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TYSON FOODS, INC. EMPLOYEE STOCK PURCHASE PLAN

Stock Purchase Agreement

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TYSON FOODS INC

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Title: TYSON FOODS, INC. EMPLOYEE STOCK PURCHASE PLAN
Governing Law: Delaware     Date: 11/20/2008
Industry: Food Processing     Sector: Consumer/Non-Cyclical

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EXHIBIT 10.41

 

 

 

 

 

 

 

 

TYSON FOODS, INC.

EMPLOYEE STOCK PURCHASE PLAN

 

(As Amended and Restated as of October 1, 2008)

TYSON FOODS, INC.

EMPLOYEE STOCK PURCHASE PLAN

 

TABLE OF CONTENTS

PURPOSE OF THE PLAN

1

 

ARTICLE I Definitions

1

 

 

1.1 Affiliate

1

 

 

1.2 Base Earnings

1

 

 

1.3 Committee

1

 

 

1.4 Effective Date

1

 

 

1.5 Eligible Employee

1

 

 

1.6 Employer

1

 

 

1.7 Leave of Absence

1

 

 

1.8 Pay Period, Payday

2

 

 

1.9 Participant

2

 

 

1.10 Participating Affiliate

2

 

 

1.11 Payroll Deduction Agreement

2

 

 

1.12 Plan Administrator

2

 

 

1.13 Prevailing Market Price

2

 

 

1.14 Service

3

 

 

1.15 Stock

3

 

 

1.16 Termination of Service

3

 

ARTICLE II Eligibility to Participate

3

 

ARTICLE III Employee Participation and Contributions

3

 

 

3.1 Voluntary, Non-Discriminatory Plan

3

 

 

3.2 How an Employee-Elects to Participate

3

 

 

3.3 Limits on Contribution

3

 

 

3.4 Voluntary Withdrawal from the Plan

4

 

 

3.5 Termination of Service Means Withdrawal from Plan

4

 

 

3.6 Effect of Participant’s Withdrawal from Plan

4

 

 

3.7 Bookkeeping Accounts

4

 

 

3.8 Distributions from Plan Upon Termination of Service

4

 

 

3.9 Repurchases

5

 

ARTICLE IV Employer Contributions

5

 

 

4.1 Employer Matching Contributions

5

 

 

4.2 Employer Discretionary Non-matching Contributions

6

 

ARTICLE V Administration of the Plan

6

 

 

5.1 Administrative Committee

6

 

 

5.2 Employer Contributions of Cash and Dividends

7

 

 

5.3 Investment in Tyson Stock

7

 

 

5.4 No Interest to be Paid

7

 

 

5.5 Dividends to be Used to Purchase Additional Shares

7

 

 

5.6 Not Transferable

8

 

 

5.7 Voting Rights

8

 

 

5.8 Costs of the Plan

8

 

 

5.9 Brokerage Costs

8

 

 

5.10 Indemnification

8

 

ARTICLE VI Reports and Delivery of Share Certificates

8

 

 

6.1 Quarterly Reports

8

 

 

6.2 Delivery of Share Certificates

8

 

ARTICLE VII Amendment and Termination of the Plan

9

 

ARTICLE VIII Adjustments Upon Changes in Stock

9

 

ARTICLE IX Miscellaneous Provisions

10

 

 

9.1 No Contract of Employment Intended

10

 

 

9.2 Information Available

10

 

 

9.3 Securities Laws Restrictions

10

 

 

9.4 Waiver

10

 

 

9.5 Notices

11

 

 

9.6 Severability

11

 

 

9.7 Governing Law

11

 

 

9.8 Rules of Construction

11

 

 

9.9 Plan Year

11

 

 

9.10 Designation of Beneficiary

11

 

 

9.11 Lost Participants

11

TOC62

 

PURPOSE OF THE PLAN

 

The purpose of the Tyson Foods, Inc. Employee Stock Purchase Plan (the “Plan”) is to provide the employees of Tyson Foods, Inc. (“Tyson”) and its Participating Affiliates a convenient way to acquire shares of Tyson’s Class A Common Stock through periodic investment and thus maintain and stimulate employee interest in the growth and profitability of Tyson by means of an opportunity to share in a proprietary interest in Tyson. The purpose of this amendment and restatement of the Plan is to incorporate all prior amendments to the Plan since it was last amended and restated as effective August 1, 2003. This amendment and restatement is effective as of October 1, 2008.

