UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date
of
report (Date of earliest event reported): October 10, 2007
PILGRIM'S
PRIDE CORPORATION
(Exact
Name of Registrant as Specified in its Charter)
Delaware
; 1-9273 75-1285071
(State
or
Other Jurisdiction (Commission
(IRS
Employer
of
Incorporation) File
Number) Identification
No.)
4845
US
Highway 271 N.
Pittsburg,
Texas 75686-0093
(Address
of
Principal Executive Offices)
(ZIP
Code)
Registrant's
telephone number, including area code: (903)
434-1000
Not
Applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
q Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
q Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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q
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR
240.14d-2(b))
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q Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
On
October 10, 2007, Pilgrim's Pride Corporation (the "Company") entered into
a
Retirement and Consulting Agreement (the "Agreement") with Clifford E. Butler,
the Company's Vice Chairman. Pursuant to the terms of the Agreement, Mr. Butler
will retire from employment with the Company on December 31, 2007. Mr. Butler
will also retire from his position on the Board of Directors of the Company
at
the end of his current term, and he will not stand for re-election to the Board
at the Annual Meeting of Stockholders scheduled to be held in January
2008.
Pursuant
to the terms of the Agreement, Mr. Butler agrees to provide consulting services
to the Company on an as-requested basis from January 1, 2008 until December
31,
2010 (the "Consulting Period"), and generally agrees not to compete with the
Company or solicit the Company's employees during the Consulting Period. The
Company will pay Mr. Butler a fee of $55,555.56 per month during the Consulting
Period. If the number of hours of consulting services the Company requests
Mr.
Butler to provide in any year exceeds 240 hours, the Company will pay Mr. Butler
additional compensation in the amount of $250 per hour for the additional hours
of service he provides.
The
Agreement provides that Mr. Butler and his wife may elect to remain on the
Company's health and welfare benefit plans covering medical, dental, and vision
benefits during the Consulting Period at a cost payable by Mr. Butler equal
to
that which an active employee of the Company would pay for those benefits.
In
the alternative, Mr. Butler can elect to obtain personal supplemental insurance
coverage from another source, and the Company will reimburse him up to an amount
equal to the Company's portion of the prevailing COBRA rate.
The
description of the terms of the Agreement set forth above does not purport
to be
complete and is qualified in its entirety by reference to the full text of
the
Agreement, a copy of which is attached to this report as Exhibit 10.1 and is
incorporated herein by reference.
Item
7.01 Regulation FD Disclosure.
On
October 10, 2007, the Company issued a press release announcing the pending
retirement of Mr. Butler. A
copy of
the press release is furnished pursuant to Regulation FD as Exhibit 99.1 to
this
report.
The
information contained in Item 7.01 of this report and in Exhibit 99.1 shall
not
be deemed "filed" for purposes of Section 18 of the Securities Exchange Act
of
1934, as amended (the "Exchange Act"), or incorporated by reference in any
filing under the Securities Act of 1933, as amended, or the Exchange Act, except
as shall be expressly set forth by specific reference in such a
filing.
Item
9.01. Financial
Statements and Exhibits.
(d)
Exhibits.
Exhibit
Number
Description
10.1
Retirement
and Consulting Agreement dated as of October 10, 2007, between the Company
and
Clifford E. Butler.
99.1
Press
Release dated October 10, 2007.
Signatures
Pursuant
to the requirements of the Exchange Act, the registrant has duly caused this
report to be signed on its behalf by the undersigned hereunto duly authorized.
PILGRIM'S
PRIDE
CORPORATION
Date:
October 10, 2007 By:
/s/
Richard A. Cogdill
Richard
A. Cogdill
Chief
Financial Officer, Secretary and Treasurer
EXHIBIT
INDEX
Exhibit
Number
Description
10.1
Retirement
and Consulting Agreement dated as of October 10, 2007, between the Company
and
Clifford E. Butler.
99.1
Press
Release dated October 10, 2007.
RETIREMENT
& CONSULTING AGREEMENT
ARTICLE
1
PREAMBLE
This
Retirement & Consulting Agreement (hereafter “Agreement”) is entered into
between Clifford E. Butler (hereafter “Butler”) and Pilgrim's Pride Corporation
(hereafter “Company”) which includes any parent, subsidiary, and affiliate
thereof. Butler and the Company are sometimes hereafter referred to as “the
parties”, and the Company's subsidiaries, affiliates, employee retirement and
health and welfare plans, and their respective officers, directors, agents
and
fiduciaries and persons formerly in any of those positions are sometimes
hereafter referred to as the "Other Entities."
