exv10w39



 






EXHIBIT
10.39

EXECUTION VERSION




THIRD AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT




     THIS THIRD AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT (this “Amendment”) is made and entered
into as of April 23, 2005, by and among Swift Foods Company, a Delaware corporation (the
“Company”), and John Simons (“Executive”).



RECITALS




     WHEREAS, the Company and Executive are parties to the Executive Employment Agreement, dated
May 20, 2002, as amended by that certain First Amendment to Executive Employment Agreement, dated
July 12, 2002, and that certain Second Amendment to Executive Employment Agreement, dated November
3, 2004, each as attached hereto as Exhibit A (as so amended, the “Employment Agreement”);



     WHEREAS, capitalized terms used herein but not defined herein shall have the meanings assigned
to them in the Employment Agreement; and



     WHEREAS, Executive has announced his intention to resign his employment with the Company and
its affiliates, and in contemplation of Executive’s termination of employment with the Company and
its affiliates, the Employment Agreement is being amended to reflect certain agreements regarding
such termination and Executive’s post-termination role with the Company.



AGREEMENT




     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:


1. Termination of Employment. The parties hereby represent and warrant that prior to
the Termination Date (as defined below), Executive’s employment relationship with the Company and
its affiliates was pursuant to and governed solely by the Employment Agreement. Executive’s
employment with the Company is hereby terminated effective as of the date that Executive signs this
Amendment (the “Termination Date”). In addition, effective as of the Termination Date, any and all
of Executive’s other appointments and positions (including positions as a director) that he may
hold with the Company or any of its affiliates are hereby terminated. Executive agrees to execute
all further documents that the Company may reasonably request of him to effectuate such
terminations.



2. Termination Consideration.




     (a) Cash Payments. In connection with Executive’s termination of employment, the Company
shall cause to be paid to Executive the following consideration:



          (i) $2,247,500 by the close of business on the third business day following the Reaffirmation
Date (as defined in paragraph 16);




 









 








          (ii) $146,394 (which amount equals the full amount of the Accrued Obligations) by the close of
business on the third business day following the Reaffirmation Date; and




          (iii) an amount equal to the Accrued Investments, payable in accordance with the terms and
conditions of the Investment Plans.




     (b) Participation in Medical Insurance Plan. In connection with Executive’s termination of
employment, for a period of 12 months commencing on the Termination Date, Executive (and members of
his family) shall be entitled to continue their participation in the Company’s medical insurance
plan (in accordance with the terms of such plan and on the same basis as Executive participated in
such plan immediately prior to the Termination Date); provided that Executive shall be responsible
for the cost of premiums for coverage under such plan that would have been payable by Executive had
he remained an employee of the Company during the period of coverage, and the Company shall be
entitled to deduct the amount of such premiums from the amounts otherwise payable to Executive
pursuant to the terms hereof. This period shall be credited against any period for which Executive
and/or members of his family are entitled to continuation coverage under Section 4980B of the
Internal Revenue Code of 1986, as amended, and Sections 601-609 of the Employee Retirement Income
Security Act of 1974, as amended.


3. Stock Options.




     (a) General. Executive hereby represents and warrants that, except for the stock option
agreements attached hereto as Exhibit B (the “Option Agreements”), he is not a party to any
stock option, stock appreciation right or similar agreement granting Executive the right to acquire
or benefit from the appreciation in value of capital stock of the Company or any of its affiliates.



     (b) Vesting. On the day following the Reaffirmation Date (assuming no revocation of this
Amendment by Executive), all of Executive’s options issued under the Option Agreements and the
plans pursuant to which such options were issued that are not then vested shall be vested in full.
Executive shall be permitted to exercise, in accordance with the terms of the options, any and all
such rights until the earlier of (i) the date the option would otherwise expire in accordance with
its terms, (ii) the 270th day after a Qualifying Public Offering or (iii) the 90th day after the
completion of a merger, combination, share exchange or similar transaction involving the Company
pursuant to which the securities for which the option is then exercisable are listed on a national
securities exchange or the Nasdaq National Market System or any successor thereto.



     (c) Purchase of Options. Pursuant to paragraph 7 of that certain Non-Qualified Stock Option Agreement dated September 19,
2002 under which options to purchase 6,400,000 shares of common stock of the Company were issued to
Executive (the “Subject Option Agreement”), and in connection with Executive’s termination of
employment, the Company shall purchase from Executive, and Executive shall transfer and sell to the
Company, free and clear of all encumbrances, by the close of business on the third business day
after the Reaffirmation Date (subject to paragraph 6 hereof), Executive’s options to purchase
6,400,000 shares of common



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stock of the Company issued pursuant to the Subject Option Agreement for
cash consideration of $5,504,000. Executive shall, in exchange for such consideration, deliver to
the Company for cancellation at the closing of such sale the Subject Option Agreement (Executive’s
Option Agreement other than the Subject Option Agreement, being referred to herein as the
“Remaining Option Agreement”). Upon the closing of such purchase and sale, Executive shall have no
further rights with respect to the options sold or the Subject Option Agreement. The terms of this
paragraph 3(c) shall constitute the notice of purchase required under the Subject Option Agreement.



4. Purchase of Stock. Pursuant to Section 4.5 of that certain Stockholders Agreement
dated as of September 19, 2002 among HMTF Rawhide, L.P., ConAgra Foods, Inc., Hicks, Muse, Tate &
Furst Incorporated, the Company and the other individuals named therein, as amended (the
“Stockholders Agreement”), and in connection with Executive’s termination of employment, the
Company shall purchase from Executive, and Executive shall transfer and sell to the Company, free
and clear of all encumbrances, by the close of business on the third business day after the
Reaffirmation Date (subject to paragraph 6 hereof), 1,237,151 shares of common stock of the Company
owned by Executive for cash consideration of $1,249,523. Subject to paragraph 6 hereof, Executive
shall, in exchange for such consideration, deliver to the Company at the closing of such sale stock
certificates representing such shares to the Company, with such certificates being duly endorsed
(or accompanied by duly executed stock powers) and otherwise in good form for delivery. Upon the
closing of such purchase and sale, Executive shall have no further rights with respect to such
shares. The terms of this paragraph 4 shall constitute the notice of purchase required under the
Stockholders Agreement.



5. Consulting Consideration. As consideration for the Consulting Services (as defined
in paragraph 10), the Company shall cause to be paid to Executive an amount equal to $166,667 by
the close of business on the third business day following the Reaffirmation Date and monthly
payments in the amount of $10,000 per month (with each monthly payment being due and payable on the
last business day of the month, with the first payment being made on the last business day of the
month after the month in which the Reaffirmation Date occurs) during the Consulting Period (as
defined in paragraph 10).



6. Debt Agreement Restrictions. Payment of the amounts under paragraphs 3 and 4
hereof shall in all events be subject to compliance with any and all restrictions imposed by
agreements evidencing the Company’s and its affiliates’ indebtedness, and under no circumstances
shall the Company be required pursuant
to the terms hereof to make any payments under paragraphs 3 and 4 hereof if such payments would
violate any restrictions in such agreements. The Company agrees to use all commercially reasonable
efforts to obtain any waivers of any applicable restrictions as promptly as practicable. In the
event that the Company is able to pay a portion, but not all, of the amounts payable under
paragraphs 3 and 4 hereof within the timeframes set forth herein without restriction under the
agreements evidencing the Company’s and its affiliates’ indebtedness, the Company shall then pay
such portion, and Executive shall be obligated to surrender a corresponding portion of securities
in exchange for such payment at such time. If the Company later is able to pay additional amounts
due hereunder without restriction, the Company shall pay such amounts, and Executive shall deliver
securities in exchange therefore, within three business days of the removal of the applicable
restriction. Notwithstanding the Company’s inability to make payments hereunder due to such
restrictions,




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but subject to paragraph 16 hereof, Executive shall be bound by all terms and
conditions of this Amendment and the applicable provisions of the Employment Agreement, including,
without limitation, paragraphs 6 and 9 of the Employment Agreement, as of the Termination Date.



7. Taxes. The payments to Executive hereunder shall be subject to applicable federal,
state and local withholding taxes. Executive agrees that, to the extent that any individual
federal or state taxes of any kind may be due as a result of any such payment to Executive,
Executive shall be solely responsible for such taxes and will indemnify, defend, and hold harmless
the Company in the event there is any claim against the Company for such taxes.



