As filed with the Securities and Exchange Commission on December 12, 2001.
Registration No. 333 ________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PILGRIM'S PRIDE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 75-1285071
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
110 SOUTH TEXAS
PITTSBURG, TEXAS 75686-0093
(Address of principal executive offices) (Zip Code)
PILGRIM'S PRIDE CORPORATION
EMPLOYEE STOCK INVESTMENT PLAN
(Full title of the plan)
RICHARD A. COGDILL
EXECUTIVE VICE PRESIDENT, CHIEF FINANCIAL OFFICER, SECRETARY AND TREASURER
110 SOUTH TEXAS
PITTSBURG, TEXAS 75686-0093
(903) 855-1000
(Name, address, telephone number, including area code, of agent for service)
WITH A COPY TO:
ALAN G. HARVEY
BAKER & MCKENZIE
2300 TRAMMELL CROW CENTER
2001 ROSS AVENUE
DALLAS, TEXAS 75201
CALCULATION OF REGISTRATION FEE
TITLE OF SECURITIES AMOUNT TO BE PROPOSED PROPOSED AMOUNT OF
TO BE REGISTERED(1) REGISTERED MAXIMUM MAXIMUM REGISTRATION
OFFERING AGGREGATE FEE
PRICE PER OFFERING
SHARE (2) PRICE (2)
Class A Common
Stock, par value
$.01 per share 200,000 shares $9.78 $1,956,000 $467.48
Class B Common
Stock, par value
$.01 per share 400,000 shares $14.10 $5,640,000 $1,347.96
(1) Shares of Class A Common Stock and Class B Common Stock of Pilgrim's
Pride Corporation (the "Registrant") being registered hereby relate to
the Pilgrim's Pride Corporation Employee Stock Investment Plan (the
"Plan"). Pursuant to Rule 416 under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration statement covers any
additional shares of Class A Common Stock and Class B Common Stock of
the Registrant that become issuable by reason of any stock dividend,
stock split, recapitalization or any other similar transaction without
receipt of consideration that results in an increase in the number of
shares of our outstanding Class A Common Stock or Class B Common
Stock.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) promulgated under the Securities Act
on the basis of the average of the high and low sale prices of the
Common Stock on December 10, 2001, as reported on the New York Stock
Exchange.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The documents listed in (a) through (c) below are hereby incorporated
by reference into this Registration Statement. All documents subsequently
filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior
to the filing of a post-effective amendment to the Registration Statement
which indicates that all shares of Common Stock offered hereunder have been
sold or which deregisters all shares then remaining unsold, shall be deemed
to be incorporated herein by reference and to be a part hereof from the
date of filing of such documents.
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended September 29, 2001, filed with the Securities and Exchange Commission
(the "Commission") on November 23, 2001.
(b) The description of the Registrant's Class A Common Stock
contained in the Registrant's Registration Statement on Form 8-A filed
with the SEC on July 20, 1999; and
(c) The description of the Registrant's Class B Common Stock
contained in the Registrant's Registration Statement on Form 8-A filed with
the SEC on September 24, 1986, as amended by Form 8-A/A filed with the SEC
on July 1, 1998, and as further amended by Form 8-A/A filed with the SEC on
July 20, 1999.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Amended and Restated Corporate Bylaws of the Registrant provide
that the Registrant shall indemnify and hold harmless any present or former
officer or director or any officer or director who is or was serving at the
request of the Registrant as a director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another
corporation, partnership, trust, employee benefit plan or other enterprise,
from and against fines, judgments, penalties, amounts paid in settlement
and reasonable expenses actually incurred by such person in connection with
any suit to which they were or are made, or are threatened to be made, a
party, or to which they are a witness without being named a party, if it is
determined that he acted in good faith and reasonably believed (i) in the
case of conduct in his official capacity on behalf of the Registrant, that
his conduct was in the Registrant's best interests, (ii) in all other
cases, that his conduct was not opposed to the best interests of the
Registrant and (iii) with respect to any criminal action, that he had no
reasonable cause to believe his conduct was unlawful; provided, however,
that in the event a determination is made that such person is liable to the
Registrant or is found liable on the basis that a personal benefit was
improperly received by such person, the indemnification is limited to
reasonable expenses actually incurred by such person in connection with the
suit and shall not be made in respect of any suit in which such person
shall have been found liable for willful or intentional misconduct in the
performance of his duty to the Registrant.
