As filed with the Securities and Exchange Commission on August 28, 1997
File No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SMITHFIELD FOODS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 52-0845861
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
999 WATERSIDE DRIVE, SUITE 900, NORFOLK, VA 23510
(Address of principal executive office, including zip code)
SMITHFIELD FOODS, INC.
1992 STOCK INCENTIVE PLAN
(Full Title of the Plan)
Aaron D. Trub, Secretary
Michael H. Cole, Assistant Secretary
SMITHFIELD FOODS, INC.
999 Waterside Drive, Suite 900, Norfolk, VA 23510
(Name and address of agent for service)
(757) 365-3000
(Telephone number, including area code, of agent for service)
<PAGE>
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CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Title of Each Class of Amount to Offering Aggregate Amount of
Securities to be be Price Offering Registration
Registered Registered Per Share Price Fee
(1) (2) (3)
- ---------------------- ---------- --------- ------------ -------------
Common Stock, par
value $0.50 per
share . . . . . . . 1,250,000 $50.50 $63,125,000 $19,128.79
shares
Rights to Purchase
Series A Junior
Participating
Preferred Stock,
par value $1.00
per share . . . . . 1,250,000
rights(4)
- --------------
(1) Pursuant to Rule 416(a), also covers additional securities that may be
offered as a result of stock splits, stock dividends or similar
transactions.
(2) Estimated solely for the purpose of determining the registration
fee.
(3) Calculated pursuant to Rule 457(c) based upon the average of the high
and low prices of the Common Stock on the Nasdaq National Market on
August 22, 1997, which was $50 1/2.
(4) The Rights to Purchase Series A Junior Participating Preferred Stock
will be attached to and trade with shares of Common Stock of the
Registrant. Value attributed to such Rights, if any, is reflected in
the market price of the shares of Common Stock. Accordingly, no
separate fee is paid.
<PAGE>
INTRODUCTION
This Registration Statement on Form S-8 is filed by Smithfield Foods, Inc., a
Delaware corporation (the "Corporation" or the Registrant"), relating to
1,250,000 shares of its common stock, par value $0.50 per share (the "Common
Stock") issuable to eligible employees of the Corporation under the Smithfield
Foods, Inc. 1992 Stock Incentive Plan (the "Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
- --------------------------
Not required to be filed as part of this Registration Statement pursuant to Note
to Part 1 of Form S-8.
Item 2. Registrant Information and Employee Plan
Annual Information
- --------------------------------------------------
Not required to be filed as part of this Registration Statement pursuant to Note
to Part 1 of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
- -------------------------------------------------
The following documents of the Registrant heretofore filed with the Securities
and Exchange Commission (the "Commission") are hereby incorporated in this
Registration Statement by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal
year ended April 27, 1997;
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by Registrant's
Annual Report on Form 10-K referred to in (1) above; and
<PAGE>
(3) The description of the Common Stock (including the Rights
associated therewith) set forth in Amendment No. 1 amending
and restating the Registrant's Registration Statement on Form
8-A, as filed with the Commission pursuant to Section 12 of
the Exchange Act on May 23, 1991, together with any amendment
or report filed with the Commission for the purpose of
updating such description.
All reports and other documents subsequently filed by the Registrant pursuant to
Sections 13(a) and (c), 14 and 15(d) of the Exchange Act prior to the filing of
a post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all such securities then remaining unsold
shall be deemed to be incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing of such reports and documents.
Any statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
earlier statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities
- -----------------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
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Not applicable.
<PAGE>
Item 6. Indemnification of Directors and Officers
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Section 145 of the Delaware General Corporation Law (the "DGCL") makes provision
for the indemnification of officers and directors of corporations in terms
sufficiently broad to indemnify the officers and directors of the Corporation
under certain circumstances from liabilities (including reimbursement of
expenses incurred) arising under the Securities Act. Section 102(b)(7) of the
DGCL permits a corporation to provide in its Certificate of Incorporation that a
director of the corporation shall not be personally liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) in respect of certain unlawful dividend payments or stock redemptions
or repurchases, or (iv) for any transaction from which the director derived an
improper personal benefit.