ARTICLE
2
AGREEMENTS
Butler
and the Company agree to certain facts as follows:
SECTION
2.1:
The parties agree that Butler provided valued services to the Company for over
38 years as a committed employee. In light of Butler’s retirement effective
December 31, 2007 and in recognition of those services, and in exchange for
the
consideration recited in this Agreement, the Company wishes to provide Butler
this Retirement & Consulting Agreement under the terms herein.
SECTION
2.2: The
parties agree that Butler will remain employed with the Company at his current
salary and benefits until December 31, 2007, in an effort to transition his
duties.
SECTION
2.3: The
terms of this Agreement are the product of negotiations between the parties
hereto and their counsel, and Butler agrees that the consideration afforded
to
him that is described in this Agreement is the full consideration agreed to
between the parties, and that he has received no other promise, inducement,
or
concession in support of the obligations imposed upon him under this Agreement.
ARTICLE
3
DEFINITIONS
SECTION
3.1 "Competing
Business"
means
(1) any entity in the states of Texas and/or Arkansas in the business of the
production, marketing or sale of poultry products, distribution of poultry
and/or other meat products, or any other business that involves the same type
of
products or services sold and/or marketed by the Company on the date of this
Agreement, or any business of similar nature that would displace business
opportunities or customers available to the Company on the date of this
Agreement, and, (2) any of the following entities and their subsidiaries and
affiliates: Tyson Foods, Inc.; Perdue Farms, Inc.; Wayne Farms, LLC; Foster
Farms; Sanderson Farms, Inc.; Mountaire Farms, Inc.; O.K. Foods, Inc.; Simmons
Foods, Inc.; Keystone Foods, LLC; Cagle’s Inc.; OSI Industries, Inc., Industrias
Bachoco S.A.B. de C.V., and any distributor or broker that sells or brokers
any
of their cooked or fresh chicken products.
SECTION
3.2: "Confidential
Information"
is
information acquired by Butler during the course and scope of his employment
by,
or future strategic consulting activities for, the Company that may be
designated or marked by the Company as "Confidential" or that the Company
indicates through its policies, procedures or other instructions should not
be
disclosed to anyone outside of the Company. Without limitation, examples of
protected Confidential Information under this Agreement include: internal
financial data, corporate strategic plans, litigation strategies and other
matters protected by the attorney client privilege, research and development
regarding existing and developmental products, marketing plans, internal market
studies or surveys, customer contacts and information, customer purchasing
needs
and preferences, pricing and related information concerning the Company’s
products, information with respect to the particular competencies and
experiences of the Company’s employees, and information concerning the Company’s
contractual and/or business relationships with its independent growers.
Confidential Information does not include information that has become public
other than as a result of a breach of this Agreement, is available on a
non-confidential basis prior to it's disclosure to Butler by the Company, or
becomes available to Butler on a non-confidential basis from a source other
than
the Company, provided such source was not bound by a confidentiality agreement
with the Company. Nothing contained herein shall be deemed to prevent Butler
from disclosure of Confidential Information if, in the written opinion of
counsel, such disclosure is legally required to be made and Butler notifies
the
Company in advance of such intended disclosure and, if applicable, gives the
Company a reasonable opportunity to obtain a protective order or confidentiality
treatment.
SECTION
3.3: "Covered
Customer"
means
any entity or person who did business with the Company during the four (4)
years
prior to the execution of this Agreement by the parties.
SECTION
3.4: "Consulting
Period"
means
the three (3) year period between January 1, 2008 and December 31, 2010.
ARTICLE
4
CONSIDERATION
SECTION
4.1: The
total consideration afforded by Butler consists of the full performance of
each
and every obligation imposed upon him by this Agreement.
SECTION
4.2: The
total consideration afforded by the Company for this Agreement is the following:
(a) During
the Consulting Period, the Company agrees to pay Butler a monthly fee equal
to
$55,555.56 through the Consulting Period ending on December 31, 2010. The
Company will pay Butler such amount on a monthly basis in arrears on the first
business day following the 15th
day of
each month, with the first payment to be made on February 15, 2008 and the
last
payment to be made on January 15, 2011.