Pursuant to Section 145 of the General Corporation Law of the State of
Delaware ("Delaware Code"), the Registrant generally has the power to
indemnify its present and former directors, officers, employees and agents
against expenses, judgments, fines and amounts paid in settlement incurred
by them in connection with any suit (other than a suit by or in the right
of the Registrant) to which they are, or are threatened to be made, a party
by reason of their serving in such positions, or is or was serving at the
Registrant's request in such positions for another corporation,
partnership, joint venture, trust or other enterprise, so long as they
acted in good faith and in a manner they reasonably believed to be in, or
not opposed to, the best interests of the Registrant, and with respect to
any criminal action, they had no reasonable cause to believe their conduct
was unlawful. Section 145 of the Delaware Code further provides that in
connection with the defense or settlement of any action by or in the right
of the corporation, a Delaware corporation may indemnify its present and
former directors, officers, employees and agents against expenses actually
and reasonably incurred by them if, in connection with the matters in
issue, they acted in good faith, in a manner they reasonably believed to be
in or not opposed to the best interests of the corporation, except that no
indemnification may be made with respect to any claim, issue or matter as
to which such person has been adjudged liable to the corporation unless the
Court of Chancery or the court in which such action or suit was brought
approves such indemnification. The statute also expressly provides that the
power to indemnify authorized thereby is not exclusive of any rights
granted under any bylaw, agreement, vote of stockholders or disinterested
directors, or otherwise.
According to the Amended and Restated Corporate Bylaws of the
Registrant and Section 145 of the Delaware Code, the Registrant has the
power to purchase and maintain insurance for its present and former
directors, officers, employees and agents. The above discussion of the
Registrant's Amended and Restated Corporate Bylaws and of Section 145 of
the Delaware Code is not intended to be exhaustive and is qualified in its
entirety by such Amended and Restated Corporate Bylaws and the Delaware
Code.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
None.
ITEM 8. EXHIBITS.
The following are filed as exhibits to this Registration Statement:
EXHIBIT NO. DESCRIPTION
4.1 Pilgrim's Pride Corporation Employee Stock Investment Plan*
4.2 Certificate of Incorporation of the Registrant as amended
(incorporated by reference from Exhibit 1 of the
Registrant's Form 8-A/A-1 filed with the SEC on July 1,
1998).
4.3 Certificate of Amendment to Certificate of Incorporation of
the Registrant (incorporated by reference from Exhibit 1 of
the Registrant's Form 8-A filed with the SEC on July 20,
1999).
4.4 Amended and Restated Corporate Bylaws of the Registrant
(incorporated by reference from Exhibit 3 of the
Registrant's Form 8-A filed with the SEC on July 20, 1999).
4.5 Amendment No. 1 to Amended and Restated Corporate Bylaws of
the Registrant.*
23.1 Consent of Ernst & Young LLP*
24 Power of Attorney (included on the signature page of the
Registration Statement)*
________________
* 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;
(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, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission (the
"Commission") pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 Registration Statement is on Form S-3 or Form S-8, and 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 the 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 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to 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.
(c) Insofar as indemnification for liabilities arising 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
Commission such indemnification is against public policy as expressed in
the Securities 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 Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of
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 Pittsburg, State of Texas, on
December 12, 2001.
PILGRIM'S PRIDE CORPORATION
By: /S/ RICHARD A. COGDILL
Richard A. Cogdill
Executive Vice President, Chief Financial Officer,
Secretary and Treasurer
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes Richard A.
Cogdill to file one or more amendments (including post-effective
amendments) to this registration statement, which amendments may make such
changes in this registration statement as he deems appropriate, and each
such person hereby appoints Richard A. Cogdill as attorney-in-fact to
execute in the name and on behalf of the Registrant and any such person,
individually and in each capacity stated below, any such amendments to this
registration statement.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on
the date indicated.
SIGNATURE TITLE DATE
/S/ LONNIE "BO" PILGRIM
Lonnie "Bo" Pilgrim Chairman of the Board December 12, 2001
/S/ CLIFFORD E. BUTLER
Clifford E. Butler Vice Chairman of the Board December 12, 2001
/S/ DAVID VAN HOOSE
David Van Hoose Chief Executive Officer December 12, 2001
President
Chief Operating Officer
and Director
(Principal Executive Officer)
/S/ RICHARD A. COGDILL
Richard A. Cogdill Executive Vice President December 12, 2001
Chief Financial Officer
Secretary and Treasurer
and Director
(Principal Financial and
Accounting Officer)
/s/ LONNIE KEN PILGRIM
Lonnie Ken Pilgrim Senior Vice President, December 12, 2001
Transportation
and Director
Charles L. Black Director December ___, 2001
S. Key Coker Director December ___, 2001
Vance C.Miller,Sr. Director December ___, 2001
/S/ JAMES G. VETTER,JR.
