exhibit_1039.htm


    
      

      

    

    FIRST
AMENDMENT TO THE

    RETIREMENT
SAVINGS PLAN

    OF

    TYSON
FOODS, INC.

     

    (AS
AMENDED AND RESTATED AS OF JANUARY 1, 2008)

     

    This FIRST AMENDMENT is
made this 20th of November 2009, by TYSON FOODS, INC., a corporation duly
organized and existing under the laws of the State of Delaware (hereinafter
called the “Primary Sponsor”).

     

    WITNESSETH:

     

    WHEREAS, the Primary
Sponsor maintains the Retirement Savings Plan of Tyson Foods, Inc. (the “Plan”),
which was last amended and restated by an indenture generally effective as of
January 1, 2008;

     

    WHEREAS, the Primary
Sponsor now wishes to amend the Plan to eliminate future employer contributions
to Stock Match Accounts (as defined in the Plan) of otherwise eligible
participants;

     

    WHEREAS, the Primary
Sponsor also wishes to amend the Plan to update the Plan for final Treasury
Regulations issued under Section 415 of the Code, to update the Plan for certain
law changes required by the Pension Protection Act of 2006, to update the Plan
for the Heroes Earnings Assistance and Relief Tax Act of 2008, and to update the
Plan for the Worker, Retiree, and Employer Recovery Act of 2008;
and

     

    WHEREAS, the Board of
Directors of the Primary Sponsor has authorized and approved the adoption of
these amendments.

     

    NOW, THEREFORE, the Primary
Sponsor does hereby amend the Plan, effective as of January 1, 2008, except as
otherwise provided herein, as follows:

     

    1.           By
deleting the existing Section 1.1(c) and substituting therefor the
following:

     

    “(c)           ‘Stock
Match Account’ which shall reflect a Participant’s interest, if any, in
contributions made by a Plan Sponsor under Plan Section 3.3 respecting pay
periods beginning prior to December 27, 2009.”

     

    2.           By
deleting, effective for pay periods beginning on and after December 27, 2009,
the existing Section 1.3(c) and substituting therefore the
following:

     

    “(c)           in
determining the amount of contributions under Plan Section 3 (other than Section
3.3) and allocations under Plan Section 4 made by or on behalf of an Employee,
Annual Compensation shall not include (1) bonus compensation, except annual
bonus compensation of only those Participants who are not eligible to
participate in the Executive Savings Plan of Tyson Foods, Inc. (or any successor
plan) and other regularly scheduled bonus payments, (2) special non-recurring
forms of remuneration; and (3) employer contributions under the Tyson Foods,
Inc. Employee Stock Purchase Plan;”

     

    3.           By
deleting, effective for pay periods beginning on and after December 27, 2009,
the existing Section 1.3(e) in its entirety and substituting therefore the
following:

     

    “(e)           [Reserved.]”

     

    4.           By
deleting the word “and” at the end of the existing Section 1.3(e), by deleting
the period at the end of the existing Section 1.3(f) and substituting therefore
“; and”, and by adding the following new Section 1.3(g) to read as
follows:

     

    “(g)           effective
January 1, 2009, in accordance with Code Section 414(u)(12), Annual Compensation
shall include any differential wage payment (within the meaning of Code Section
3401(h)(2)) made by a Plan Sponsor to an individual who does not currently
perform services for the Plan Sponsor by reason of qualified military service
(within the meaning of Code Section 414(u)(5)) to the extent those payments do
not exceed the amounts the individual would have received if the individual had
continued to perform services for the Plan Sponsor.”

     

    5.           By
deleting, effective for pay periods beginning on and after December 27, 2009,
the existing Section 2.8 in its entirety and substituting therefore the
following:

     

    “2.8           [Reserved.]”

     

    6.           By
deleting Section 3.1(b)(2) and by substituting therefore the
following:

     

    “(2)           not
later than the immediately following April 15, the Plan may distribute the
amount designated to it under Paragraph (1) above, as adjusted in accordance
with Code Section 402(g) and applicable Treasury Regulations to reflect income,
gain, or loss attributable to it, and reduced by any ‘Excess Deferral Amounts,’
as defined in Appendix C hereto, previously distributed or recharacterized with
respect to the Participant for the Plan Year beginning with or within that
taxable year.”

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    7.           By
deleting, effective for pay periods beginning on and after December 27, 2009,
the existing Section 3.3 in its entirety and substituting therefore the
following:

     

    “3.3           [Reserved.]”