(b) Butler
and his spouse may, at their election, remain on the Company’s health and
welfare benefit plans covering medical, dental, and vision benefits during
the
Consulting Period at a cost payable by Butler equal to that which would be
required of an active employee of the Company to obtain such coverage. In lieu
of remaining on the Company’s health and welfare benefit plans covering medical,
dental and vision benefits, Butler may elect, at his option, upon notice to
the
Company at any time during the Consulting Period, to obtain personal
supplemental insurance coverage from another source, and, if Butler so elects,
the Company agrees to reimburse Butler for the cost of the coverage for the
then
remaining portion of the Consulting Period, with the reimbursement limited
to
the Company portion of the prevailing COBRA rate for the waived coverage. All
other Company benefits which Butler previously received will terminate on
December 31, 2007.
(c) In
connection with Butler's consulting agreement with the Company, the Company
agrees to provide Butler with Confidential Information of the Company, such
as
those examples defined and identified above, as may be necessary for Butler
to
perform consulting services during the Consulting Period. The promises of the
Company in this subparagraph (c) are intended by the parties to be fully
enforceable at the time Butler executes this Agreement. The Company’s
obligations herein to provide Confidential Information do not constitute an
ongoing obligation and will be satisfied when the Company provides Butler any
Confidential Information as defined herein.
(d)
The
Company agrees to pay Butler an amount not to exceed five thousand dollars
($5,000) for Butler’s attorney’s fees in connection with the negotiation and
drafting of this Agreement. Such amount will be paid by the Company in a lump
sum upon presentation by Butler of a bill or other fee statement from his
counsel.
SECTION
4.3: The
Company's obligation to pay the amounts set forth herein shall be terminated,
prior to the expiration of the Consulting Period, should Butler breach the
noncompete or other provisions of this Agreement or make any statements, either
oral, written, telephonic, electronic or in any other method or format, that
could reasonably be expected to disparage, damage or undermine the reputation
or
economic interests of the Company or any of its employees or representatives,
including but not limited to those referred to in Section 7.1 below. Butler
agrees to take steps to ensure that all members of his immediate family shall
refrain from any communication, in the forms set forth above or otherwise,
that
could reasonably be expected to disparage, damage, or undermine the reputation
or economic interest of the Company or any of its employees or representatives,
including but not limited to those referred to in Section 7.1 below. The
Company’s obligations to make the monthly payments to Butler as set forth herein
also shall terminate should Butler bring any lawsuit or legal claim, in any
forum, against the Company, including as a class member or participant in any
collective or other action against the Company, except to the extent such claim
relates to any alleged breach by the Company of this Agreement or any other
written agreement between the parties. Notwithstanding the foregoing, nothing
herein prohibits Butler from filing a charge with or participating in any
investigation or proceeding by any governmental agency. However, Butler
specifically and knowingly waives any right to damages or other relief relating
to all claims released herein. The Company agrees that, from the date hereof
until the termination of the Consulting Period, it shall not make any
statements, either oral, written, telephonic, electronic or in any other method
or format, that could reasonably be expected to disparage, damage or undermine
the reputation or economic interests of Butler.
SECTION
4.4:
Butler recognizes and agrees that the Company makes no representations
concerning the tax consequences, if any, of the payment of the amounts indicated
herein. The Company is not responsible for payment of any federal, state and
local taxes, interest and penalties, if any, which are or may become due on
the
amounts paid to Butler and Butler further agrees to indemnify, defend and hold
the Company and/or the Other Entities harmless from any claims, demands,
deficiencies, assessments, executions, judgments or recoveries by any
governmental entity against the Company and/or the Other Entities for any
amounts claimed due on account of this Agreement under any federal or state
tax
laws.
SECTION
4.5: Should
Butler die during the Consulting Period, then the Company will pay to Mariguinn
Butler the monthly payment specified in Section 4.2(a) herein, provided,
however, that all obligations and conditions under this Agreement required
of
Butler, other than the Consulting Services, will be assumed and required of
Mariguinn Butler. Should Mariguinn Butler predecease Butler, the Company shall
have no further payment obligations in the event Butler dies before the end
of
the Consulting Period.