James G. Vetter, Jr. Director December 12, 2001
Donald L. Wass, Ph.D. Director December ___, 2001
Ph.D.
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4.1 Pilgrim's Pride Corporation Employee Stock Investment Plan*
4.2 Certificate of Incorporation of the Registrant as amended
(incorporated by reference from Exhibit 1 of the
Registrant's Form 8-A/A-1 filed with the SEC on July 1,
1998).
4.3 Certificate of Amendment to Certificate of Incorporation of
the Registrant (incorporated by reference from Exhibit 1 of
the Registrant's Form 8-A filed with the SEC on July 20,
1999).
4.4 Amended and Restated Corporate Bylaws of the Registrant
(incorporated by reference from Exhibit 3 of the
Registrant's Form 8-A filed with the SEC on July 20, 1999).
4.5 Amendment No. 1 to Amended and Restated Corporate Bylaws of
the Registrant.*
23.1 Consent of Ernst & Young LLP*
24 Power of Attorney (included on the signature page of the
Registration Statement)*
________________
* filed herewith
EXHIBIT 4.1
PILGRIM'S PRIDE CORPORATION
EMPLOYEE STOCK INVESTMENT PLAN
1. PURPOSE. The purpose of the Pilgrim's Pride Corporation Employee
Stock Investment Plan (the "Plan") is to provide the employees of Pilgrim's
Pride Corporation (the "Company") and its Designated Affiliates (as defined
below) with a convenient method of investing in shares of the Class A
common stock, $.01 par value (the "Class A Stock") and the Class B common
stock, $.01 par value (the "Class B Stock"), of the Company (both classes
collectively referred to as the "Stock") through payroll deductions
supplemented by Company contributions. Contributions will be invested by
an investment banker and/or broker (the "Administrator") or any successor
administrator, engaged by the Company. Currently, the Administrator of the
Plan is Salomon Smith Barney. The Board of Directors of the Company (the
"Board") believes that employee participation in the ownership of the
business helps to bring about the essential unity of purpose among the
Company, its employees and its shareholders. However, nothing herein set
forth should be construed, nor is the same intended, to obligate any
employee to participate in the Plan. Participation herein is entirely
voluntary and neither the Company nor the Administrator urges, recommends
or suggests that any employee should purchase an equity interest in the
Company by participating in the Plan. For purposes of the Plan, the term
"Affiliate" shall mean (i) any subsidiary corporation of the Company, as
that term is defined in Section 424(f) of the Internal Revenue Code of
1986, as amended, and (ii) any other entity in which the Company directly
or indirectly owns a majority of the equity interests. Furthermore,
"Designated Affiliate" shall mean any Affiliate which has been designated
by the Committee (as defined in Section 9 below) as eligible to participate
in the Plan with respect to its employees.
2. RISK OF LOSS AND SUITABILITY OF INVESTMENT. Each eligible
employee who participates in the Plan may suffer a loss on his investment.
A risk is involved in purchasing the stock of any company, including the
Stock pursuant to the Plan. Before investing under the Plan, each employee
should carefully consider whether purchasing the Stock is a suitable
investment or, if he is already a shareholder, whether an increase in such
equity ownership is appropriate. Each eligible employee should make a
thorough and independent investigation of the current business and
financial condition of the Company before electing to participate in the
Plan.
3. TERM OF PLAN. The Plan will continue until terminated by the
Board.
4. ELIGIBILITY. Any employee of the Company who has completed six
(6) months of continuous service with the Company may participate in the
Plan, except the following:
(1) Part-time employees. A part-time employee is defined as a
person employed by the Company whose customary employment is
less than four (4) hours per day and/or whose customary
employment is for not more than five (5) months in a
calendar year.
(2) Shareholders owning more than five percent (5%) of the
outstanding voting stock of the Company.
(3) Employees who reside in a jurisdiction which prohibits the
offer or sale of the Plan interests and the Stock to its
residents or otherwise prohibits or restricts the Plan.