As permitted by the DGCL, the Corporation's Certificate of Incorporation (the
"Charter") provides that, to the fullest extent permitted by the DGCL or
decisional law, no director shall be personally liable to the Corporation or to
its stockholders for monetary damages for breach of his fiduciary duty as a
director. The effect of this provision in the Charter is to eliminate the rights
of the Corporation and its stockholders (through stockholders' derivative suits
on behalf of the Corporation) to recover monetary damages against a director for
breach of fiduciary duty as a director thereof (including breaches resulting
from negligent or grossly negligent behavior) except in the situations described
in clauses (i)-(iv), inclusive, above. These provisions will not alter the
liability of directors under federal securities laws.
<PAGE>
The Corporation's By-Laws (the "By-Laws") provide that no person shall be liable
to the Corporation for loss or damage suffered by it on account of any action
taken or omitted to be taken by such person in good faith as an officer of the
Corporation, or of any other corporation which he serves as an officer at the
request of the Corporation, if such person (a) exercised and used the same
degree of care and skill as a prudent person would have exercised or used under
the circumstances in the conduct of his own affairs, or (b) took or omitted to
take such action in reliance upon advice of counsel for the Corporation or upon
statements made or information furnished by officers or employees of the
Corporation which he had reasonable grounds to believe. The liabilities of
directors of the Corporation for actions taken or omitted to be taken by them in
their capacity as such shall be governed by the relevant provisions of the
Charter, and to the extent consistent therewith, by the By-Laws. The By-Laws
also provide that the foregoing is not exclusive of other rights and defenses to
which such person may be entitled as a matter of law.
The By-Laws also provide that the Corporation shall indemnify, and shall make
advance payment of litigation expenses to, in each case to the fullest extent
permitted by law, any person made, or threatened to be made, a party to any
pending, threatened or completed action, suit or proceeding (whether civil,
criminal, administrative, arbitrative or investigative) by reason of the fact
that he, his testator, or intestate is or was a director, officer or employee of
the corporation.
Item 7. Exemption from Registration Claimed
- --------------------------------------------
Not applicable.
Item 8. Exhibits
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Unless otherwise indicated below as being incorporated by reference to another
filing of the Corporation with the Commission, each of the following exhibits is
filed herewith:
4.1 Composite Certificate of Incorporation of the Corpora-
tion, as amended to date (incorporated by reference to
Exhibit 3.1 to the Corporation's Form 10-K Annual Report
for the fiscal year ended April 28, 1991).
<PAGE>
4.2 Form of Certificate representing the Corporation's Common
Stock, par value $0.50 per share (including Rights
legend) (incorporated by reference to Exhibit 4.2 to the
Corporation's Form 10-K Annual Report for the fiscal year
ended April 28, 1991).
4.3 Form of Certificate representing Rights (incorporated by
reference to Exhibit 4 to the Corporation's Amendment No.
1 to Registration Statement on Form 8-A dated May 23,
1991).
4.4 Rights Agreement dated May 8, 1991, as amended by
Amendment No. 1 dated as of January 31, 1994, by and
between the Corporation and First Union National Bank of
North Carolina, Rights Agent (incorporated by reference
to Exhibit 4.5 to the Corporation's Form 10-K Annual
Report for the fiscal year ended May 1, 1994).
4.5 By-Laws of the Corporation, as amended to date
(incorporated by reference to Exhibit 3.2 to the
Corporation's Form 10-K Annual Report for the fiscal year
ended April 28, 1996).
5 Opinion of Michael H. Cole, Esq., Corporate Counsel of
Smithfield Foods, Inc. (filed herewith).
23.1 Consent of Arthur Andersen LLP (filed herewith).
23.2 Consent of Michael H. Cole, Esq., Corporate Counsel of
Smithfield Foods, Inc. (contained in Exhibit 5).
24 Powers of attorney (included herein).
99 Smithfield Foods, Inc. 1992 Stock Incentive Plan (filed
herewith).