SECTION
4.6: Anything
in this Agreement to the contrary notwithstanding, no amount payable under
this
Agreement that is “nonqualified deferred compensation” subject to Section 409A
of the Internal Revenue Code of 1986, as amended (the “Code”), shall be paid
prior to the earlier of, (i) the first day of the seventh (7th)
month
following the date that Butler experiences a “separation from service” (within
the meaning of U.S. Treas. Reg. 1.409A-1(h)) or, (ii) the date of Butler’s
death, to the extent such delayed commencement is otherwise required in order
to
avoid a prohibited distribution under Section 409A(a)(2) of the Code. Upon
the
expiration of such deferral period, all deferral payments that are delayed
pursuant to this Section 4.6 shall be paid in a lump sum to Butler and any
remaining payments due under this Agreement shall be paid in accordance with
the
scheduled payment dates specified herein.
ARTICLE
5
CONSULTING
AGREEMENT
SECTION
5.1: Butler
agrees to provide the Company with consulting services on an as-requested basis
during the Consulting Period. The consulting services to be provided under
this
Agreement may include general business, marketing and other advice similar
to
that provided by Butler previously when engaged as an employee of the Company.
The anticipated amount of consulting services that the Company will request
of
Butler is up to 240 hours per calendar year during the Consulting Period;
provided that any services requested exceeding 240 hours per calendar year
shall
be at times and schedules agreed to by the Chairman of the Company and Butler.
If the number of hours the Company requests Butler provide as a consultant
exceed 240 hours per calendar year, then the Company shall pay Butler additional
compensation in the amount of $250 per hour of consulting services provided
by
Butler.
SECTION
5.2: During
the Consulting Period, Butler agrees to maintain records of his consulting
services, in a form of Butler’s choosing, and provide the Company with such
records of his consulting services on a monthly basis for review and approval
by
the Chairman of the Company.
ARTICLE
6
RETURN
OF
COMPANY PROPERTY
SECTION
6.1: Butler
agrees that, by December 31, 2007, upon request by the Company, he will return
all Company property, including, but not limited to any Confidential Information
as defined herein, in his possession at that time. Butler further agrees that,
during the Consulting Period, he will not remove any Confidential Information
or
Company documents from the Company premises without prior approval of the
Chairman of the Company. After the Consulting Period, Butler further agrees
to
return all Company property he was provided by the Company during the course
of
his consulting duties as described herein.
ARTICLE
7
NONDISCLOSURE
AGREEMENT
SECTION
7.1: Butler
agrees not to disclose any of the Company's Confidential Information, as defined
above, directly or indirectly, to any unauthorized person, and not to use such
information in any way, either during the term of this Agreement or any time
thereafter, except as required for the benefit of the Company In addition,
Butler agrees not to disclose any private, personal and/or other nonpublic
information about the Company’s current or past (i) employees, (ii) agents,
(iii) directors, (iv) customers, (v) vendors, (vi) independent contract growers,
or (vii) other representatives including the Pilgrim family, Pilgrim Bank and
matters associated with the Pilgrim family estate. Nothing contained herein
shall be deemed to prevent Butler from disclosure if, in the written opinion
of
counsel, such disclosure is legally required to be made and Butler notifies
the
Company in advance of such intended disclosure and, if applicable, gives the
Company a reasonable opportunity to obtain a protective order or confidentiality
treatment. Similarly, the Company agrees not to disclose any private, personal
or any non-public information about Butler; provided that nothing contained
herein shall be deemed to prevent such disclosure as is legally required to
be
made.
ARTICLE
8
RESIGNATION
FROM BOARD OF DIRECTORS
SECTION
8.1:
Butler
has notified the Company that he will not seek or stand for reelection to the
Company’s Board of Directors at the Company’s Annual Meeting of Stockholders
scheduled for January 2008, which is agreed to by the Company
herein.
ARTICLE
9
RESTRICTION
ON SOLICITING EMPLOYEES OF THE COMPANY
SECTION
9.1: From
the date hereof until the expiration of the Consulting Period, Butler agrees
that he will not, either directly or indirectly, hire, solicit, or take away,
or
attempt to hire, solicit or take away, any employees or officers of the Company,
or to encourage any employees or officers of the Company to terminate their
relationships with the Company.