Eligible employees who elect to participate in the Plan are
hereinafter referred to as the "Participants" or individually as a
"Participant." Any Participant whose interest in the Plan has terminated
for any reason is eligible to resume participation in the Plan upon filing
a written application in accordance with Section 5.
As used herein, the term "employee of the Company" shall include
employees of any Affiliate of the Company hereafter designated by the
Committee as a Designated Affiliate for purposes of this Plan.
5. METHOD OF ENROLLMENT. Each eligible employee may become a
participant in the Plan by filing a written application on such forms as
may be prescribed by the Administrator with the payroll office of the
Company from which such employee's salary or wages are paid. Each
application of the eligible employee will become effective for the payroll
period following the date after such application is received. As used
herein, the term "payroll period" shall mean the period from the date on
which the Participant customarily receives payment of his regular salary or
wages to the next successive date on which he customarily receives such
payment.
6. PAYROLL DEDUCTIONS. Subject to Section 19 below, all Participant
contributions to the Plan shall be made only by payroll deduction. Each
application shall specify the amount which the Participant elects to
contribute under the Plan for each payroll period and shall authorize the
Company to withhold such amount from the salary of such Participant with
respect to each payroll period thereafter until such Participant's
participation in the Plan is terminated or until the amount of such
deductions shall be changed or suspended as hereinafter provided. Any
eligible employee may authorize payroll deductions pursuant to the Plan as
follows:
The minimum payroll deduction is $10.00 per payroll period
and the maximum deduction is 7-1/2% of the Participant's
base salary, overtime pay and bonuses (but excluding
commissions or other allowances) for such period. In
applying the minimum payroll deduction, the Participant must
contribute not less than $5.00 for the Class A Stock or for
the Class B Stock.
Any application authorizing payroll deductions may be amended to
increase or to reduce payroll deductions in full dollar amounts or to
suspend such payroll deductions; provided, however, that any suspension
shall continue until the Participant has notified the Company to recommence
payroll deductions. Each such amendment shall be made by filing a written
application on such form as may be prescribed by the Administrator with the
payroll office from which the Participant's salary is paid, and shall
become effective for the payroll period following the date after such
application is received.
7. COMPANY CONTRIBUTIONS. The Company shall contribute to the
account of each Participant from whom a payroll deduction was made during
each payroll period an amount equal to 33 1/3% of the Participant's payroll
deduction for such period, provided that the Company has sufficient current
or accumulated net income to permit the Company to make such contributions
under applicable law. Payroll deductions by the Participant and
contributions by the Company shall be forwarded to the Administrator as
provided in Section 8 hereof.
A Participant may elect to waive the Company's contributions by
written notice of such waiver to the Secretary of the Company. Such waiver
may be revoked by written notice of the Participant to the Secretary of the
Company.
8. ADMINISTRATION OF THE PLAN. The Company shall accumulate and
hold, without interest, the amounts so withheld from the payroll deductions
of all Participants together with all amounts contributed weekly by the
Company pursuant to the Plan. All such amounts accumulated in any week
shall be transmitted to the Administrator (to be applied in accordance with
the provisions of this Plan) as promptly as is reasonably practicable in
the ordinary course of business following the week of withholding or
contribution, as the case may be. Such transmittal shall be accompanied by
a Transmittal Letter, the form of which will be supplied by the
Administrator. A signed copy of the application and each amendment thereof
shall be transmitted to the Administrator from time to time as received by
the Company.
The Administrator shall establish and maintain a separate account on
behalf of each Participant.
All shares of the Stock purchased under this Plan shall be held in the
name and custody of the Administrator for the benefit of the Participants
and subject to withdrawal by such Participant as herein provided.
Upon receipt of such funds, the Administrator shall as soon as is
reasonably practicable thereafter credit each Participant's account
according to such schedule and shall purchase on the New York Stock
Exchange or on any exchange on which the Stock is traded, and in accordance
with the SEC guidelines, as many whole shares of the Stock as may be
purchased from the aggregate available funds in the accounts of all
Participants (including any funds available through cash dividends credited
to the Participant's accounts pursuant to Section 17 of the Plan), and
allocate full shares and fractional shares to the account of each
Participant upon completion of the purchase. Purchases shall be made
either from the Administrator as principal or by the Administrator as agent
at prices prevailing on the open market at time of purchase.