8. General Release and Covenant Not to Sue.




          (a) EXECUTIVE, ON BEHALF OF HIMSELF, HIS FAMILY, ATTORNEYS, HEIRS, ESTATE, AGENTS, EXECUTORS,
REPRESENTATIVES, ADMINISTRATORS AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (TOGETHER THE
“EXECUTIVE PARTIES”), HEREBY GENERALLY RELEASES AND FOREVER DISCHARGES THE COMPANY, ITS
PREDECESSORS, SUCCESSORS, ASSIGNS, PARENTS, SUBSIDIARIES, AND AFFILIATES, AND EACH OF THE FOREGOING
ENTITIES’ AND PERSONS’ PAST, PRESENT AND FUTURE DIRECT OR INDIRECT STOCKHOLDERS, MEMBERS, MANAGERS,
PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, PRINCIPALS, INSURERS, BENEFIT
PLANS (AND EACH SUCH PLAN’S FIDUCIARIES, ADMINISTRATORS, TRUSTEES, SPONSORS, COMMITTEES AND
REPRESENTATIVES) AND ATTORNEYS (TOGETHER THE “COMPANY PARTIES”) FROM ANY AND ALL CLAIMS,
COMPLAINTS, CHARGES, DEMANDS, LIABILITIES, SUITS, DAMAGES, LOSSES, EXPENSES, ATTORNEYS’ FEES,
OBLIGATIONS OR CAUSES OF ACTION (COLLECTIVELY “CLAIMS”), KNOWN OR UNKNOWN, OF ANY KIND AND EVERY
NATURE WHATSOEVER, AND WHETHER OR NOT ACCRUED OR MATURED, WHICH ANY OF THEM MAY HAVE, ARISING OUT
OF OR RELATING TO ANY TRANSACTION, DEALING, RELATIONSHIP, CONDUCT, ACT OR OMISSION, OR ANY OTHER
MATTERS OR THINGS OCCURRING OR EXISTING AT ANY TIME PRIOR TO AND INCLUDING THE TERMINATION DATE,
SUBJECT TO THE LIMITATIONS SET FORTH IN THE FOLLOWING SENTENCE. THIS RELEASE INCLUDES BUT IS NOT
LIMITED TO ANY CLAIMS AGAINST ANY OF THE COMPANY PARTIES BASED ON, RELATING TO OR ARISING
UNDER WRONGFUL DISCHARGE, RETALIATION, BREACH OF CONTRACT (WHETHER ORAL OR WRITTEN), TORT, FRAUD,
DEFAMATION, NEGLIGENCE, PROMISSORY ESTOPPEL, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE AGE
DISCRIMINATION IN EMPLOYMENT ACT, THE AMERICANS WITH DISABILITIES ACT, EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, THE WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT, THE FAMILY AND MEDICAL
LEAVE ACT OR ANY OTHER FEDERAL, STATE OR LOCAL LAW RELATING TO EMPLOYMENT, CIVIL OR HUMAN RIGHTS,
OR DISCRIMINATION IN EMPLOYMENT (BASED ON AGE OR ANY OTHER FACTOR) IN ALL CASES ARISING OUT OF OR
RELATING TO (I) EXECUTIVE’S EMPLOYMENT BY THE COMPANY OR ANY OF ITS AFFILIATES, (II) THE EMPLOYMENT
AGREEMENT (SUBJECT TO THE TERMS OF THIS AMENDMENT), (III) THE SUBJECT OPTION AGREEMENT, (IV)
EXECUTIVE’S INVESTMENT IN THE




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COMPANY OR ANY OF ITS AFFILIATES, (V) EXECUTIVE’S SERVICES AS AN
OFFICER, DIRECTOR OR EMPLOYEE OF THE COMPANY OR ANY OF ITS AFFILIATES, OR (VI) OTHERWISE RELATING
TO THE TERMINATION OF EXECUTIVE’S EMPLOYMENT OR SERVICES OR TO ANY OTHER TRANSACTION, DEALING OR
AGREEMENT BETWEEN EXECUTIVE AND THE COMPANY OR ANY OF ITS AFFILIATES; PROVIDED,
HOWEVER, THAT THIS GENERAL RELEASE WILL NOT LIMIT OR RELEASE (I) EXECUTIVE’S RIGHTS UNDER
THIS AMENDMENT AND THE EMPLOYMENT AGREEMENT, AS AMENDED HEREBY, (II) EXECUTIVE’S RIGHTS UNDER THE
REMAINING OPTION AGREEMENT OR (III) EXECUTIVE’S RIGHTS TO INDEMNIFICATION FROM THE COMPANY IN
RESPECT OF HIS SERVICES AS A DIRECTOR, OFFICER OR EMPLOYEE OF THE COMPANY OR ANY OF ITS AFFILIATES
TO THE MAXIMUM EXTENT ALLOWED BY LAW, ANY INDEMNIFICATION AGREEMENTS TO WHICH EXECUTIVE AND THE
COMPANY OR ANY OF ITS AFFILATES ARE PARTIES, OR THE CERTIFICATES OF INCORPORATION OR BY-LAWS (OR
LIKE CONSTITUTIVE DOCUMENTS) OF THE COMPANY OR ANY OF ITS AFFILIATES. EXECUTIVE, ON BEHALF OF
HIMSELF AND THE EXECUTIVE PARTIES, HEREBY COVENANTS FOREVER NOT TO ASSERT, FILE, PROSECUTE,
COMMENCE, INSTITUTE (OR SPONSOR OR PURPOSELY FACILITATE ANY PERSON IN CONNECTION WITH THE
FOREGOING), ANY COMPLAINT OR LAWSUIT OR ANY LEGAL, EQUITABLE, ARBITRAL OR ADMINISTRATIVE PROCEEDING
OF ANY NATURE, AGAINST ANY OF THE COMPANY PARTIES IN CONNECTION WITH ANY CLAIMS RELEASED IN THIS
PARAGRAPH 8(a), AND REPRESENTS AND WARRANTS THAT NO OTHER PERSON OR ENTITY HAS INITIATED OR, TO THE
EXTENT WITHIN HIS CONTROL, WILL INITIATE ANY SUCH PROCEEDING ON HIS BEHALF, AND THAT IF SUCH A
PROCEEDING IS INITIATED, EXECUTIVE SHALL ACCEPT NO BENEFIT THEREFROM.




          (b) THE COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS SUBSIDIARIES AND THE COMPANY PARTIES,
HEREBY GENERALLY RELEASES AND FOREVER DISCHARGES THE EXECUTIVE PARTIES FROM ANY AND ALL CLAIMS,
KNOWN OR UNKNOWN, OF ANY KIND AND EVERY NATURE WHATSOEVER, AND WHETHER OR NOT ACCRUED OR MATURED,
WHICH ANY OF THEM MAY HAVE, ARISING OUT OF OR RELATING TO ANY TRANSACTION,
DEALING, RELATIONSHIP, CONDUCT, ACT OR OMISSION, OR ANY OTHER MATTERS OR THINGS OCCURRING OR
EXISTING AT ANY TIME PRIOR TO AND INCLUDING THE TERMINATION DATE; PROVIDED,
HOWEVER, THAT THIS GENERAL RELEASE WILL NOT LIMIT OR RELEASE (I) THE COMPANY’S RIGHTS UNDER
THIS AMENDMENT AND THE EMPLOYMENT AGREEMENT AS AMENDED HEREBY, (II) THE COMPANY’S RIGHTS UNDER THE
REMAINING OPTION AGREEMENT, OR (III) THE COMPANY’S RIGHTS AGAINST EXECUTIVE WITH RESPECT TO ANY
FRAUDULENT ACTIVITY. THE COMPANY ON BEHALF OF ITSELF, ITS SUBSIDIARIES AND THE COMPANY PARTIES,
HEREBY COVENANTS FOREVER NOT TO ASSERT, FILE, PROSECUTE, COMMENCE, INSTITUTE (OR SPONSOR OR
PURPOSELY FACILITATE ANY PERSON IN CONNECTION WITH THE FOREGOING), ANY COMPLAINT OR LAWSUIT OR ANY
LEGAL, EQUITABLE, ARBITRAL OR ADMINISTRATIVE PROCEEDING OF ANY NATURE, AGAINST ANY OF THE EXECUTIVE
PARTIES IN CONNECTION WITH ANY CLAIMS RELEASED IN




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THIS PARAGRAPH 8(b), AND REPRESENTS AND WARRANTS
THAT NO OTHER PERSON OR ENTITY HAS INITIATED OR, TO THE EXTENT WITHIN ITS CONTROL, WILL INITIATE
ANY SUCH PROCEEDING ON ITS BEHALF, AND THAT IF SUCH A PROCEEDING IS INITIATED, SWIFT FOODS AND ITS
SUBSIDIARIES AND THE COMPANY PARTIES SHALL ACCEPT NO BENEFIT THEREFROM.