ARTICLE
10
RESTRICTION
ON SOLICITING CUSTOMERS OF THE COMPANY
SECTION
10.1: From
the date hereof until the expiration of the Consulting Period, Butler agrees
that he will not, either directly or indirectly, except in connection with
services Butler might provide to the Company in connection with his employment
or consulting duties, service, call on, do business with, solicit, or take
away,
or attempt to service, call on, do business with, solicit, or take away,
directly or indirectly, as an employee, consultant, broker, sales agent,
partner, shareholder, vendor, corporate officer, director or otherwise, any
of
the Covered Customers of the Company in connection with the sale or marketing
of
poultry products, including for a Competing Business.
ARTICLE
11
RESTRICTION
ON UNFAIR COMPETITION
SECTION
11.1: From
the date hereof until the expiration of the Consulting Period, Butler agrees
that he will not participate in a Competing Business. For the purposes of this
Agreement, "participate in" includes participating, directly or indirectly,
either as an employee, consultant, broker, sales agent, partner, shareholder,
lender, corporate officer, member of a board of directors, or in any other
capacity, in assisting a Competing Business; provided, however, that nothing
herein prohibits or is intended to prohibit Butler from a passive investment
through a mutual fund or through ownership of publicly traded capital stock
of a
corporation which represents less than two percent (2%) of the outstanding
capital stock of such corporation; provided, further, that nothing herein
prohibits Butler from maintaining his status as an independent grower in such
capacity as Butler holds at the time of the execution of this Agreement by
the
parties. The parties agree and acknowledge that this Agreement in no way affects
or supersedes the terms and conditions of Butler’s relationship with the Company
as an independent grower.
ARTICLE
12
INJUNCTION
SECTION
12.1: Butler
and the Company agree that violations of Articles 9 through 11 of this Agreement
would require injunctive relief as the only fully effective remedy. As such,
the
Company shall be entitled to injunctive relief by temporary restraining order,
temporary injunction, and/or permanent injunction in a court of competent
jurisdiction.
ARTICLE
13
SEVERABILITY
SECTION
13.1: If
any provision contained in this Agreement is determined to be void, illegal
or
unenforceable, in whole or in part, then the other provisions contained herein
shall remain in full force and effect as if the provision which was determined
to be void, illegal, or unenforceable had not been contained herein. If the
restrictions in Articles 9 through 11 are deemed unenforceable as written for
any reason, the parties expressly authorize the court or arbitrator making
the
determination as to enforceability to revise, delete, or add to the restrictions
contained in Articles 9 through 11 of the Agreement.
ARTICLE
14
MUTUAL
RELEASE
SECTION
14.1: In
addition to the consideration specified in Article 4, the foregoing and
following mutual promises and agreements and other good and valuable
consideration specified herein, the full receipt and sufficiency of which is
hereby acknowledged, Butler hereby knowingly, voluntarily, and intentionally
agrees to and does settle, release, waive and discharge the Company and the
Other Entities from any and all claims, demands, causes of action, and
declaratory and injunctive relief, whether legal, equitable, or administrative,
whether presently known or not known to him, asserted or unasserted, arising
from any and all actions or inactions through the date of the execution of
this
Agreement concerning, without limitation:
a. Butler’s
employment with the Company;
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b.
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Butler’s
salary, back pay, future pay, bonuses, and all other compensation
(except
for any compensation to which Butler is entitled through December
31, 2007
and any bonus to which Butler may be entitled for fiscal year 2007
payable
pursuant to the Company’s policies in January 2008); past and future
employee retirement, health, and welfare benefits, and all other
employee
benefits; liquidated and unliquidated damages, punitive damages,
attorneys’ fees, costs, and expenses, if
any;
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c.
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All
claims that Butler raised or could have raised regarding his employment
by
the Company under state or federal law including, without limitation:
the
Texas Payday Act, Tex. Lab. Code § 61.001; the Fair Labor Standards
Act 29 U.S.C. § 201 et seq.;
the Age Discrimination in Employment Act, 29 U.S.C. 621 et seq.;
the Americans With Disabilities Act, 42 U.S.C. § 12101
et seq.;
the Texas Commission on Human Rights Act, Tex.
Lab. Code§ 21.001;
Title VII of the Civil Rights Act of 1964, as amended by
the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq.;
and, the Employee Retirement Income Security Act, 29 U.S.C.
§ 1001 et seq.;
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d.
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All
claims to severance benefits that Butler might make under or based
on
Pilgrim’s Pride Corporation’s Severance Plan, Policy No. 300.0250;
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e.