Item 9. Undertakings
- ----------------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act;
<PAGE>
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most recent
post-effective amendment thereof) which, indi-
vidually or in the aggregate, represent a
fundamental change in the information set
forth in the registration statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement.
Provided, however, that paragraphs (a)(1)(i)and
(a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
<PAGE>
(c) Insofar as indemnification for liabilities under the
Securities Act may be permitted to directors, officers
and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or
controlling person in connection with the securities
being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such
issue
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Corporation
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Norfolk, Commonwealth of Virginia, on August 28,
1997.
SMITHFIELD FOODS, INC.
/s/ Aaron D. Trub
-------------------------------
By: Aaron D. Trub
Vice President, Secretary
and Treasurer, and
Director
Each person whose signature appears below constitutes and appoints Aaron D. Trub
and Michael H. Cole, and each of them, his true and lawful attorneys-in-fact and
agents, each with full power of substitution and resubstitution, severally, for
him and in his name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
Signature Title Date
- --------------------------- --------------------- -------------
/s/Joseph W. Luter, III Chairman of the August 28, 1997
- ----------------------- Board and Chief
Joseph W. Luter, III Executive Officer,
and Director
(Principal Executive
Officer)
<PAGE>
/s/Lewis R. Little President and August 28, 1997
- ---------------------- Chief Operating
Lewis R. Little Officer, and
Director
/s/Aaron D. Trub Vice President, August 28, 1997
- ---------------------- Secretary and
Aaron D. Trub Treasurer, and
Director
(Principal Financial
Officer)
/s/C. Larry Pope Vice President August 28, 1997
- ---------------------- and Controller
C. Larry Pope (Principal Accounting
Officer)
/s/Robert L. Burrus, Jr. Director August 28, 1997
- -----------------------
Robert L. Burrus, Jr.
/s/F. J. Faison, Jr. Director August 28, 1997
- -----------------------
F. J. Faison, Jr.
/s/Joel W. Greenberg Director August 28, 1997
- -----------------------
Joel W. Greenberg
Director August __, 1997
- -----------------------
Cecil W. Gwaltney
/s/George E. Hamilton, Jr. Director August 28, 1997
- -----------------------
George E. Hamilton, Jr.
/s/Richard J. Holland Director August 28, 1997
- -----------------------
Richard J. Holland
/s/Roger R. Kapella Director August 28, 1997
- -----------------------
Roger R. Kapella
/s/H. Gordon Maxwell, III Director August 28, 1997
- -----------------------
H. Gordon Maxwell, III
<PAGE>
Director August __, 1997
- -----------------------
Wendell H. Murphy
Director August __, 1997
- -----------------------
William H. Prestage
/s/Joseph B. Sebring Director August 28, 1997
- -----------------------
Joseph B. Sebring
<PAGE>
EXHIBIT INDEX
5 Opinion of Michael H. Cole, Esq., Corporate
Counsel of Smithfield Foods, Inc. (filed herewith).
23.1 Consent of Arthur Andersen LLP (filed herewith).
23.2 Consent of Michael H. Cole, Esq., Corporate
Counsel of Smithfield Foods, Inc. (contained in
Exhibit 5).
99 Smithfield Foods, Inc. 1992 Stock Incentive
Plan (filed herewith).
Exhibit 5
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August 28, 1997
Smithfield Foods, Inc.
999 Waterside Drive
Suite 900
Norfolk, Virginia 23510
Ladies and Gentlemen:
I refer to an aggregate of 1,250,000 shares of Common Stock, par value $0.50 per
share (the "Shares"), of Smithfield Foods, Inc., a Delaware corporation (the
"Corporation"), and 1,250,000 Rights to Purchase Series A Junior Participating
Preferred Stock, par value $1.00 per share (the "Rights"), each of which are the
subject of a registration statement on Form S-8 (the "Registration Statement")
to be filed with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Act"). The Shares (and the Rights
associated therewith) subject to the Registration Statement are to be issued
under the Smithfield Foods, Inc. 1992 Stock Incentive Plan (the "Plan").