9. Cooperation. Executive agrees to cooperate with the Company as reasonably
requested by the Company by responding to questions, attending depositions, administrative
proceedings and court hearings, executing documents, and cooperating with the Company and its
accountants and legal counsel with respect to legal and intellectual property matters, business
issues, and/or claims, administrative or arbitral proceedings and litigation of which he has or is
believed to have personal or corporate knowledge. Executive further agrees, except as required by
subpoena or other applicable legal process (after the Company has been given reasonable notice and
opportunity to seek relief from such subpoena or other legal process), to maintain, in strict
confidence, any information of which he has knowledge regarding current and/or future claims,
administrative or arbitral proceedings and litigation. Executive agrees, except as required by
subpoena or other applicable legal process (after the Company has been given reasonable notice and
opportunity to seek relief from such requirement), not to communicate with any party(ies), their
legal counsel or others adverse to the Company in any such claims, administrative or arbitral
proceedings or litigation except through the Company’s designated legal counsel. Executive also
shall make himself available at reasonable times and upon reasonable notice to answer questions or
provide other information within his possession and requested by the Company relating to the
Company, its affiliates and/or their respective operations in order to facilitate the smooth
transition of Executive’s duties to his successor.



10. Consulting Arrangement.




     (a) Consulting Services. Effective as of the Termination Date, the Company hereby retains Executive to render such
consulting and advisory services (the “Consulting Services”) as the Company may reasonably request
from time to time during the term of the consulting arrangement set forth in this paragraph 10
concerning all aspects of the Company’s business, including, but not limited to, consulting
regarding operational matters, employee relations, and strategic plans. Executive hereby accepts
such engagement and agrees to perform such services for the Company upon the terms and conditions
set forth herein. Executive will perform the Consulting Services at such times and places as the
Executive Committee of the Company’s Board of Directors, from time to time, shall reasonably
request. The Company shall, in accordance with the Company’s normal expense reimbursement policy,
reimburse Executive for reasonable documented out-of-pocket expenses authorized in advance by the
Company that Executive incurs in the course of providing the Consulting Services. Notwithstanding
anything herein to the contrary, during the Consulting Period (as hereinafter defined), Executive
shall be an independent contractor with authority to select the means and method of performing the
Consulting Services. During the Consulting Period, Executive shall not be an employee or agent of
the Company, and any action taken by Executive which is not authorized by this Amendment or any
other agreement between the Company or any of its affiliates and Executive will not bind the
Company or create any claim against the Company. Unless otherwise specifically authorized by this
Amendment or any other agreement between the Company and Executive, during the



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Consulting Period,
Executive shall have no authority to transact any business or make any representations or promises
in the name of the Company or its affiliates.




     (b) Term. Unless terminated at an earlier date in accordance with subparagraph (c) of this
paragraph 10, the term of the consulting arrangement shall be for the period commencing as of the
Termination Date and ending at 5:00 p.m., Central Time, on the six-month anniversary of the
Termination Date (the “Consulting Period”).



     (c) Termination of Consulting Arrangement. Notwithstanding any contrary provision
contained elsewhere in this Amendment, this paragraph 10 and the consulting arrangement created by
this paragraph 10 between the Company and Executive (i) may be terminated prior to the expiration
of the term set forth in subparagraph (b) by the Company for any reason or no reason at all, and
(ii) shall terminate automatically upon the death of Executive. Termination of this consulting
arrangement by the Company pursuant to clause (i) of the immediately preceding sentence shall be
evidenced by a written notice delivered to Executive, which notice shall specify the termination
date. Executive may terminate the consulting agreement in the event of a breach by the Company of
its obligations under this Amendment which remains uncured 15 days after written notice thereof is
received by the Company. Upon a termination of the consulting arrangement set forth in this
paragraph 10, neither of the parties hereto shall have any further duty or obligation under this
paragraph 10; provided, however, that termination of the consulting arrangement
shall not affect the duties and obligations set forth in the other sections of this Amendment or
the applicable sections of the Employment Agreement, including, without limitation, paragraph 9 of
the Employment Agreement, and, within 10 days following the termination, the Company shall pay to
Executive
the remainder of any monthly payments owed to Executive under paragraph 5 in a lump sum payment.


11. Non-Disparagement. Executive and the Company each agrees to refrain from engaging
in any conduct, or from making any comments or statements, that have the purpose or effect of
harming the reputation or goodwill of Executive, on the one hand, or the Company or any of its
affiliates on the other hand.



12. Injunctive Relief. Executive hereby expressly acknowledges that any breach or
threatened breach by him of any of his obligations set forth in paragraphs 8 and 11 of this
Amendment and paragraphs 6 and 9 of the Employment Agreement may result in significant and
continuing injury and irreparable harm to the Company, the monetary value of which would be
impossible to establish. Therefore, Executive agrees that the Company shall be entitled to
injunctive relief in a court of appropriate jurisdiction with respect to such provisions. Such
injunctive remedies shall not be deemed the exclusive remedies, but shall be in addition to all
remedies available at law or in equity to the Company, including, without limitation, the recovery
of damages from Executive and Executive’s agents. Further, if Executive violates the covenants and
restrictions herein and the Company brings legal action for injunctive or other equitable relief,
Executive agrees that the Company shall not be deprived of the benefit of the full period of the
restrictive covenant, as a result of the time involved in obtaining such relief. Accordingly,
Executive agrees that the provisions in this paragraph shall have a duration determined pursuant to
paragraph 9 of the Employment Agreement, computed from the date the relief is granted. Executive
also hereby waives any requirement for the securing or posting of




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any bond in connection with the
obtaining of any such equitable relief. The parties further agree that this provision is a
material inducement to the Company to enter into this Amendment.



13. Mail. The Company may open and answer, and authorize others to open and answer,
all mail communications and other correspondence addressed to Executive relating to the Company or
any of its affiliates or to Executive’s employment with the Company or any of its affiliates, and
Executive shall promptly refer to the Company all inquiries, mail communications, and
correspondence received by him relating to the Company or any of its affiliates or to Executive’s
employment with the Company or any of its affiliates. If any such mail, communications or
correspondence received by the Company includes any threat of any claim against Executive
personally, the Company shall promptly notify Executive thereof. The Company will promptly forward
to Executive any of Executive’s personal mail, communications or correspondence received by the
Company, unopened to the extent it is reasonably ascertained to be of a personal nature.



14. Indemnification. EXECUTIVE AGREES, WARRANTS, AND REPRESENTS TO THE COMPANY THAT
EXECUTIVE HAS FULL EXPRESS AUTHORITY TO RELEASE AND SETTLE ALL CLAIMS THAT ARE THE SUBJECT OF
PARAGRAPH 8(a) OF THIS AMENDMENT AND
THAT EXECUTIVE HAS NOT GIVEN OR MADE ANY ASSIGNMENT TO ANYONE, INCLUDING EXECUTIVE’S FAMILY OR
LEGAL COUNSEL, OF ANY SUCH CLAIMS AGAINST ANY PERSON OR ENTITY ASSOCIATED WITH OR ANY COMPANY
PARTIES. TO THE EXTENT THAT ANY SUCH CLAIMS MAY BE BROUGHT BY PERSONS OR ENTITIES CLAIMING BY,
THROUGH OR UNDER EXECUTIVE, HIS RESPECTIVE HEIRS, SUCCESSORS, OR ASSIGNS, THEN EXECUTIVE FURTHER
AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THE COMPANY OR ANY COMPANY PARTY, ITS AGENTS, AND
ITS SUCCESSORS FROM ANY LAWSUIT OR OTHER PROCEEDING, JUDGMENT, OR SETTLEMENT ARISING FROM SUCH
CLAIMS. EXECUTIVE FURTHER HEREBY ASSIGNS TO THE COMPANY ALL CLAIMS RELEASED BY EXECUTIVE PURSUANT
TO PARAGRAPH 8(a).



15. No Right to Additional Compensation. Except as provided in this Amendment, the
Employment Agreement as amended hereby, and in the Remaining Option Agreement, neither the Company
nor any of its predecessors, parents, successors, assigns or affiliates shall have any further
obligation to Executive in connection with the Employment Agreement or Executive’s employment by
the Company or any of its affiliates, including, but not limited to, severance, compensation
(including but not limited to deferred compensation, employment contracts, stock options, bonuses
and commissions), health insurance, life insurance, disability insurance, club dues, vehicle
allowances, company plane privileges, vacation pay, sick pay and any similar obligations.