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Any
claim against the Company based on or related to Butler’s contractual or
other business relationship with the Company as an independent grower;
and
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f.
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All
other injuries, losses, liabilities, or damages allegedly caused
to Butler
by the Company and/or the Other Entities under state or federal statutory
or common law occurring on or before the execution of this
Agreement.
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Butler
further agrees that a breach of his covenant to refrain from legal action
against the Company and/or the Other Entities for released claims will also
entitle the Company to an action for additional damages, including, but not
limited to, recovery of their costs, expenses, and attorneys’ fees for
investigation and defense of any such action.
Nothing
herein shall be construed as (1) releasing the Company from its obligations
in
this Agreement or its obligations to perform this Agreement, (2) releasing
the
Company from its future obligations under Butler's grower agreement with the
Company, or (3) waiving any right of Butler to enforce the performance of,
or
seek redress for any breach of, this Agreement.
SECTION
14.2: Butler
hereby represents and warrants that no other person or entity has or has had
any
interests in the claims, demands, obligations, or causes of action released
herein and that Butler has the sole right and exclusive authority to execute
this Agreement and receive the sums specified herein, that Butler has not sold,
assigned, transferred, conveyed or otherwise disposed of any of the claims,
demands, obligations, or causes of action released herein; and that Butler
agrees to indemnify and hold the Company harmless against any such assignment
of
rights, claims, or causes of action.
SECTION
14.3: The Company hereby settles, releases and waives all claims, liens demands,
causes of action, obligations, damages and liabilities of any kind, known or
unknown, that it ever had against Butler or any of his agents, employees,
affiliates, assigns, successors or any other representative acting for or on
behalf of Butler as of the date of this Agreement, including but not limited
to
any claims arising out of his employment with the Company or separation from
the
Company, any claims under any employment or other agreement executed by Butler
and the Company, all claims for any violation of any other federal, state or
local statute, ordinance or regulation, or the Constitution of the United States
or the State of Texas, any claims of personal injury or contract breach, and
all
claims for attorneys’ fees, and any and every other claim arising under the
common law of the State of Texas or any other jurisdictions. Nothing herein
shall be construed as (1) releasing Butler from his obligations in this
Agreement or his obligations to perform this Agreement, (2) releasing Butler
from his future obligations under his grower agreement with the Company, or
(3)
waiving any right of the Company to enforce the performance of, or seek redress
for any breach of, this Agreement.
ARTICLE
15
CONFIDENTIALITY
SECTION
15.1: From
the date of this Agreement forward, the parties agree that all of the
negotiations leading to this Agreement will be kept strictly confidential,
and
will not be divulged or described in any way to any third party except as
required by law. The Company agrees to issue a press release concerning Butler’s
departure from the Company substantially in the form of attachment A to this
Agreement or as otherwise reasonably acceptable to Butler. Butler also
acknowledges that the Company will be filing a copy of this Agreement with
the
Securities and Exchange Commission.
ARTICLE
16
MISCELLANEOUS
SECTION
16.1: This
Agreement contains the entire agreement between the parties. No modifications
or
amendments to any of the terms, conditions or provisions herein may be made
or
enforced unless they are in writing and signed by a party or an officer or
person authorized to bind the party against whom the enforcement of such
amendments, promises or agreements is sought.
SECTION
16.2:
Except
as provided for in Article 12, if a dispute arises from or relates to this
Agreement or any other transaction between the parties, the parties shall
endeavor to settle the dispute first through direct discussions and
negotiations. If the dispute cannot be settled through direct discussions,
the
parties shall endeavor to settle the dispute by mediation under the Mediation
Rules of JAMS Endispute (“JAMS”) before recourse to the arbitration procedures
contained in this Agreement. If a dispute has not been resolved within 90
days after the written notice beginning the mediation process (or a longer
period, if the parties agree to extend the mediation), the mediation shall
terminate and the dispute shall be settled by binding arbitration in Dallas,
Texas or such other location as agreed upon by the parties. The
arbitration will be conducted in accordance with the procedures in this document
and the Rules of JAMS in effect at the time of the arbitration, or such other
rules and procedures as the parties may designate by mutual agreement. In
the event of a conflict, the provisions of this document will
control.