The Administrator shall keep and maintain an appropriate record of all
transactions relating to each Participant's separate account. The
Administrator shall supply each Participant with a record or confirmation
of his account which shall disclose the amount invested, the price per
share, the number of shares of the Stock purchased, and the total number of
full shares and/or fractional shares of the Stock allocated to the account
(on at least a monthly basis) pursuant to rules established by the
Committee. Should there be no activity in the account, then a statement
will be supplied periodically, however, at least on an annual basis.
The rights, privileges and duties of each Participant and the
Administrator shall be consistent with the ordinary broker-client
relationship, and a Participant may sell all or any whole shares of the
Stock held for his account by so instructing the Administrator in writing.
In the event of any such sale of the Stock, normal commissions and other
charges shall be paid by the Participant to the Administrator. All
commissions involved in the purchase of the Stock from funds supplied by
the Participant through payroll deductions or by the Company through its
contributions pursuant to the Plan, together with the Administrator's
reasonable service fee for bookkeeping and mailing expenses, shall be paid
by the Company. The Administrator may allow Participants to purchase
shares of the Stock with voluntary contributions to their accounts
maintained under the Plan, but the Participant shall pay any fees or
commissions with respect to shares of the Stock purchased with funds other
than payroll deductions or Company contributions pursuant to the Plan.
The Administrator may be removed from its appointment at any time in
the sole discretion of the Board upon written notice to the Administrator
and the Administrator may resign at any time upon advance written notice to
the Company and the Participants. The Administrator shall have no material
relationship to the Company, its affiliates or, to the knowledge of the
Company, any eligible employees. In the event that the Administrator shall
cease to administer the Plan, the Board may appoint any other member firm
of the New York Stock Exchange to administer the Plan.
9. THE COMMITTEE. The Board may delegate its authority hereunder to
the Company's Compensation Committee (the "Committee"). In such case, any
reference in the Plan to the Board may be deemed to include the Committee.
The Committee shall have the authority to interpret the Plan, to adopt,
amend and rescind such rules and regulations as, in its opinion, are
necessary for the administration of the Plan, to designate Affiliates whose
employees may participate in the Plan and to make such other determinations
deemed necessary or advisable for the administration of the Plan, including
by way of illustration the adoption of sub-plans applicable to Designated
Affiliates or locations. All decisions, determinations and interpretations
of the Committee relating to the Plan shall be final and conclusive on the
Company or its Affiliates, the Administrator and all Participants under the
Plan.
The Committee may employ such accountants, 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 counsel or consultant and any
computation received from any consultant or agent. Expenses incurred by
the Committee in the engagement of such counsel, consultants or agents
shall be paid by the Company. No member or former member of the Committee
shall be liable for any action or determination made in good faith with
respect to the Plan.
10. VOTING RIGHTS. All rights as a shareholder of the Company shall
vest in a Participant upon the date when shares of the Stock are credited
to his account. The Administrator shall deliver to each Participant as
promptly as reasonably practicable, by mail or otherwise, all notices of
meetings, proxy statements and other material distributed by the Company to
holders of the Stock provided that the Participant has one or more whole
shares allocated to his account. There shall be no charge to the
Participants for the Administrator's delivery of notices, proxies or other
such material.
The Administrator shall exercise proxy instructions received from the
Participants on an aggregate basis, so as to preserve as much as possible
the voting rights of those Participants holding fractional interests in
shares of the Stock. The Administrator shall vote all of the Stock held by
its hereunder in accordance with the rules of the New York Stock Exchange.
11. DISCONTINUANCE OF CONTRIBUTIONS. The contributions by a
Participant and the Company on such Participant's behalf hereunder shall be
permanently discontinued on the first to occur of such Participant's
retirement, total and permanent disability, death, or employment
termination or the termination of his interest in the Plan for any reason.
Such contributions shall be suspended during any leave of absence from
employment with the Company by the Participant, and during any period in
which the Participant does not qualify as an eligible employee of the
Company.
12. WITHDRAWAL OF STOCK. A Participant may not more than once a
quarter withdraw from his account any number of whole shares of the Stock
then credited to such account, by filing with the Administrator written
notice in such form as the Administrator shall have prescribed therefor.
The Participant shall bear reasonable fees and expenses charged by the
Administrator for such withdrawals, including federal or state transfer
taxes, if any.