16. Execution. Executive acknowledges and agrees that he has 21 days to consider this
Amendment before accepting, although he may sign this Amendment earlier. The parties agree that
any change to this Amendment, whether material or immaterial, shall not restart the running of this
21 day period, which the parties agree began on the date first written above. Upon execution,
Executive will have 7 days to revoke this Amendment by delivery of a written notice to the Company.
This Amendment shall not become effective or enforceable, the consideration




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set forth in this
Amendment shall not be paid, and the vesting of options pursuant to paragraph 3 hereof shall not
occur, until after the expiration of this 7 day period without revocation by Executive (the last
day of such 7 day period being referred to herein as the “Reaffirmation Date”). At its option, the
Company may require, as a condition of Executive receiving the consideration set forth in this
Amendment, Executive to confirm in writing that he has not revoked this Amendment during the 7 day
period. Executive’s acceptance of any of the consideration set forth in this Amendment shall
constitute his acknowledgment that he did not revoke this Amendment during this 7 day period.



17. Employment Agreement. This Amendment replaces and supersedes in their entirety
paragraphs 1, 2, 3, 4, and 10 of the Employment Agreement. Executive hereby acknowledges and
affirms his agreement to the remaining provisions of the Employment Agreement, including, without
limitation, paragraphs 6 (Confidential Information) and 9 (Non-Competition) of the Employment
Agreement. Executive also acknowledges and agrees that the consideration for his performance under
paragraphs 6 and
9 of the Employment Agreement includes the consideration set forth in paragraph 2 of this Amendment
and the purchase of his options and shares of common stock pursuant to paragraphs 3 and 4 of this
Amendment. In the event of a conflict between the terms of the Employment Agreement that remain in
effect and this Amendment, the terms of this Amendment shall control. For purposes of the
provisions of the Employment Agreement that remain in effect, “Date of Termination” shall have the
same meaning given to the term “Termination Date” in this Amendment.



18. Attorneys’ Fees. The Company shall pay the documented attorneys’ fees of
Executive incurred in connection with the negotiation and execution of this Amendment in an amount
not to exceed $5,000, with such payment to be made within 3 business days after delivery to the
Company of appropriate documentation of such fees.



19. Technology Equipment. Executive shall be entitled to retain after the Termination
Date his home computer and blackberry device previously issued to him by the Company; provided that
all charges with respect to such equipment (e.g., monthly service charges) shall be the sole
responsibility of Executive after the Termination Date.



20. Charter Provisions; Directors’ and Officers’ Liability Insurance Policy. The
Company agrees that it has not, as of the date hereof, amended the indemnification provisions
included in its Certificate of Incorporation or amended or terminated its directors’ and officers’
liability insurance policy.



21. Applicable Law. This Amendment shall be governed by and construed in accordance
with the laws of the State of Delaware without reference to principles of conflict of laws.



22. Counterparts. This Amendment may be executed in two or more counterparts.



23. Advice to Consult with Attorney. Executive is advised to consult with an attorney
prior to executing this Amendment.



24. Survival. The terms and conditions of this Amendment shall survive the
termination of Executive’s employment.




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[Remainder of page is intentionally blank.]




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     IN WITNESS WHEREOF, Executive has hereunto set Executive’s hand and the Company has caused
this Amendment to be executed in its name on its behalf, all as of the day and year first above
written.




EXECUTIVE



	 	 	 
	 

	 	/s/ John Simons
	 

	 	 
	 

	 	By: John Simons







SWIFT FOODS COMPANY



	 	 	 	 	 
	 

	 	By:
	 	/s/ Danny L. Herron

	 

	 	 	 	 
	 

	 	Name:

Title:
	 	Danny L. Herron

EVP and CFO





[SIGNATURE
PAGE TO THIRD AMENDMENT TO EMPLOYMENT AGREEMENT]


 









 






EXHIBIT A




Employment Agreement





A-1









 








Execution Copy




EXECUTIVE EMPLOYMENT AGREEMENT




     THIS EXECUTIVE EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into as of the 20th
day of May by and between S&C Holdco, Inc. (to be renamed Swift & Company), a Delaware corporation
(together with its successors and assigns permitted hereunder, the “Company”), and John Simons (the
“Executive”).



     WHEREAS, ConAgra Foods, Inc., a Delaware corporation (“CAGCO”), HMTF Rawhide, L.P., a Delaware
limited partnership (“Acquisition LP”), and the Company have entered into an agreement of even date
herewith (the “Acquisition Agreement”) pursuant to which the Company has agreed to acquire (the
“Acquisition”) the fresh beef, pork, and lamb businesses owned by CAGCO and certain related cattle
feeding operations (the “Businesses”);



     WHEREAS, the Executive has been employed by CAGCO in connection with the Businesses;



     WHEREAS, the Company and the Executive desire that the Executive’s employment in connection
with the Businesses continue after the consummation of the Acquisition; and



     WHEREAS, the parties hereto deem it desirable for the Company to employ the Executive on the
terms and conditions set forth herein.



     NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:



     1. Employment Period. Subject to Section 3, the Company hereby agrees to employ the
Executive, and the Executive hereby agrees to be employed by the Company, in accordance with the
terms and provisions of this Agreement, for the period commencing as of the date of consummation of
the Acquisition and ending on the fourth anniversary date of the consummation of the Acquisition
(the “Employment Period”); provided, however, that commencing on such anniversary date of the
consummation of the Acquisition, and on each anniversary of such date occurring thereafter, the
Employment Period shall automatically be extended for one additional year unless at least six
months prior to the ensuing expiration date (but no more than 12 months prior to such expiration
date), the Company or the Executive shall have given written notice that it or he, as applicable,
does not wish to extend this Agreement (a “Non-Renewal Notice”). The term “Employment Period,” as
utilized in this Agreement, shall refer to the Employment Period as so automatically extended.



     2. Terms of Employment.



          (a) Position and Duties.




               (i) During the term of the Executive’s employment, the Executive shall serve as the President
and Chief Executive Officer of the Company and, in so doing, shall report to the Board of Directors
of the Company (the “Board”). The Executive shall have supervision and control over, and
responsibility for, such management and operational functions of the Company currently assigned to
such positions, and shall have such other powers and duties (including holding officer positions
with the Company and one or more subsidiaries of the Company) as may from time to time be
prescribed by the Board and agreed to by the Executive,



 









 




so long as such powers and duties are reasonable and customary for the president and chief
executive officer of an enterprise comparable to the Company.




               (i) During the term of the Executive’s employment, and excluding any periods of vacation and
sick leave to which the Executive is entitled, the Executive agrees to devote substantially all of
his business time to the business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive hereunder, to use the Executive’s
reasonable best efforts to perform faithfully, effectively and efficiently such responsibilities.
During the term of Executive’s employment, it shall not be a violation of this Agreement for the
Executive to (1) serve on corporate, civic or charitable boards or committees, (2) deliver lectures
or fulfill speaking engagements and (3) manage personal investments, so long as such activities do
not materially interfere with the performance of the Executive’s responsibilities as an employee of
the Company in accordance with this Agreement.



          b. Compensation.




               (i) Base Salary. During the term of the Executive’s employment, the Executive shall
receive an annual base salary (“Annual Base Salary”), which shall be paid in accordance with the
customary payroll practices of the Company, at least equal to $600,000. Commencing on the first
day (the “First Date”) of the month in the month beginning after the first anniversary date of this
Agreement, and on each subsequent anniversary date of the First Date as long as the Executive
remains an employee of the Company (the First Date and each subsequent anniversary of the First
Date being herein referred to as an “Adjustment Date”), the Annual Base Salary of the Executive
shall be increased by an amount equal to five percent (5%) of the then current Annual Base Salary
or such greater amount as the Board in its discretion may determine appropriate. The result of
such increase to the then current Annual Base Salary shall constitute the Executive’s Annual Base
Salary commencing on the Adjustment Date then at hand and continuing until the next Adjustment
Date. Any increase in Annual Base Salary shall not serve to limit or reduce any other obligation
to the Executive under this Agreement. The term Annual Base Salary as utilized in this Agreement
shall refer to Annual Base Salary as so increased.