The
arbitration shall be conducted by a single arbitrator as agreed upon by the
parties. If the parties cannot agree on a single arbitrator, the
arbitration will be conducted before a panel of three arbitrators, one selected
by each party and the third arbitrator selected by the parties’ two arbitrators
from a panel provided by JAMS. Any issue concerning the extent to which
any dispute is subject to arbitration, or concerning the applicability,
interpretation, or enforceability of these procedures, including any contention
that all or part of these procedures are invalid or unenforceable, shall be
governed by the agreement between the parties and the Federal Arbitration Act
and resolved by the arbitrators. No potential arbitrator shall be
appointed unless he or she has agreed in writing to abide and be bound by these
procedures.
The
individual arbitrator or the arbitration panel shall have no power to award
non-monetary or equitable relief of any sort. The parties agree that the
arbitrator/panel shall also have no power to award damages inconsistent with
Texas law. In no event, even if any other portion of these provisions is held
to
be invalid or unenforceable, shall the arbitrator/panel have the power to make
an award or impose a remedy that could not be made or imposed by a court
deciding the matter based on Texas law. With the exception of Articles 9, 10
and
11, the Company agrees that it shall not be entitled to monetary damages in
excess of an amount equal to the lesser of the fees paid to Butler during the
Consulting Period in accordance with this Agreement and $2,000,000 as a result
of a breach of any other provision of this Agreement by Butler, unless such
breach is willful or the result of Butler's gross negligence.
Discovery
shall be permitted in connection with the arbitration only to the extent, if
any, expressly authorized by the arbitrator or the arbitration panel upon a
showing of substantial need by the party seeking discovery. All discovery shall
be governed by the Federal Rules of Civil Procedure.
All
aspects of the arbitration shall be treated as confidential. The parties
and the arbitrator/panel may disclose the existence, content or results of
the
arbitration only as provided in the Rules of JAMS or by all the parties.
Before making any such disclosure, a party shall give 30 days written notice
to
all other parties and shall afford such parties a reasonable opportunity to
protect their interests.
The
result of the arbitration will be binding on the parties, and judgment on the
arbitration award may be entered in any court having jurisdiction. The
prevailing party in any dispute that is resolved by this dispute resolution
process shall be entitled to recover from the other party reasonable attorneys’
fees, costs and expenses incurred by the prevailing party in connection with
such dispute resolution process.
Should
any provision of this dispute resolution policy be held invalid or
unenforceable, such provision shall be ineffective to the extent of such
invalidity or unenforceability without invalidating the remainder of such
provision or the remaining portions of this dispute resolution policy
SECTION
16.3:
If any matters in dispute are required to be settled by litigation, such trials
will be decided by a judge. THE
PARTIES WAIVE TRIAL BY JURY IN ANY SUCH ACTION(S) AND CONFIRM THAT THIS WAIVER
IS A MATERIAL INDUCEMENT TO THEIR BUSINESS TRANSACTIONS. For
any such action(s) related to their business transactions or
enforcement of any arbitration, the parties submit themselves to the
jurisdiction of the state or federal courts located in Dallas,
Texas.
SECTION
16.4:
Except
as to the consulting agreement described herein, Butler agrees, without
limitation, to forever waive reinstatement with the Company and further agrees
that he will not inquire, seek or apply for, in any manner whatsoever, any
contract or appointment, employment, commission, job, work, position, duty,
station, task, trade, consignment, or any other relationship with the Company
regardless of department, or division, subsidiary, affiliation, location,
discipline, field, specialty or duty concerned. Any such application for
employment or other relationship will be null and void. In the event that Butler
applies for a position with the Company, the Company is under no obligation
to
hire Butler and may terminate Butler at any time without cause and without
legal
ramifications if it is discovered that Butler has obtained reemployment in
violation of this Section.
SECTION
16.5: Butler
represents that he has been advised to carefully and thoroughly read this
Agreement in its entirety and discuss all aspects of it with his attorney(s),
that he is fully informed and understands the meaning and effect of this
Agreement and that he has had a reasonable amount of time within which to
consider this Agreement.
IN
WITNESS WHEREOF, this Agreement is signed and fully executed on the date
indicated below.