I have examined the originals, or a photostatic or certified copies, of such
records of the Corporation, certificates of officers of the Corporation and of
public officials and of such other documents as I have determined relevant and
necessary as the basis for the opinion set forth below. In such examination, I
have assumed the genuineness of all signatures, the authenticity of all
documents submitted to me as originals, the conformity to original documents of
all documents submitted to me as certified or photostatic copies and the
authenticity of the originals of such copies.
Based upon my examination mentioned above, I am of the opinion that the Shares
(and the Rights associated therewith) have been validly authorized for issuance
and, when issued and sold in
<PAGE>
accordance with the terms set forth in the Registration Statement and the Plan,
and, when (a) the Registration Statement has become effective under the Act, (b)
the pertinent provisions of any applicable state securities law have been
complied with, and (c) in the case of options issued under the Plan, the Shares
have been paid for, the Shares (and the Rights associated therewith) so issued
will be legally issued and will be fully paid and nonassessable.
This opinion is limited to the laws of the Commonwealth of Virginia and the
General Corporation Law of the State of Delaware, and I disclaim any opinion as
to the laws of any other jurisdiction. I further disclaim any opinion as to any
statute, rule, regulation, ordinance, order or other promulgation of any other
jurisdiction or any regional or local governmental body or as to any related
judicial or administrative opinion. I express no opinion as to the applicable
choice of law provisions contained in the Plan.
This opinion is rendered to you in connection with the issuance of the Common
Stock and is solely for your benefit. This opinion may not be relied upon by any
other person, firm, corporation or other entity for any purpose, without prior
written consent.
I hereby consent to the filing of this opinion as Exhibit 5 to the Registration
Statement.
Very truly yours,
/s/ MICHAEL H. COLE
- -------------------------
Michael H. Cole, Esq.
Corporate Counsel
Smithfield Foods, Inc.
Exhibit 23.1
------------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-8 of our reports dated
June 6, 1997, with respect to the consolidated financial statements and schedule
of Smithfield Foods, Inc. and subsidiaries incorporated by reference and filed
as a part of Registrant's Annual Report on Form 10-K for the fiscal year ended
April 27, 1997, and to all references to our firm in this Registration
Statement.
/s/ ARTHUR ANDERSEN LLP
-----------------------
Arthur Andersen LLP
Richmond, Virginia
August 28, 1997
Exhibit 99
SMITHFIELD FOODS, INC.
1992 STOCK INCENTIVE PLAN
(As Amended and Restated)
1. PURPOSE. The Smithfield Foods, Inc. 1992 Stock Incentive Plan (the
"Plan") was adopted May 20, 1992 and approved by stockholders on September 2,
1992. The Plan as amended and restated was adopted April 13, 1994 subject to
stockholder approval as to the amendments to the Plan. The Plan was adopted to
further the long term stability and financial success of Smithfield Foods, Inc.
(the "Company") by attracting and retaining key employees through the use of
stock incentives. It is believed that ownership of Common Stock will stimulate
the efforts of eligible participants upon whose judgment and interest the
Company is and will be largely dependent for the successful conduct of its
business. It is also believed that Options granted to such participants under
this Plan will strengthen their desire to remain with and provide services to
the Company and will further the identification of their interests with those of
the Company's stockholders.
The Plan is intended to conform to the provisions of Securities and
Exchange Commission Rule 16b-3 ("Rule 16b-3").
2. DEFINITIONS. As used in the Plan, the following terms
have the meanings indicated:
(a) "Board" means the board of directors of the
Company.