A partial withdrawal of the Stock from a Participant's account shall
have no effect on the Participant's payroll deductions and shall not cause
a termination of his interest in the Plan. A complete withdrawal of a
Participant's shares of the Stock from the Plan shall terminate the
Participant's interest in the Plan. The Administrator shall promptly
notify the Company of any complete withdrawal by any Participant. All
federal or state transfer taxes, if any, which may be due upon the first
partial withdrawal of the Stock by a Participant in any calendar year or
any complete withdrawal from the Plan shall be paid by the Participant,
subject to the provisions of Section 14 hereof.
13. FORMS. Appropriate forms for authorizing payroll deductions,
increasing or decreasing the same, terminating the same, and other forms
reasonably required for the purposes of the Plan shall be supplied by the
Administrator and the Company and designated for use hereunder from time to
time.
14. TERMINATION OF PARTICIPANT'S INTEREST IN PLAN. If a Participant
shall die, retire, be totally and permanently disabled, or cease to be
continuously employed by the Company, such Participant's interest in the
Plan shall thereupon automatically terminate. The Company shall promptly
notify the Administrator of any such termination.
A Participant may also terminate his interest in the Plan at any time
upon advance written notice to the Company or the Administrator. The
Company or the Administrator shall promptly notify the other of the receipt
of any such notice.
Until the Administrator shall have received written instructions from
the Participant or his estate, certificates for the Stock held by the
Administrator for the account of any Participant whose interest in the Plan
has terminated shall continue to be held by the Administrator in accordance
herewith, and the Administrator shall continue to reinvest dividends and
other proceeds pursuant to Section 17 hereunder. Upon the receipt of
appropriate written instructions from the Participant or his estate, the
Administrator shall cause any whole shares of the Stock credited to the
account of the Participant to be transferred in accordance with such
instructions and shall cause certificates representing such shares to be
mailed in accordance with the instructions. Any fractional interest in a
share held will be sold by the Administrator at the currently prevailing
market price and a check for the proceeds will also be mailed in accordance
with the instructions of the Participant or his estate. In the event
appropriate instructions are not received by the Administrator from a
Participant within a reasonable period after the termination of the
Participant's interest in the Plan, the Administrator shall use its best
efforts to contact the Participant regarding the disposal of his shares.
All federal or state transfer taxes, if any, which may be due upon
transfer of such shares to the Participant resulting from death,
retirement, or disability only shall be paid by the Company. Such taxes
due upon transfers to any person other than the Participant, as well as for
other termination of his employment, will not be borne by the Company, and
the Administrator may require the deposit of funds sufficient to cover such
taxes in advance of making any such transfer.
15. AMENDMENT AND TERMINATION OF THE PLAN. The Board may amend or
terminate the Plan in any respect from time to time within its sole
discretion. In the event of termination of the Plan, prompt written notice
thereof shall be given to each Participant and the Administrator by the
Company. The Administrator shall dispose of shares of the Stock held in
the accounts of Participants in accordance with the written instructions of
each Participant. In the event appropriate written instructions are not
received by the Administrator from a Participant within a reasonable period
after the termination of the Plan, the Administrator shall use its best
efforts to contact the Participant regarding the disposal of his shares.
16. ASSIGNMENT OF INTEREST. Unless applicable law requires
otherwise:
(a) A Participant may not assign, transfer or encumber any part
of his interest in the Plan, any funds being held in his
account, or any shares of the Stock being held for his
account prior to withdrawal of such shares from his account,
provided, however, that a Participant may instruct the
Administrator to sell any or all whole shares in his account
as provided in Section 8 herein.
(b) Neither the interest of a Participant in the Plan nor the
funds or shares of the Stock credited to his account
hereunder shall in any way be subject to any legal process
or be levied upon or attached for payment of any claim
against a Participant or otherwise availed of by any other
person.
Any such attempted assignment, transfer or encumbrance and any such
attempted levy, attachment, or other subjugation to legal process shall be
void and shall not be recognized by the Administrator.
17. DIVIDENDS AND OTHER PROCEEDS. Cash dividends received in respect
of shares of the Stock held in the accounts of Participants shall be
credited by the Administrator to such accounts. All such cash shall be
reinvested in shares of the Stock as promptly as reasonably practicable
following receipt thereof.
The Company shall pay all regular commissions in connection with the
purchases constituting such reinvestment. Stock dividends or split-ups in
respect of shares of the Stock held in the accounts of Participants shall
be credited to such accounts. Other securities and rights to subscribe to
shares of the Stock received in respect of shares of the Stock held in the
accounts of Participants shall also be credited to such accounts.