__________________________________
CLIFFORD
E. BUTLER
Date:
__________________________________
MARIGUINN
BUTLER
Date:
|
PILGRIM'S
PRIDE CORPORATION
|
By:
Bo
Pilgrim
Its:
Senior Chairman
Date:
RETIREMENT
& CONSULTING AGREEMENT - PAGE A-
DALDMS/624059.6
ATTACHMENT
A
PILGRIM’S
PRIDE ANNOUNCES PENDING RETIREMENT OF
CLIFFORD
E. BUTLER AS VICE CHAIRMAN
PITTSBURG,
Texas, October 10, 2007 - Pilgrim’s Pride Corporation (NYSE: PPC) today
announced the pending retirement of Clifford E. Butler as vice chairman of
Pilgrim’s Pride. Mr. Butler also has advised the company that he will not stand
for re-election as a director at the Annual Meeting of Stockholders scheduled
for January 2008.
The
leadership at Pilgrim’s Pride expressed its gratitude to Mr. Butler for his 38
years of dedicated service to the company, and, in particular, its appreciation
of his experience, judgment and leadership in addressing the opportunities
and
challenges the company has faced. Mr. Butler will take an active role in the
transition of responsibility until December 31, 2007, and will serve the company
as a consultant after that date.
“My
years
at the company have been extremely fulfilling, and as I prepare to make changes
in my own life, I will continue to work hard to make sure Pilgrim’s Pride is in
a position to grow and succeed,” said Mr. Butler.
About
Pilgrim’s Pride
Pilgrim’s
Pride Corporation is the largest chicken company in the United States and Puerto
Rico and the second-largest in Mexico. Pilgrim’s Pride employs approximately
55,500 people and operates 37 chicken processing and 12 prepared-foods
facilities, with major operations in Texas, Alabama, Arkansas, Florida, Georgia,
Kentucky, Louisiana, North Carolina, Pennsylvania, South Carolina, Tennessee,
Virginia, West Virginia, Mexico and Puerto Rico as well as other facilities
in
Arizona, Iowa, Mississippi, Ohio and Utah.
Pilgrim's
Pride products are sold to foodservice, retail and frozen entree customers.
The
Company's primary distribution is through retailers, foodservice distributors
and restaurants throughout the United States and Puerto Rico and in the Northern
and Central regions of Mexico. For more information, please visit http://www.pilgrimspride.com.
Contact: Gary
Rhodes
Vice President, Corporate Communications & Investor Relations
(903)
434-1495
PILGRIM’S
PRIDE ANNOUNCES PENDING RETIREMENT OF
CLIFFORD
E. BUTLER AS VICE CHAIRMAN
PITTSBURG,
Texas, October 10, 2007 - Pilgrim’s Pride Corporation (NYSE: PPC) today
announced the pending retirement of Clifford E. Butler as vice chairman of
Pilgrim’s Pride. Mr. Butler also has advised the company that he will not stand
for re-election as a director at the Annual Meeting of Stockholders scheduled
for January 2008.
The
leadership at Pilgrim’s Pride expressed its gratitude to Mr. Butler for his 38
years of dedicated service to the company, and, in particular, its appreciation
of his experience, judgment and leadership in addressing the opportunities
and
challenges the company has faced. Mr. Butler will take an active role in the
transition of responsibility until December 31, 2007, and will serve the company
as a consultant after that date.
“My
years
at the company have been extremely fulfilling, and as I prepare to make changes
in my own life, I will continue to work hard to make sure Pilgrim’s Pride is in
a position to grow and succeed,” said Mr. Butler.
About
Pilgrim’s Pride
Pilgrim’s
Pride Corporation is the largest chicken company in the United States and Puerto
Rico and the second-largest in Mexico. Pilgrim’s Pride employs approximately
55,500 people and operates 37 chicken processing and 12 prepared-foods
facilities, with major operations in Texas, Alabama, Arkansas, Florida, Georgia,
Kentucky, Louisiana, North Carolina, Pennsylvania, South Carolina, Tennessee,
Virginia, West Virginia, Mexico and Puerto Rico as well as other facilities
in
Arizona, Iowa, Mississippi, Ohio and Utah.
Pilgrim's
Pride products are sold to foodservice, retail and frozen entree customers.
The
Company's primary distribution is through retailers, foodservice distributors
and restaurants throughout the United States and Puerto Rico and in the Northern
and Central regions of Mexico. For more information, please visit http://www.pilgrimspride.com.
Contact: Gary
Rhodes
Vice
President, Corporate Communications & Investor Relations
(903)
434-1495