<PAGE>
(b) "Change of Control" means:
(i) The acquisition, other than from the Company, by
any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended, of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Securities Exchange Act of
1934) of 20% or more of either the then outstanding shares of
Common Stock of the Company or the combined voting power of
the then outstanding voting securities of the Company entitled
to vote generally in the election of directors, but excluding
for this purpose, any such acquisition by the Company or any
of its subsidiaries, or any employee benefit plan (or related
trust) of the Company or its subsidiaries, or any corporation
with respect to which, following such acquisition, more than
50% of, respectively, the then outstanding shares of Common
Stock of such corporation and the combined voting power of the
then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is
then beneficially owned, directly or indirectly, by the
individuals and entities who were the beneficial owners,
respectively, of the Common Stock and voting securities of the
Company immediately prior to such acquisition in substantially
the same proportion as their ownership, immediately
-2-
<PAGE>
prior to such acquisition, of the then outstanding shares of
Common Stock of the Company or the combined voting power of
the then outstanding voting securities of the Company entitled
to vote generally in the election of directors, as the case
may be; or
(ii) Individuals who, as of the date hereof,
constitute the Board (as of the date hereof the "Incumbent
Board") cease for any reason to constitute at least a majority
of the Board, provided that any individual becoming a director
subsequent to the date hereof whose election or nomination for
election by the Company's stockholders was approved by a vote
of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual
were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of
office is in connection with an actual or threatened election
contest relating to the election of the Directors of the
Company (as such terms are used in Rule 14a-11 of Regulation
14A promulgated under the Securities Exchange Act of 1934); or
(iii) Approval by the stockholders of the Company of
a reorganization, merger or consolidation, in each case, with
respect to which the individuals and entities who were the
respective beneficial owners of the Common Stock and voting
securities of the Company
-3-
<PAGE>
immediately prior to such reorganization, merger or
consolidation do not, following such reorganization, merger or
consolidation, beneficially own, directly or indirectly, more
than 50% of, respectively, the then outstanding shares of
Common Stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in
the election of directors, as the case may be, of the
corporation resulting from such reorganization, merger or
consolidation, or a complete liquidation or dissolution of the
Company or of its sale or other disposition of all or
substantially all of the assets of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as
amended.
(d) "Company" means Smithfield Foods, Inc., a Delaware
corporation.
(e) "Common Stock" means Common Stock, $.50 par value, of the
Company. If the par value of the Common Stock is changed, or in the
event of a change in the capital structure of the Company (as provided
in Section 11), the shares resulting from such a change shall be deemed
to be Common Stock within the meaning of the Plan.
(f) "Committee" means the committee appointed by the
Board as described under Section 12.
-4-
<PAGE>
(g) "Date of Grant" means the date on which an Option is
granted by the Committee or a later date specified by the Committee as
the date the grant is to become effective.
(h) "Disability" or "Disabled" means a mental or physical
condition that prevents a Participant from rendering the services for
which he was employed. The Committee shall determine whether a
Disability exists and such determination shall be conclusive.
(i) "Fair Market Value" means as of the Date of Grant (or, if
there were no trades on the Date of Grant, the last preceding day on
which Common Stock is traded) (i) if the Common Stock is traded on an
exchange the average of the highest and lowest registered sales prices
of the Common Stock at which it is traded on such day on the exchange
on which it generally has the greatest trading volume, or (ii) if the
Common Stock is traded on the over-the-counter market, the average
between the lowest and highest sales prices as reported by NASDAQ.
(j) "Insider" means a person subject to Section 16(b) of the
Securities Exchange Act of 1934.
(k) "Nonstatutory Stock Option" means an Option, which does
not meet the requirements of Section 422 of the Code, or even if
meeting the requirements of Section 422 of the Code, is not intended to
be an incentive stock option and is so designated.
-5-
<PAGE>
(l) "Option" means a right to purchase Common Stock granted
under the Plan, at a price determined in accordance with the Plan.
(m) "Parent" means, with respect to any corporation, a "parent
corporation" of that corporation within the meaning of Section 424(e)
of the Code.
(n) "Participant" means any person who receives an Option
under the Plan.
(o) "Rule 16b-3" means Rule 16b-3 of the Securities and
Exchange Commission promulgated under the Securities Exchange Act of
1934. A reference in the Plan to Rule 16b-3 shall include a reference
to any corresponding rule (or number redesignation) of any amendments
to Rule 16b-3 enacted after the effective date of the Plan's adoption.
(p) "Subsidiary" means, with respect to any corporation, a
"subsidiary corporation" of that corporation within the meaning of
Section 424(f) of the Code.
3. GENERAL. Options granted under the Plan shall be
Nonstatutory Stock Options.