 

ARTICLE I

Definitions

 

1.1        Affiliate . “Affiliate” shall include all wholly-owned subsidiaries of Tyson and any other entity which may be designated from time to time as such by the Board of Directors of Tyson.

 

1.2        Base Earnings . “Base Earnings” means the amount of regular salary or wages, including overtime payments and commission payments, but does not include discretionary and non-discretionary bonuses or other irregular payments made by an Employer to a Participant.

 

1.3        Committee . “Committee” shall mean the administrative committee appointed by the Board of Directors of Tyson to carry out the purposes of the Plan as set forth in Section 5.1 below.

 

1.4        Effective Date . The “Effective Date” of this Plan, as amended and restated, is October 1, 2008.

 

1.5        Eligible Employee . “Eligible Employee” means any person (including a corporate officer) who is employed as a common law employee and classified as working in the regular service of Tyson or a Participating Affiliate; provided, however, such term shall not include any person who is a member of a collective bargaining unit and who is covered by a collective bargaining agreement which does not provide for coverage of such person under this Plan.

 

 

1.6

Employer . “Employer” means Tyson and all Participating Affiliates.

 

1.7        Leave of Absence . “Leave of Absence” means absence from the active service with Tyson or an Affiliate, with the permission of the Employer, by reason of illness, military service, or for any other reason as approved or allowed by the Employer’s personnel policies. Such Leave of Absence will not terminate an Eligible Employee’s Service, provided he returns to active employment at the expiration of his leave in accordance with his Employer’s policy with respect to permitted absences. An Eligible

Employee whose Service is terminated and who is subsequently re-employed by Tyson or an Affiliate will, for all purposes of the Plan, be considered a new employee as of the effective date of his reemployment.

 

1.8        Pay Period, Payday . “Pay Period” means the interval of a time for which an Eligible Employee regularly receives his compensation, and “Payday” means the day on which the Eligible Employee regularly receives his compensation for the Pay Period.

 

1.9        Participant . “Participant” means an Eligible Employee who has elected to participate in the Plan in accordance with Article II until the Participant withdraws from the Plan and receives a complete distribution of Stock and cash credited to his Plan account.

 

1.10      Participating Affiliate . “Participating Affiliate” means an Affiliate that has adopted the Plan with the consent of the Board of Directors of Tyson. If an organization which is or has become an Affiliate ceases to be an Affiliate, such organization shall be deemed to have withdrawn from participation in the Plan.

 

1.11      Payroll Deduction Authorization . The “Payroll Deduction Authorization” shall be in a form specified by the Plan Administrator and shall direct the Employer to withhold from a Participant’s paycheck a specified dollar amount or a specified percentage of his Base Earnings to be used for the purchase of Stock under this Plan.

 

1.12      Plan Administrator . The “Plan Administrator” shall be responsible for the administration of the Plan and, in lieu of any designation by the Board of Directors of Tyson to the contrary, Tyson shall serve as the Plan Administrator and shall act through the Committee as its representative.

 

 

1.13

Prevailing Market Price . The term “Prevailing Market Price” shall mean:

 

 

(a)

the actual purchase price if purchased in the open market; or

 

 

(b)

if treasury shares are purchased:

(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 Prevailing Market Price 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 Tyson 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 Prevailing Market Price shall be the reported closing sale price of the Stock on the date in question on the principal exchange on which the Stock is then listed or admitted to trading. 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 Prevailing Market Price.

(c)       if a combination of treasury shares and shares purchased in the open market are utilized, then the Prevailing Market Price shall be determined by the actual purchase(s).

 

1.14      Service . “Service” means that period of continuous uninterrupted employment with Tyson or any one or more of its Affiliates from an Eligible Employee’s first day of employment until his date of termination of employment with all Affiliates. However, in the case of an Affiliate which has been acquired by Tyson through the acquisition of substantially all of the assets or all of the stock of the Affiliate, Service shall include employment prior to the date on which such Affiliate is designated as a Participating Affiliate on such terms as the Board of Directors of Tyson may expressly provide. Service with two or more Affiliates during consecutive periods shall be considered continuous service with one Affiliate.

 

1.15      Stock . All references herein to “Stock” shall mean shares of Class A Common Stock of Tyson.

 

1.16      Termination of Service . “Termination of Service” means any absence from the employment of Tyson or any Affiliate (including, but not limited to, absences by reason of discharge or resignation) which is not deemed a Leave of Absence as defined herein.