               (ii) Bonuses. The Executive shall be eligible to receive an annual performance bonus
(a “Bonus”) in accordance with the provisions of Exhibit A. For each fiscal year of the
Company, the Board shall approve a budget which shall include, among other things, a target for the
items set forth on Exhibit A hereto for that year. A portion of the Executive’s Bonus
shall be based upon the Company’s achievement of such targets in accordance with the guidelines set
forth on Exhibit A hereto. The Bonus shall be payable on the first day of the first
calendar month after the determination of the Company’s EBITDA (as defined in Exhibit A).



               (iii) Incentive, Savings and Retirement Plans. During the term of the Executive’s
employment, the Executive shall be entitled to participate in all incentive, savings and retirement
plans, practices, policies and programs applicable generally to other executives of the Company
(“Investment Plans”).



               (iv) Welfare Benefit Plans. During the term of the Executive’s employment, the
Executive and/or the Executive’s family, as the case may be, shall be eligible



2









 




for participation in and shall receive all benefits under welfare benefit plans, practices,
policies and programs (“Welfare Plans”) provided by the Company (including, without limitation,
medical, prescription, dental, disability, salary continuance, employee life, group life,
accidental death and travel accident insurance plans and programs) to the extent applicable
generally to other executives of the Company.




               (v) Perquisites. During the term of the Executive’s employment, the Executive shall
be entitled to receive (in addition to the benefits described above) such perquisites and fringe
benefits appertaining to his position in accordance with any practice established by the Board.
Executive shall be furnished with all such facilities and services suitable to his position and
adequate for the performance of his duties.



               (vi) Airplane Allowance.



                    (a) For each 12-month period during the term of the Executive’s employment, the Executive
shall be entitled to the personal use of a Company plane for up to twelve trips in the continental
United States. The Company shall pay all costs and expenses associated with the plane for such
trips.



                    (b) To the extent that the Executive’s actual personal use of the airplane is properly imputed
to the Executive as taxable compensation under the Internal Revenue Code of 1986, as amended, the
Company shall pay to the Executive an additional bonus equal to the amount of any federal, state
and local taxes payable in respect of such imputed compensation, along with a gross-up amount such
that the net amount to be paid to the Executive after deduction of any federal, state and local
taxes owed in respect of such additional bonus amount shall be equal to the amount of federal,
state and local taxes owed by the Executive in respect of such imputed compensation (such
additional bonus and gross-up amount the “Tax Reimbursement”). For purposes of determining the
amount of the tax reimbursement and the gross-up payment, the Executive shall be deemed to pay
federal, state and local income taxes at the highest marginal rates applicable to individual in the
calendar year in which the tax reimbursement and the gross-up payment are to be made and the
reduction in federal income taxes resulting from the payment of additional state and local income
taxes shall be taken into account. The payments provided for in this Subsection shall be made upon
the earlier of (i) a certification to the Company by a tax advisor to the Executive that the
Executive is liable for taxes with respect to the use of the airplane, or (ii) the assessment upon
the Executive of any taxes with respect to his personal use of the airplane; provided that no
payment under this Subsection shall be required to be paid prior to the 31st day of March following
the calendar year in which the imputed income giving rise to the payment occurred.



               (vii) Expenses. During the term of the Executive’s employment, the Executive shall be
entitled to receive prompt reimbursement for all reasonable employment expenses incurred by the
Executive in accordance with the policies, practices and procedures of the Company.



               (viii) Vacation and Holidays. During the term of the Executive’s employment, the
Executive shall be entitled to four weeks of paid vacation time each year in addition to those days
designated as paid holidays in accordance with the plans, policies,



3









 




programs and practices of the Company for its executive officers. Unused vacation time shall
carry over to the next year. Any unused vacation time shall be paid in a cash lump sum payment
promptly after the Date of Termination, pursuant to Section 4(a)(i).




               (ix) Stock Options. In addition to any benefits the Executive may receive pursuant to
paragraph 2(b)(iii), as may be determined appropriate by the Board, the Company may, from time to
time, grant Executive stock options (the “Executive Options”) exercisable for shares of capital
stock of the Company and, subject to the terms of this Agreement, such Executive Options shall have
such terms and provisions as may be determined appropriate by the Board. Upon the closing of the
Acquisition, the Company will grant Executive Options in accordance with the terms of Exhibit
B hereto and under a stock option plan to be adopted upon such closing.



     3. Termination of Employment.



          (a) Death or Disability. The Executive’s employment shall terminate automatically
upon the Executive’s death during the Employment Period. If the Disability of the Executive has
occurred during the Employment Period (pursuant to the definition of Disability set forth below),
the Company may give to the Executive written notice in accordance with Section 11(b) of its
intention to terminate the Executive’s employment. In such event, the Executive’s employment with
the Company shall terminate effective on the 30th day after receipt of such notice by the Executive
(the “Disability Effective Date”), provided that, within the 30 days after such receipt, the
Executive shall not have returned to full-time performance of the Executive’s duties. For purposes
of this Agreement, “Disability” shall mean the Executive’s inability to perform his duties and
obligations hereunder for a period of 180 consecutive days due to mental or physical incapacity as
determined by a physician selected by the Company or its insurers and acceptable to the Executive
or the Executive’s legal representative (such agreement as to acceptability not to be withheld
unreasonably).




          (b) Cause. The Company may terminate the Executive’s employment during the Employment
Period for Cause or without Cause. For purposes of this Agreement, “Cause” shall mean (i)
commission by the Executive of an act of fraud upon the Company that has caused demonstrable and
serious economic injury to the Company; (ii) the conviction of the Executive of any felony (or a
plea of nolo contendere thereto) that involves financial misconduct or moral
turpitude or has resulted in any adverse publicity regarding the Executive or the Company or
economic injury to the Company or (iii) a willful and material breach by the Executive of Section 6
or Section 9 that has caused demonstrable and serious economic injury to the Company.
Notwithstanding the foregoing, no act or omission shall constitute “Cause” for purposes of this
Agreement unless the Board provides Executive (x) written notice clearly and fully describing the
particular acts or omissions which the Board reasonably believes in good faith constitutes “Cause;”
(y) an opportunity, within 30 days following his receipt of such notice, to meet in person with the
Board to explain or defend the alleged acts or omissions relied upon by the Board and, to the
extent practicable, to cure such acts or omissions; and (z) a copy of a resolution duly adopted by
a majority of the Board (excluding Executive) at a meeting of the Board called and held for such
purpose finding that in the good faith opinion of the Board, Executive committed the alleged acts
or omissions and that they constitute grounds for Cause hereunder. Further, no act or omission
shall be considered willful unless committed in bad faith




4









 







and without a reasonable belief that the act or omission was in the best interests of the
Company. The Executive shall have the right to contest a determination of Cause by the Company by
requesting arbitration in accordance with the terms of Section 11(j) hereof.



For purposes of this Agreement, “without Cause” shall mean a termination by the Company of the
Executive’s employment during the Employment Period for any reason other than a termination based
upon Cause, death or Disability, including pursuant to a Board Determination (as defined in Section
4(b)).




          (c) Good Reason. The Executive’s employment may be terminated during the Employment
Period by the Executive for Good Reason or without Good Reason; provided, however, that the
Executive agrees not to terminate his employment for Good Reason unless (i) the Executive has given
the Company at least 30 days’ prior written notice of his intent to terminate his employment for
Good Reason, which notice shall specify the facts and circumstances constituting Good Reason, and
(ii) the Company has not remedied such facts and circumstances constituting Good Reason within such
30-day period. For purposes of this Agreement, “Good Reason” shall mean:




               (i) the assignment to the Executive of any duties inconsistent in any respect with the
Executive’s position (including status, offices, titles and reporting requirements), authority,
duties or responsibilities as contemplated by Section 2(a) or any other action by the Company which
results in a material diminution in such position, authority, duties or responsibilities, excluding
for this purpose an isolated, insubstantial and inadvertent action not taken in bad faith and which
is remedied by the Company promptly after receipt of notice thereof given by the Executive (without
limiting the foregoing, the Company and the Executive agree that the delegation of the authority,
duties or responsibilities of the Executive to another person or persons, including any committee,
shall be deemed to be an action by the Company which results in a material diminution in the
Executive’s position, authority, duties, or responsibilities as contemplated by Section 2(a)),
provided, however, that Good Reason may not be asserted by the Executive under this clause (i) of
Section 3(c) after a Non-Renewal Notice has been given by either the Company or the Executive;



               (ii) any termination or material reduction of a material benefit under any Investment Plan or
Welfare Plan in which the Executive participates unless (1) there is substituted a comparable
benefit that is economically substantially equivalent to the terminated or reduced benefit prior to
such termination or reduction or (2) benefits under such Investment Plan or Welfare Plan are
terminated or reduced with respect to all then existing senior executives of the Company previously
granted benefits thereunder;



               (iii) any failure by the Company to comply with any of the provisions of Section 2(b), other
than an isolated, insubstantial and inadvertent failure not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the Executive;



               (iv) any failure by the Company to comply with and satisfy Section 8(c), provided that such
successor has received at least ten days prior written notice from the Company or the Executive of
the requirements of Section 8(c);



5









 





               (v) the relocation or transfer of the Executive’s principal office to a location more than 20
miles from the Company’s current executive offices as such are maintained on the date hereof in the
city of Greeley, Colorado; or



               (iv) without limiting the generality of the foregoing, any material breach by the Company or
any of its subsidiaries or other affiliates (as defined below) of (1) this Agreement or (2) any
other agreement between the Executive and the Company or any such subsidiary or other affiliate,
which material breach is not remedied by the Company promptly after receipt of notice thereof given
by the Executive.