4. STOCK. Subject to Section 11 of the Plan, there shall be reserved
for issuance under the Plan an aggregate of 1,250,000 shares of Common Stock,
which shall be authorized, but unissued shares. Shares allocable to options
awarded under the Plan, that expire or terminate unexercised may be subjected to
an Option under the Plan.
-6-
<PAGE>
5. ELIGIBILITY.
(a) All present and future management employees and other employees who
are in a position to contribute to the success of the Company (or any Parent or
Subsidiary of the Company, whether now existing or hereafter created or
acquired) shall be eligible to receive an Option under the Plan. The Committee
shall have the power and complete discretion, as provided in Section 12, to
select persons to receive Options and, subject to the provisions of Section 6,
to determine for each Participant the terms and conditions and the number of
shares to be allocated to each Participant as part of each Option.
(b) The grant of an Option shall not obligate the Company or any Parent
or Subsidiary of the Company to pay a Participant any particular amount of
remuneration, to continue the employment of the Participant after the grant or
to make further grants to the Participant at any time thereafter.
6. STOCK OPTIONS.
(a) Whenever the Committee deems it appropriate to grant Options,
notice shall be given to a Participant stating the number of shares for which
Options are granted and the conditions to which the grant and exercise of the
Options are subject. This notice, when duly accepted in writing by the
Participant, shall become a stock option agreement between the Company and the
Participant.
-7-
<PAGE>
(b) The exercise price of shares of Common Stock covered by an Option
shall be not less than 100% of the Fair Market Value of such shares on the Date
of Grant.
(c) Options not otherwise exercisable because the five-year period from
the date of grant has not expired will become automatically exercisable (i) if a
Change of Control occurs, or (ii) on the day immediately preceding the
Distribution Date under the amended Rights Agreement between the Company and
First Union National Bank of North Carolina, Rights Agent, dated as of January
31, 1994, as amended from time to time.
(d) Options may be exercised in whole or in part at such times as may
be specified by the Committee in the Participant's stock option agreement;
provided that the exercise provisions for Options shall in all events not be
more liberal than the following provisions:
(i) No Option shall be exercisable sooner than five years from
the Date of Grant.
(ii) No Option may be exercised after the first to occur of
(x) ten years from the Date of Grant, (y) three months following the
date of the Participant's retirement or termination of employment with
the Company and its Parent and Subsidiary corporations for reasons
other than Disability or death, or (z) one year following the date of
the Participant's termination of employment on account of Disability or
death.
-8-
<PAGE>
(iii) Except as otherwise provided in this paragraph, no
Option may be exercised unless the Participant is employed by the
Company or a Parent or Subsidiary of the Company at the time of the
exercise (or was so employed not more than three months before the time
of the exercise) and has been employed by the Company or a Parent or
Subsidiary of the Company at all times since the Date of Grant. If a
Participant's employment is terminated other than by reason of his
Disability or death at a time when the Participant holds an Option that
is exercisable (in whole or in part), the Participant may exercise any
or all of the exercisable portion of the Option (to the extent
exercisable on the date of termination) within three months after the
Participant's termination of employment. If a Participant's employment
is terminated by reason of his Disability at a time when the
Participant holds an Option that is exercisable (in whole or in part),
the Participant may exercise any or all of the exercisable portion of
the Option (to the extent exercisable on the date of Disability) within
one year after the Participant's termination of employment. If a
Participant's employment is terminated by reason of his death at a time
when the Participant holds an Option that is exercisable (in whole or
in part), the Option may be exercised (to the extent exercisable on the
date of death) within one year after the Participant's death by the
person to whom the
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Participant's rights under the Option shall have passed by
will or by the laws of descent and distribution.
(e) The maximum number of shares with respect to which Nonstatutory
Options may be granted in any calendar year to an employee eligible to
participate in the Plan is 100,000.