     

    8.           By
deleting, effective for pay periods beginning on and after December 27, 2009,
the existing Section 4.1 in its entirety and substituting therefore the
following:

     

    “4.1           Allocation
of Contributions.  As soon as reasonably practicable following
the date of withholding by the Plan Sponsor, if applicable, and receipt by the
Trustee, Plan Sponsor contributions made on behalf of each Participant under
Sections 3.1 and 3.2, and Rollover Amounts contributed by the Participant, shall
be allocated to the Salary Deferral Contribution Account, Employer Contribution
Account and Rollover Account, respectively, of the Participant on behalf of whom
the contributions were made.

     

    9.           By
adding, effective January 1, 2009, a new Section 6.6, as follows:

     

    “6.6           Special
Rule for Distributions During Uniformed Services.  A
Participant who is performing services in the uniformed services (as defined in
Chapter 43 of Title 38 of the United States Code) while on active duty for a
period of more than thirty (30) days shall be treated as having been severed
from employment during such period for purposes of Code Section
401(k)(2)(B)(i)(I) and may elect to receive a distribution of all or a portion
of his Salary Deferral Contribution Account, including Catch-Up
Contributions.  Any request for a distribution under this Section must
be made in the manner prescribed by the Plan Administrator and in accordance
with rules and conditions as the Plan Administrator may from time to time
adopt.  If a Participant elects a distribution pursuant to this
Section, the Participant may not make Elective Deferrals, including Catch-Up
Contributions, to the Plan or any other plan maintained by the Plan Sponsor
during the six-month period beginning on the date of the
distribution.”

     

    10.           By
deleting, effective January 1, 2011, the existing Section 7.1(b)(1) in its
entirety and substituting therefore the following:

     

    “(1)           a
lump sum payment in cash of the entire Account;”

     

    11.           By
adding the following to the end of Section 10.3:

     

    “Notwithstanding
the foregoing, if the Distributee is a non-spouse Beneficiary of a deceased
Participant and a direct trustee-to-trustee transfer is made to an individual
retirement account described in Code Section 408(a) or an individual retirement
annuity described in Code Section 408(b) (other than an endowment
contract):

     

    (a)           the
transfer shall be treated as an Eligible Rollover Distribution;

     

    (b)           the
individual retirement plan shall be treated as an inherited individual
retirement account or individual retirement annuity (within the meaning of Code
Section 408(d)(3)(C)); and

     

    (c)           Code
Section 401(a)(9)(B) (other than clause (iv) thereof) shall apply to such
plan.”

     

    12.           By
adding, effective January 1, 2009, the following to the end of Section
10.5:

     

    “Notwithstanding
the foregoing provisions of this Section 10.5 and Appendix E, a Participant or
Beneficiary who would have been required to receive minimum required
distributions for 2009 but for the enactment of Section 401(a)(9)(H) of the Code
(the ‘2009 RMDs’), and who would have satisfied that requirement by receiving
distributions that are (a) equal to the 2009 RMDs or (b) one or more payments in
a series of substantially equal distributions (that include the 2009 RMDs) made
at least annually and expected to last for life (or life expectancy) of the
Participant, the joint lives (or joint life expectancy) of the Participant and
the Participant’s designated Beneficiary, or for a period of at least ten (10)
years (the ‘Extended 2009 RMDs’), will not receive those distributions for 2009
unless the Participant or Beneficiary chooses to receive such
distributions.  Such Participants and Beneficiaries will be given the
opportunity to elect to receive the distributions and, notwithstanding Section
10.3 of the Plan, and solely for purposes of applying the direct rollover
provisions of the Plan, 2009 RMDs and Extended 2009 RMDs will be treated as
Eligible Rollover Distributions.”

     

     

    Except as specifically
amended hereby, the Plan shall remain in full force and effect prior to this
First Amendment.

     

    IN WITNESS
WHEREOF, the Primary Sponsor has caused this First Amendment to be executed as
of the day and year first above written.

     

     

    
      	 
      	 
      	
              TYSON
      FOODS, INC.

            
	 
      	 
      	 
      
	 
      	
              By:

            	
               
      /s/ Dennis Leatherby

            
	 
      	 
      	
               
      Dennis Leatherby

            
	 
      	
              Title:

            	
                Exec.
      Vice President and Chief

            
	 
      	 
      	
                Financial
      Officer