     As used in this Agreement, “affiliate” means, with respect to a person, any other person
controlling, controlled by or under common control with the first person; the term “control,” and
correlative terms, means the power, whether by contract, equity ownership or otherwise, to direct
the policies or management of a person; and “person” means an individual, partnership, corporation,
limited liability company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.



          (d) Notice of Termination. Any termination by the Company for Cause or without Cause,
or by the Executive for Good Reason or without Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 11(b). For purposes of this
Agreement, a “Notice of Termination” means a written notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for termination of the
Executive’s employment under the provision so indicated and (iii) if the Date of Termination (as
defined below) is other than the date of receipt of such notice, specifies the termination date
(which date shall not be more than 15 days after the giving of such notice). The failure by the
Executive or the Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of the Executive or the
Company hereunder or preclude the Executive or the Company from asserting such fact or circumstance
in enforcing the Executive’s or the Company’s rights hereunder.




          (e) Date of Termination. “Date of Termination” means (i) if the Executive’s
employment is terminated by the Company for Cause, or by the Executive for Good Reason or without
Good Reason, the date of receipt of the Notice of Termination or any later date specified therein
pursuant to Section 3(d), as the case may be, (ii) if the Executive’s employment is terminated by
the Company other than for Cause, the date on which the Company notifies the Executive of such
termination or any later date specified therein pursuant to Section 3(d), as the case may be, (iii)
if the Executive’s employment is terminated by reason of death or Disability, the date of death of
the Executive or the Disability Effective Date, as the case may be, and (iv) if the Executive’s
employment terminates due to the giving of a Non-Renewal Notice, the last day of the Employment
Period.




     4. Obligations of the Company upon Termination.



          (a) Good Reason; Other Than for Cause, Death or Disability. If, during the Employment
Period, the Company shall terminate the Executive’s employment other than for




6









 







either Cause or Disability or the Executive shall terminate his employment for Good Reason,
and the termination of the Executive’s employment in any case is not due to his death or
Disability:




               (i) The Company shall pay to the Executive in a lump sum in cash within ten days after the
Date of Termination the aggregate of the following amounts: (1) the sum of the Executive’s Annual
Base Salary through the Date of Termination to the extent not theretofore paid and any compensation
previously deferred by the Executive (together with any accrued interest or earnings thereon) and
any accrued vacation pay (“Accrued Obligations”); (2) an amount equal to two times the Executive’s
then current Annual Base Salary; (3) an amount equal to the greater of either fifty percent (50%)
of (a) the maximum annual Bonus (excluding any “Stretch” amounts as described on Exhibit A)
that the Executive could have earned over the remainder of the Employment Period (assuming that a
Non-Renewal Notice would be timely given by the Company prior to the next ensuing expiration date
of the Employment Period) or (b) the highest Bonus paid hereunder to the Executive prior to the
Date of Termination multiplied by the number of complete, and prorated for any partial, fiscal
years remaining in the Employment Period (assuming that a Non-Renewal Notice would be timely given
by the Company prior to the next ensuing expiration date of the Employment Period); and (4) any
amount arising from Executive’s participation in, or benefits under, any Investment Plans (“Accrued
Investments”), which amounts shall be payable in accordance with the terms and conditions of such
Investment Plans. Notwithstanding anything to the contrary contained herein, for purposes of
clauses 3(a) and (b) of the preceding sentence, if the Date of Termination occurs (x) during the
first year of the Employment Period, the Employment Period shall be deemed to end two years from
the end of the year in which the Date of Termination occurs, (y) during the second year of the
Employment Period, the Employment Period shall be deemed to end one year from the end of the year
in which the Date of Termination occurs, and (z) during the third or any subsequent year, the
Employment Period shall be deemed to end at the end of the year in which the Date of Termination
occurs. In addition, the Company shall pay to the Executive an amount equal to any Tax
Reimbursement due pursuant to Section 2(vi)(b) as provided therein.



               (ii) Except as otherwise provided in Section 4(d), the Executive (and members of his family)
shall be entitled to continue their participation in the Company’s Welfare Plans for a period of 12
months from the Date of Termination. This period shall be credited against any period for which
the Executive and/or members of his family are entitled to continuation coverage under Section
4980B of the Internal Revenue Code of 1986, as amended, and Sections 601-609 of the Employee
Retirement Income Security Act of 1974, as amended.



               (iii) Notwithstanding the terms or conditions of any Executive Option, stock appreciation
right or similar agreements between the Company and the Executive, the Executive shall vest, as of
the Date of Termination, in all rights under such agreements (i.e., Executive Options that would
otherwise vest after the Date of Termination) and thereafter shall be permitted to exercise, in
accordance with the terms of the Executive Options, any and all such rights until the earlier of
(w) the date the Option would otherwise expire in accordance with its terms, (x) if the Date of
Termination is prior to a Qualifying Public Offering (as defined in that certain Stock Option
Agreement of even date herewith between the Company and Executive), the 270th day after a
Qualifying Public Offering, (y) if the Date of Termination is after a Qualifying Public Offering,
the 90th day after the Date of Termination, or (z) the 90th day after the completion of a merger,
combination, share exchange or similar transaction involving the



7









 




Company pursuant to which the securities for which this Option is then exercisable are listed
on a national securities exchange or the Nasdaq National Market System or any successor thereto;
provided, however, the provisions of this clause (iii) of this Section 4(a) shall not apply to a
termination of the Executive’s employment during the Employment Period that is made by the Company
pursuant to a Board Determination.




          (b) Board Determination. If the Executive’s employment is terminated by the Company
pursuant to a Board Determination during the Employment Period, the Executive shall be entitled to
receive the benefits specified in Sections 4(a)(i) and 4(a)(ii) of this Agreement. Further,
notwithstanding the terms or conditions of any Executive Option, stock appreciation rights or
similar agreement between the Executive and the Company, all unvested Executive Options and
unvested stock appreciation rights or similar agreements shall be forfeited and the Executive shall
not vest, as of the Date of Termination or otherwise, in any rights under such unvested Executive
Options, stock appreciation rights or similar agreements that are unvested immediately prior to the
Date of Termination and thereafter shall be permitted to exercise, in accordance with the terms of
the Executive Options, only those rights that were otherwise vested immediately prior to the Date
of Termination until the earlier of (w) the date the Option would otherwise expire in accordance
with its terms, (x) if the Date of Termination is prior to a Qualifying Public Offering, the 270th
day after a Qualifying Public Offering, (y) if the Date of Termination is after a Qualifying Public
Offering, the 90th day after the Date of Termination, or (z) the 90th day after the completion of a
merger, combination, share exchange or similar transaction involving the Company pursuant to which
the securities for which this Option is then exercisable are listed on a national securities
exchange or the Nasdaq National Market System or any successor thereto. For purposes of this
Agreement, a “Board Determination” means a unanimous determination by the Board (excluding the
Executive) (which is evidenced by one or more written resolutions of the Board to such effect), (i)
to terminate the Executive’s employment during the Employment Period based upon the Board’s
dissatisfaction with the manner in which the Executive has performed his obligations and duties
under Section 2(a) and (ii) that Cause does not exist as a basis for such termination.
Notwithstanding the foregoing, no act or omission shall constitute or be the basis for a
termination based upon a Board Determination unless the Board provides the Executive (a) written
notice of its intention to terminate Executive’s employment pursuant to a Board Determination, and
(b) an opportunity, within 30 days following the Executive’s receipt of such notice, to meet in
person with the Board to explain or defend his performance to the Board.