 

ARTICLE II

Eligibility to Participate

 

Except as provided below, each Eligible Employee of Tyson or of a Participating Affiliate who has completed three full calendar months of Service shall be eligible to participate in the Plan commencing on the first Payday that falls on or after the first day of the immediately succeeding month.

 

ARTICLE III

Employee Participation and Contributions

 

3.1        Voluntary, Non-Discriminatory Plan . Participation in this Plan shall be voluntary and all Participants shall have the same rights and privileges under the Plan, except to the extent the terms of the Plan otherwise provide.

 

3.2        How an Employee Elects to Participate . Except as provided in Sections 3.9 and 4.2 below, an Eligible Employee may elect to participate in the Plan by executing or otherwise authorizing a “Payroll Deduction Authorization” (within the time period prescribed by the Plan Administrator) prior to the Payday on which the Eligible Employee will begin participation. By confirming a Payroll Deduction Authorization, an Eligible Employee also affirms his acceptance of the terms of this Plan.

3.3        Limits on Contribution . The minimum payroll deduction shall be one dollar ($1.00) per week and the maximum shall be twenty-five dollars ($25.00) per week, as the

Participant shall elect, or, in the alternative, the minimum payroll deduction shall be one percent (1%) of Base Earnings and the maximum shall be twenty percent (20%) of Base Earnings. At such times as permitted by the Plan Administrator, a Participant may increase or decrease his contribution under the Plan by any multiple of one dollar ($1.00) or one percent (1%); however, no Eligible Employee may contribute, in any one year, more than twenty percent (20%) of his Base Earnings or, if he elects a payroll deduction of a specific dollar amount, twenty-five dollars ($25.00) per week.

3.4        Voluntary Withdrawal from the Plan . A Participant who remains employed by an Employer may withdraw from the Plan by submitting a notice of cancellation of his Payroll Deduction Authorization in the manner and to the person determined by the Plan Administrator from time to time, but no later than prior to the Payday for which the cancellation is to be effective. Any Participant who so withdraws from the Plan may renew his participation in the Plan as soon as administratively practicable and will be entitled to withdraw his Stock from the Plan only in accordance with Section 6.2.

3.5        Termination of Service Means Withdrawal from Plan . Upon a Participant’s Termination of Service, the Participant will be deemed to have withdrawn from the Plan as of his last regular Payday.

3.6        Effect of Participant’s Withdrawal from Plan . On and after the effective date of a Participant’s withdrawal from the Plan, no further contribution under the Plan shall be permitted by or made for the Participant, except as may be provided pursuant to this Section 3 and Section 4.2 below.

3.7        Bookkeeping Accounts . All payroll deductions made for a Participant shall be credited to the Participant’s Plan account. Such payroll deductions shall be commingled with the general assets of Tyson and no separate fund shall be established. Participant accounts are kept solely for bookkeeping purposes.

 

3.8        Distributions from Plan Upon Termination of Service . Upon a Participant’s Termination of Service for any reason other than death, the Committee shall obtain a share certificate representing the number of shares of Stock to which the Participant is entitled and shall send the share certificate and a check for the sum of uninvested funds held to the credit of such Participant, by ordinary mail or other mode of delivery deemed appropriate by the Committee, to the Participant’s mailing address last known to the Employer. Upon the death of a Participant and upon receipt by the Employer of proof of identity and existence at the Participant’s death of a validly designated beneficiary under the Plan, the Committee shall obtain and forward the share certificate and check for uninvested funds in the manner provided above to such beneficiary. In the event of the death of a Participant and in the absence of a beneficiary validly designated under the Plan who is living at the time of such death, any Stock and cash credited to the Participant under the Plan shall be payable to the spouse to whom the Participant was legally married at the time of his or her death and, if the deceased Participant is not survived by a spouse to whom he or she was legally married at the time of the Participant’s death, any such Stock and cash shall be payable to the executor or administrator of the estate of the Participant. No beneficiary shall, prior to the death of the Participant by whom he or she has been designated,

acquire any interest in the Stock or cash credited to the Participant under the Plan. Following a Termination of Service, a Participant (or beneficiary) shall have the continuing obligation of keeping the Plan Administrator apprised of his or her current mailing address.

 

3.9        Repurchases . Prior to the date that a Participant experiences a Termination of Service and for a limited period of time following a Termination of Service, as established by the Plan Administrator from time to time pursuant to procedures uniformly applied, a Participant may sell shares of Stock purchased under the Pl


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