of the
Company (as such term is defined in Rule 405 or any successor rule or
regulation promulgated under the Securities Act) if the shares being
reoffered are registered under the Securities Act and a prospectus in
respect thereof is current.
12. ISSUANCE OF CERTIFICATES, LEGENDS AND PAYMENT OF EXPENSES.
(a) Upon any exercise of an option or Right which may be granted
hereunder and, in the case of an option, payment of the option price, a
certificate or certificates for the shares of Stock as to which the option
or Right has been exercised shall be issued by the Company in the name of
the person exercising the option or Right and shall be delivered to or upon
the order of such person or persons, as permitted by state or federal
securities law.
(b) The Company may place such legend or legends upon the
certificates for shares of Stock issued upon exercise of an option or Right
granted hereunder, and the Committee may issue such "stop transfer"
instructions to its transfer agent in respect of such shares, as the
Committee, in its discretion, determines to be necessary or appropriate to
(i) prevent a violation of, or to perfect an exemption from the
registration requirements of, the Securities Act, or (ii) implement the
provisions of any agreement between the Company and the Optionee or grantee
with respect to such shares.
(c) The Company shall pay all issue or transfer taxes with
respect to the issuance or transfer of shares of Stock, as well as all fees
and expenses necessarily incurred by the Company in connection with such
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issuance or transfer, except fees and expenses which may be necessitated by
the filing or amending of a registration statement under the Securities
Act, which fees and expenses shall be borne by the recipient of the shares
unless such registration statement has been filed by the Company for its
own corporate purposes (and the Company so states) in which event the
recipient of the shares shall bear only such fees and expenses as are
attributable solely to the inclusion of such shares in the registration
statement.
(d) All shares of Stock issued as provided herein shall be fully
paid and non-assessable to the extent permitted by law.
13. WITHHOLDING TAXES.
(a) The Company may require an optionee exercising a Right or
option granted hereunder to reimburse the corporation which employs such
optionee for any taxes required by any government to be withheld or
otherwise deducted and paid by such corporation in respect of the issuance
of shares of Stock. In lieu thereof, the corporation which employs such
optionee shall have the right to withhold the amount of such taxes from any
other sums due or to become due from such corporation to the optionee upon
such terms and conditions as the Committee shall prescribe.
(b) The Committee may, in its discretion, permit an optionee to
satisfy the optionee's tax withholding obligations under Paragraph 13(a),
in whole or in part, by tendering to the Company shares of Stock acquired
in the option exercise having a fair market value, computed in accordance
with paragraph 5(c), equal to the amount which would otherwise be withheld.
Optionees wishing to have all or any portion of their tax obligation
satisfied in such manner must notify the Corporate Secretary of the Company
of such fact in writing on or before the exercise date of the option.
14. LISTING OF SHARES AND RELATED MATTERS.
If at any time the Board of Directors shall determine in its
discretion that the listing, registration or qualification of the shares of
Stock covered by the Plan upon any national securities exchange or under
any state or federal law, or the consent or approval of any governmental
regulatory body, is necessary or desirable as a condition of, or in
connection with, the sale or Purchase of shares under the Plan, no shares
shall be delivered unless and until such listing, registration,
qualification, consent or approval shall have been effected or obtained, or
otherwise provided for, free of any conditions not acceptable to the Board
of Directors.
15. AMENDMENT, SUSPENSION, OR TERMINATION OF THE PLAN.
(a) The Board of Directors may at any time suspend or terminate
the Plan, and may amend it from time to time in such respects as the Board
may deem advisable; provided, however, except as provided in paragraph 2(b)
hereof, the Board of Directors shall not amend the Plan in the following
respects without the consent of stockholders then sufficient to approve the
Plan in the first instance:
(i) To increase the maximum number of shares of Stock
subject to the Plan; or
(ii) To change the designation or class of persons eligible
to receive options or Rights under the Plan.
(b) Unless the Plan theretofore shall have been terminated, the
Plan shall terminate on March 31, 2000. No option or Right may be granted
under any suspension or after the termination of the Plan, and no
amendment, suspension or termination of the Plan shall, without the
holder's consent, alter or impair any rights or obligations under any
option or Right theretofore granted to him under the Plan.
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16. GOVERNING LAW.
The Plan, such options and Rights as may be granted hereunder and
all related matters shall be governed by, and construed and enforced in
accordance with, the laws of the State of Arkansas from time to time
obtaining.
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