          (c) Death or Disability. If the Executive’s employment is terminated by reason of the
Executive’s death or Disability during the Employment Period, the Company shall pay to his legal
representatives (i) in a lump sum in cash within ten days after the Date of Termination the
aggregate of the following amounts: (A) an amount equal to the Executive’s then current Annual Base
Salary or Six Hundred Thousand Dollars ($600,000.00), whichever is greater; and (B) the Accrued
Obligations; and (ii) the Accrued Investments which shall be payable in accordance with the terms
and conditions of the Investment Plans. In addition, the members of the Executive’s family shall
be entitled to continue their participation in the Company’s Welfare Plans for a period of 12
months after the Date of Termination. Further, notwithstanding the terms or conditions of any
Executive Option, stock appreciation right or similar agreements between the Company and the
Executive, the Executive shall vest, as of the Date of Termination, in all rights under such
agreements (i.e., Executive Options that would




8









 







otherwise vest after the Date of Termination) and thereafter his legal representative shall be
permitted to exercise, in accordance with the terms of the Executive Options, any and all such
rights until the earlier of (w) the date the Option would otherwise expire in accordance with its
terms, (x) if the Date of Termination is prior to a Qualifying Public Offering, the 270th day after
a Qualifying Public Offering, (y) if the Date of Termination is after a Qualifying Public Offering,
the 90th day after the Date of Termination, or (z) the 90th day after the completion of a merger,
combination, share exchange or similar transaction involving the Company pursuant to which the
securities for which this Option is then exercisable are listed on a national securities exchange
or the Nasdaq National Market System or any successor thereto. In addition, the Company shall pay
to the Executive an amount equal to any Tax Reimbursement due pursuant to Section 2(vi)(b) as
provided therein. The Company shall have no further payment obligations to the Executive or his
legal representatives under this Agreement.




          (d) Cause; Other than for Good Reason. If the Executive’s employment shall be
terminated by the Company for Cause or by the Executive without Good Reason during the Employment
Period, the Company shall have no further payment obligations to the Executive other than for
payment of Accrued Obligations, Accrued Investments (which shall be payable in accordance with the
terms and conditions of the Investment Plans), and the continuance of benefits under the Welfare
Plans to the Date of Termination (or later to the extent required by law). Further,
notwithstanding the terms or conditions of any Executive Option, stock appreciation rights or
similar agreement between the Executive and the Company, all unvested Executive Options and
unvested stock appreciation rights or similar agreements shall be forfeited and the Executive shall
not vest, as of the Date of Termination or otherwise, in any rights under such Executive Options,
stock appreciation rights or similar agreements that are unvested immediately prior to the Date of
Termination and thereafter shall be permitted to exercise, in accordance with the terms of the
Executive Options, only those rights that were otherwise vested immediately prior to the Date of
Termination until the earlier of (w) the date the Option would otherwise expire in accordance with
its terms, (x) if the Date of Termination is prior to a Qualifying Public Offering, the 270th day
after a Qualifying Public Offering, (y) if the Date of Termination is after a Qualifying Public
Offering, the 90th day after the Date of Termination, or (z) the 90th day after the completion of a
merger, combination, share exchange or similar transaction involving the Company pursuant to which
the securities for which this Option is then exercisable are listed on a national securities
exchange or the Nasdaq National Market System or any successor thereto. In addition, the Company
shall pay to the Executive an amount equal to any Tax Reimbursement due pursuant to Section
2(vi)(b) as provided therein.




          (e) Put Option.




               (i) If, during the Employment Period, the Executive’s employment is terminated by the
Executive or the Company for any reason, including due to death or Disability, then the Executive
shall have the option, in his sole discretion, to require the Company to purchase all and not less
than all shares of Company common stock (“Common Stock”) that the Executive purchased from the
Company pursuant to any subscription agreement to be entered into between the Executive and the
Company prior to the date of the Acquisition (the “Subscription Agreement”) (the “Option Shares”),
at the Fair Market Value (as hereinafter defined) of the Option Shares. Notwithstanding anything
to the contrary contained herein, the Company’s obligation to purchase the Option Shares is
subject to the Company having funds



9









 




legally available therefore as well as compliance with any restrictions imposed by agreements
evidencing the Company’s indebtedness. If any restrictions imposed by agreements evidencing the
Company’s indebtedness prevent or restrict the purchase of the Option Shares, the Company shall use
all commercially reasonable efforts to obtain a wavier of such restrictions.




               (ii) In the event that the Executive elects to require such a purchase, then (a) the Executive
shall give written notice to the Company of such election (the “Option Notice”) within ten (10)
days of the Date of Termination; (b) such purchase shall be closed on the tenth (10th) business day
following the determination of the Fair Market Value of the Option Shares; (c) at such closing, the
Executive shall deliver to the Company the certificate(s) representing the Option Shares,
accompanied by stock powers duly executed by the Executive in blank; and (d) the Option Shares
shall be delivered to the Company free and clear of all liens, security interests, claims, rights
of another, and encumbrances of any kind or character (and Executive shall certify to such effect
at such closing).



               (iii) “Fair Market Value” as used herein means the fair market value as agreed upon by the
Company and the Executive. In the event that, within ten days after the date of the Option Notice,
the Company and the Executive cannot agree upon the fair market value of the Option Shares, then,
within five days after such ten-day period has expired, the parties shall select an independent
appraiser who will determine the fair market value of the Option Shares as of the Date of
Termination. Such independent appraiser will determine the fair market value of the Option Shares
within 30 days following its appointment and such determination of the fair market value of the
Option Shares will be final and binding. If, within the five days provided for the parties to
select an independent appraiser, the parties are unable to agree upon an independent appraiser, the
Company, on the one hand, and the Executive, on the other hand, shall, within five days after the
first five-day selection period expires, each select an independent appraiser and such independent
appraisers together will select a third independent appraiser that will determine the fair market
value of the Option Shares, whose determination of the fair market value of the Option Shares will
be final and binding. Such third appraiser shall have 30 days following his or her selection to
determine the fair market value of the Option Shares. All fees and expenses for any appraisers
selected hereunder shall be borne equally (50:50) by the Company and the Executive.
Notwithstanding the foregoing, if on the Date of Termination the Common Stock is then listed or
admitted to trading on a national securities exchange or is traded in the over-the-counter market
as reported by the Nasdaq National Market System or any successor thereto, the Fair Market Value of
each share of the Option Shares shall be equal to the average of the closing price of the Common
Stock for the 20 consecutive trading days immediately preceding the Date of Termination. The
closing price for any day shall be the last reported sale price regular way or, in case no such
reported sale takes place on such day, the average of the closing bid and asked prices regular way
for such day, in each case (x) on the principal national securities exchange on which the Common
Stock is listed or to which such shares are admitted to trading or (y) if the Common Stock is not
listed or admitted to trading on a national securities exchange, in the over-the-counter market as
reported by the Nasdaq National Market System or any successor thereto.



          (f) If pursuant to the terms and provisions of the Company’s Welfare Plans the Executive (or
members of his family) are not eligible to participate in the Company’s Welfare Plans because the
Executive is no longer an employee of the Company, then the Company may fulfill its obligations
under Section 4(a)(ii), Section 4(b) or Section 4(c), as




10









 







applicable, by either providing to the Executive (or his legal representatives), or
reimbursing the Executive (or his legal representatives) for the costs of, benefits substantially
similar to the benefits provided by the Company to its senior management under its Welfare Plans as
such may from time to time exist after the Date of Termination.




     5. Full Settlement, Mitigation. In no event shall the Executive be obligated to seek
other employment or take any other action by way of mitigation of the amounts payable to the
Executive under any of the provisions of this Agreement and such amounts shall not be reduced
whether or not the Executive obtains other employment. Neither the Executive nor the Company shall
be liable to the other party for any damages in addition to the amounts payable under Section 4
arising out of the termination of the Executive’s employment prior to the end of the Employment
Period; provided, however, that the Company shall be entitled to seek damages for any breach of
Sections 6, 7 or 9 or criminal misconduct.



     6. Confidential Information.



          (a) The Executive acknowledges that the Company and their affiliates have trade, business and
financial secrets and other confidential and proprietary information (collectively, the
“Confidential Information”). As defined herein, Confidential Information shall not include
information (i) that becomes generally available to the public other than as a result of a
disclosure by Executive, (ii) that is rightfully available to Executive 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 or otherwise prohibited from transmitting the information to Executive
by a contractual, legal, or fiduciary obligation), or (iii) that is required to be disclosed by the
Executive pursuant to a subpoena or court order, or pursuant to a requirement of a governmental
agency or law of the United States of America or a state thereof or any governmental or political
subdivision thereof; provided, however, that the Executive shall take all
reasonable steps to prohibit disclosure pursuant to subsection (iii) above.