18. SECURITIES LAWS. The Company has filed with the Securities and
Exchange Commission, Washington, D. C., a Registration Statement under the
Securities Act of 1933, as amended, with respect to the Plan. The Plan
does not contain all of the information set forth in the Registration
Statement or the Prospectus contained therein and any Participant, before
making a decision to participate in the Plan, should receive and read
carefully such Prospectus. The Plan is also subject to the securities laws
of the states in which Participants reside and may not be available for an
employee of the Company under the securities laws of the state in which he
resides. The Company shall not be obligated to continue the registration
of the Plan under the Securities Act of 1933 or to make or cause to be made
any registration relating to the Plan or the Stock under the securities
laws of any state. Additionally, the Company shall not be obligated to
implement or continue the Plan or to permit any employee to become a
Participant under the Plan unless the Plan and the shares of the Stock to
be purchased under the Plan are effectively registered or exempt from
registration under the Securities Act of 1933 and are registered or
qualified under or otherwise in compliance with or exempt from any other
federal or state law or regulation governing the Plan or the offer and sale
of the Stock or any securities exchange or other regulation to which the
Company, the Plan or the Stock might be subject.
19. COMMITTEE RULES FOR FOREIGN JURISDICTIONS. The Committee may
adopt rules or procedures relating to the operation and administration of
the Plan to accommodate the specific requirements of local laws and
procedures. Without limiting the generality of the foregoing, the
Committee is specifically authorized to adopt rules and procedures
regarding handling of payroll deductions, payment of interest, conversion
of local currency, payroll tax, withholding procedures and handling of
stock certificates which vary with local requirements.
The Committee may also adopt sub-plans applicable to particular
Designated Affiliates or locations. The rules of such sub-plans may take
precedence over other provisions of this Plan, with the exception of
Section 6, but unless otherwise superseded by the terms of such sub-plan,
the provisions of this Plan shall govern the operation of such sub-plan.
20. NO ENLARGEMENT OF EMPLOYEE RIGHTS. Nothing in this Plan shall be
deemed to give a Participant the right to be retained in the employ of the
Company or any Affiliate or to interfere with the right of the Company or
any Affiliate to discharge any Participant at any time.
21. CONSTRUCTION. The Committee shall have the power to interpret
the Plan in its sole discretion.
Throughout the Plan, the use of the singular number shall be construed
to include the plural, the plural the singular, and the use of any gender
shall include all genders, whenever required by the context.
22. EFFECTIVE DATE. The Plan shall be deemed effective upon its
approval by the Board of Directors.
23. GOVERNING LAW. This Plan, any related agreements (such as
enrollment forms), and all determinations made and actions taken pursuant
thereto, shall be governed by the laws of the State of Texas and construed
in accordance therewith without giving effect to principles of conflicts of
law.
EXHIBIT 4.5
AMENDMENT NO. 1
OF THE
AMENDED AND RESTATED
CORPORATE BYLAWS
OF
PILGRIM'S PRIDE CORPORATION
(THE "CORPORATION")
In accordance with Article 8, Section 8.9 of the Amended and Restated
Corporate Bylaws of the Corporation, and pursuant to a resolution adopted
by a majority of the Directors present at a meeting of the Board of
Directors of the Corporation duly convened, Article 2, Section 2.2 of the
Amended and Restated Corporate Bylaws of the Corporation has been amended
and restated in its entirety to read as follows:
"2.2 ANNUAL MEETINGS. An annual meeting of
stockholders of the Corporation shall be held each calendar year
on such date and at such time as shall be designated from time to
time by the Board of Directors and stated in the notice of the
meeting or in a duly executed waiver of notice of such meeting.
At such meeting, the stockholders shall elect Directors and
transact such other business as may properly be brought before
the meeting."
IN DUE CERTIFICATION WHEREOF, the undersigned, being the Secretary of
the Corporation, confirms the adoption and approval of the foregoing
Amendment No. 1, effective as of the 11th day of December, 2001.
/S/ RICHARD A. COGDILL
RICHARD A. COGDILL, Secretary
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to Pilgrim's Pride Corporation Employee
Stock Investment Plan of our report dated October 29, 2001, with respect to
the consolidated financial statements and schedule of Pilgrim's Pride
Corporation include in its Annual Report (Form 10-K) for the year ended
September 29, 2001, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Dallas, Texas
December 6, 2001