7. METHOD OF EXERCISE OF OPTIONS.
(a) Options may be exercised by written notice of the exercise given by
the Participant to the Company, stating the number of shares the Participant has
elected to purchase under the Option. Such notice shall be effective only if
accompanied by the exercise price in full in cash; provided that if the terms of
the Option so permit, the Participant may (i) deliver shares of Common Stock
that the Participant has owned for at least six months (valued at their Fair
Market Value at the date of exercise), or cause to be withheld from the Option
Shares, shares of Common Stock (valued at their Fair Market Value on the date of
exercise), in satisfaction of all or any part of the exercise price, or (ii)
deliver a properly executed exercise notice together with irrevocable
instructions to a broker to promptly deliver to the Company the amount of the
sale or loan proceeds to pay the exercise price.
(b) The Company may place on any certificate representing Common Stock
issued upon the exercise of an Option any legend deemed desirable by the
Company's counsel to comply with federal or state securities laws, and the
Company may require a customary written indication of the Participant's
investment intent. Until
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the Participant has made any required payment, including any applicable
withholding taxes, and has had issued a certificate for the shares of Common
Stock acquired, the Participant shall possess no stockholder rights with respect
to the shares.
(c) As an alternative to making a cash payment to the Company to
satisfy his tax withholding obligations, if the Option so provides or is amended
to so provide, the Committee may establish procedures permitting the Participant
to elect to (i) deliver shares of already owned Company Stock or (ii) have the
Company retain that number of shares of Company Stock that would satisfy all or
a specified portion of the Federal, state and local tax liabilities of the
employee arising in the year of its exercise upon the exercise of a Nonstatutory
Stock Option. Any such election shall be made only in accordance with procedures
established by the Committee.
(d) Notwithstanding anything herein to the contrary, Options shall
always be granted and exercised in such a manner as to conform to the provisions
of Rule 16b-3, or any replacement rule adopted, as the same now exists or may,
from time to time, be amended.
8. NONTRANSFERABILITY OF OPTIONS. Options, by their terms, shall not
be transferable except by will or by the laws of descent and distribution or, if
permitted by Rule 16b-3, pursuant to a Qualified Domestic Relations Order (as
defined in Section 414(p) of the Code ("QDRO") and shall be exercisable, during
the Participant's lifetime, only by the Participant or, if permitted
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by Rule 16b-3, an alternative payee under a QDRO or by his guardian, duly
authorized attorney-in-fact or other legal representative.
9. EFFECTIVE DATE OF THE PLAN. The Plan shall be effective on May 20,
1992 and shall be submitted to the stockholders of the Company for approval.
Until the Plan has been approved by the Company's stockholders, no Option shall
be exercisable.
10. TERMINATION, MODIFICATION, CHANGE. If not sooner terminated by the
Board, this Plan shall terminate at the close of business on May 19, 2002. No
Options shall be made under the Plan after its termination. The Board may
terminate the Plan or may amend the Plan in such respects as it shall deem
advisable; provided, that, if and to the extent required by Rule 16b-3, no
change shall be made that increases the total number of shares of Common Stock
reserved for issuance pursuant to Options granted under the Plan (except
pursuant to Section 11), materially modifies the requirements as to eligibility
for participation in the Plan, or materially increases the benefits accruing to
Participants under the Plan, unless such change is authorized by the
stockholders of the Company. Notwithstanding the foregoing, the Board may amend
the Plan and unilaterally amend Options as it deems appropriate to ensure
compliance with Rule 16b-3. Except as provided in the preceding sentence, a
termination or amendment of the Plan shall not, without the consent of the
Participant,
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detrimentally affect a Participant's rights under an Option
previously granted to him.
11. CHANGE IN CAPITAL STRUCTURE.
(a) In the event of a stock dividend, stock split or
combination of shares, recapitalization or merger in which the Company is the
surviving corporation or other change in the Company's capital stock (including,
but not limited to, the creation or issuance to stockholders generally of
rights, options or warrants for the purchase of Common Stock or preferred stock
of the Company), the number and kind of shares of stock or securities of the
Company to be subject to the Plan and to Options then outstanding or to be
granted thereunder, the maximum number of shares or securities which may be
delivered under the Plan, the exercise price and other relevant provisions shall
be appropriately adjusted by the Committee, whose determination shall be binding
on all persons. If the adjustment would produce fractional shares with respect
to any unexercised Option, the Committee may adjust appropriately the number of
shares covered by the Option so as to eliminate the fractional shares.
(b) If the Company is a party to a consolidation or a merger in which
the Company is not the surviving corporation, a transaction that results in the
acquisition of substantially all of the Company's outstanding stock by a single
person or entity, or a sale or transfer of substantially all of the Company's
assets, the Committee may take such actions with respect to outstanding Options
as the Committee deems appropriate.
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(c) Notwithstanding anything in the Plan to the contrary, the Committee
may take the foregoing actions without the consent of any Participant, and the
Committee's determination shall be conclusive and binding on all persons for all
purposes.
12. ADMINISTRATION OF THE PLAN. The Plan shall be administered by a
Committee consisting of not less than two Directors of the Company, who are
"outside directors", as that term is defined for purposes of Code section
162(m), who meet the requirements of paragraph (d) below and are appointed by
the Board. Subject to the foregoing requirements, the Committee shall be the
Compensation Committee unless the Board shall appoint another Committee to
administer the Plan. The Committee shall have general authority to impose any
limitation or condition upon an Option the Committee deems appropriate to
achieve the objectives of the Option and the Plan and, in addition, and without
limitation and in addition to powers set forth elsewhere in the Plan, shall have
the following specific authority:
(a) The Committee shall have the power and complete discretion
to determine (i) which Participants shall receive an Option, (ii) the
number of shares of Common Stock to be covered by each Option, (iii)
the fair market value of Common Stock, (iv) the time or times when an
Option shall be granted, (v) whether an Option shall become vested over
a period of time and, subject to the terms of the Plan, when it shall
be fully vested, (vi) whether a Disability exists,
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(vii) the manner in which payment will be made upon the exercise of
Options, (viii) conditions relating to the length of time before
disposition of Common Stock received upon the exercise of Options is
permitted, and (ix) any additional requirements relating to Options
that the Committee deems appropriate. The Committee shall also have the
power to amend the terms of previously granted Options so long as the
terms as amended are consistent with the terms of the Plan and provided
that the consent of the Participant is obtained with respect to any
amendment that would be detrimental to him, except that such consent
will not be required if such amendment is for the purpose of complying
with Rule 16b-3.
(b) The Committee may adopt rules and regulations for carrying
out the Plan. The interpretation and construction of any provision of
the Plan by the Committee shall be final and conclusive. The Committee
may consult with counsel, who may be counsel to the Company, and shall
not incur any liability for any action taken in good faith in reliance
upon the advice of counsel.
(c) A majority of the members of the Committee shall
constitute a quorum, and all actions of the Committee shall be taken by
a majority of the members present. Any action may be taken by a written
instrument signed by all of the members, and any action so taken shall
be fully effective as if it had been taken at a meeting.
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(d) The Board from time to time may appoint members previously
appointed and may fill vacancies, however caused, on the Committee.
Insofar as it is necessary to satisfy the requirements of Section 16(b)
of the Exchange Act, no member of the Committee shall be eligible to
participate in the Plan or in any other plan of the Company or any
Parent or Subsidiary of the Company that entitles Participants to
acquire stock, stock options or stock appreciation rights of the
Company or any Parent or Subsidiary of the Company, and no person shall
become a member of the Committee if, within the preceding one-year
period, the person shall have been eligible to participate in such a
plan (other than a "safe harbor plan" permitted under Rule
16b-3(C)(2)(i) and (ii)).
13. NOTICE. All notices and other communications required or permitted
to be given under this Plan shall be in writing and shall be deemed to have been
duly given if delivered personally or mailed first class, postage prepaid, as
follows (a) if to the Company - at its principal business address to the
attention of the Treasurer; (b) if to any Participant - at the last address of
the Participant known to the sender at the time the notice or other
communication is sent.
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IN WITNESS WHEREOF, the Company has caused this Plan as amended and
restated to be executed this 13th day of April, 1994.
SMITHFIELD FOODS, INC.
By /s/ Joseph W. Luter, III
-------------------------------
Joseph W. Luter, III
Chairman, President and
Chief Executive Officer
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