          (b) The Executive agrees (i) to hold such Confidential Information in confidence and (ii) not
to release such information to any person (other than Company employees and other persons to whom
the Company has authorized the Executive to disclose such information and then only to the extent
that such Company employees and other persons authorized by the Company have a need for such
knowledge).




          (c) The Executive further agrees not to use any Confidential Information for the benefit of
any person or entity other than the Company.




          (d) As used in this Section 6, “Company” shall include the Company and any of its direct or
indirect subsidiaries or affiliates.




     7. Surrender of Materials Upon Termination. Upon any termination of the Executive’s
employment, the Executive shall immediately return to the Company all copies, in whatever form, of
any and all Confidential Information and other properties of the Company and their affiliates which
are in the Executive’s possession, custody or control.



11









 





     8. Successors.



          (a) This Agreement is personal to the Executive and without the prior written consent of the
Company shall not be assignable by the Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive’s
legal representatives.




          (b) This Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns. The Executive agrees that, on or after the closing of the Acquisition, the
Company may assign this Agreement to any directly or indirectly owned subsidiary of the Company, in
which event “Company” as used in this Agreement shall thereafter also mean such subsidiary (except
where reference is made to stock options or other benefit plans that are not maintained by such
subsidiary), and in connection with such assignment, such subsidiary shall expressly assume this
Agreement.




          (c) The Company will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of the
Company to assume expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession had taken place. As
used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor
to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.




     9. Non-Competition.



          (a) The term of Non-Competition (herein so called) shall be for a term beginning on the date
hereof and continuing until the second anniversary of the Date of Termination.




          (b) During the term of Non-Competition, the Executive will not (other than for the benefit of
the Company pursuant to this Agreement), directly or indirectly, individually or as an officer,
director, employee, shareholder, consultant, contractor, partner, joint venturer, agent, equity
owner or in any capacity whatsoever, engage in any fresh meat or meat processing business (a
“Competing Business”), located in the United States or Australia (the “Geographic Area”), (ii)
hire, attempt to hire, or contact or solicit with respect to hiring any employee of the Company, or
(iii) divert or take away any customers of the Company in the Geographic Area. Notwithstanding the
foregoing, the Company agrees that after the Date of Termination the Executive may be employed by,
or perform services for, a person (as such term is defined in Subsection 3(c) above) whose business
operations include a Competing Business provided that revenues from such Competing Business
comprise less than fifty percent (50%) of the total revenues of such person at the time the
Executive is initially employed or begins to perform services for such person, so long as Executive
does not personally render advice to, perform any services for, or otherwise participate in, such
Competing Business operations of such person. Notwithstanding the foregoing, the Company agrees
that the Executive may own less than five percent of the outstanding voting securities of any
publicly traded company that is a Competing Business so long as the Executive does not otherwise
participate in such competing business in any way prohibited by the preceding sentence.




12









 








          (c) During the term of Non-Competition, the Executive will not use the Executive’s access to,
knowledge of, or application of Confidential Information to perform any duty for any Competing
Business; it being understood and agreed to that this Section 9(c) shall be in addition to and not
be construed as a limitation upon the covenants in Section 9(b) hereof.




          (d) The Executive acknowledges that the geographic boundaries, scope of prohibited activities,
and time duration of the preceding paragraphs are reasonable in nature and are no broader than are
necessary to maintain the confidentiality and the goodwill of the Company’s proprietary
information, plans and services and to protect the other legitimate business interests of the
Company.




          (e) As used in this Section 9, “Company” shall include the Company and any of its direct or
indirect subsidiaries or affiliates.




     10. Effect of Agreement on Other Benefits. The existence of this Agreement shall not
prohibit or restrict the Executive’s entitlement to full participation in the executive
compensation, employee benefit and other plans or programs in which executives of the Company are
eligible to participate.



     11. Miscellaneous.



          (a) This Agreement shall be governed by and construed in accordance with the laws of the State
of Delaware without reference to principles of conflict of laws. The captions of this Agreement
are not part of the provisions hereof and shall have no force or effect. Whenever the terms
“hereof”, “hereby”, “herein”, or words of similar import are used in this Agreement they shall be
construed as referring to this Agreement in its entirety rather than to a particular section or
provision, unless the context specifically indicates to the contrary. Any reference to a
particular “Section” or “paragraph” shall be construed as referring to the indicated section or
paragraph of this Agreement unless the context indicates to the contrary. The use of the term
“including” herein shall be construed as meaning “including without limitation.” This Agreement
may not be amended or modified otherwise than by a written agreement executed by the parties hereto
or their respective successors and legal representatives.




          (b) All notices and other communications hereunder shall be in writing and shall be given by
hand delivery to the other party or by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:




	 	 	 	 	 
	 

	 	If to the Executive:
	 	John Simons

7931 Eagle Ranch Road

Fort Collins, Colorado 80528
	 
	 	 	 	 
	 

	 	With a copy to:
	 	Terence P. Boyle, Esq.

Boyle Partnership, P.C.

1775 Sherman Street, Suite 1375

Denver, Colorado 80203






13









 






	 	 	 	 	 
	 

	 	If to the Company:
	 	Swift & Company

c/o HMTF Rawhide, L.P.

200 Crescent Court, Suite 1600

Dallas, Texas 75201

Attention: Edward Herring
	 
	 	 	 	 
	 

	 	With a copy to:
	 	Vinson & Elkins L.L.P.

3700 Trammell Crow Center

2001 Ross Avenue

Dallas, Texas 75201

Attention: Michael D. Wortley





or to such other address as either party shall have furnished to the other in writing in accordance
herewith. Notice and communications shall be effective when actually received by the addressee.




          (c) If any provision of this Agreement is held to be illegal, invalid or unenforceable under
present or future laws effective during the term of this Agreement, such provision shall be fully
severable; this Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a portion of this Agreement; and the remaining
provisions of this Agreement shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance from this Agreement. Furthermore,
in lieu of such illegal, invalid or unenforceable provision there shall be added automatically as
part of this Agreement a provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.




          (d) The Company shall use all commercially reasonably efforts to obtain and maintain a
director’s and officer’s liability insurance policy during the term of the Executive’s employment
covering the Executive on commercially reasonable terms, and the amount of coverage shall be
reasonable in relation to the Executive’s position and responsibilities hereunder; provided,
however, that such coverage may be reduced or eliminated to the extent that the Company reduces or
eliminates coverage for its directors and executives generally.




          (e) The Company may withhold from any amounts payable under this Agreement such Federal, state
or local taxes as shall be required to be withheld pursuant to any applicable law or regulation.




          (f) The Executive’s or the Company’s failure to insist upon strict compliance with any
provision of this Agreement, or the failure to assert any right the Executive or the Company may
have hereunder, shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement.




          (g) The Executive acknowledges that money damages would be both incalculable and an
insufficient remedy for a breach of Section 6 or 9 by the Executive and that any such breach would

cause the Company irreparable harm. Accordingly, the Company, in addition to any other remedies at
law or in equity it may have, shall be entitled, without the




14









 







requirement of posting of bond or other security, to equitable relief, including injunctive
relief and specific performance, in connection with a breach of Section 6 or 9 by the Executive.




          (h) The provisions of this Agreement constitute the complete understanding and agreement
between the parties with respect to the subject matter hereof and the Executive acknowledges that
the Company has no obligations with respect to any retention bonuses, stay bonuses or severance
payments that the Executive may be entitled to as a result of the Acquisition or the consummation
of the transactions contemplated by the Acquisition Agreement.




          (i) This Agreement may be executed in two or more counterparts.




          (j) In the event any dispute or controversy arises under this Agreement and is not resolved by
mutual written agreement between the Executive and the Company within 30 days after notice of the
dispute is first given, then, upon the written request of the Executive or the Company, such
dispute or controversy shall be submitted to arbitration to be conducted in accordance with the
rules of the American Arbitration Association. Judgment may be entered thereon and the results of
the arbitration will be binding and conclusive on the parties hereto. Any arbitrator’s award or
finding or any judgment or verdict thereon will be final and unappealable. All parties agree that
venue for arbitration will be in Denver, Colorado, and that any arbitration commenced in any other
venue will be transferred to Denver, Colorado, upon the written request of any party to this
Agreement. All arbitrations will have three individuals acting as arbitrators: one arbitrator
will be selected by the Executive, one arbitrator will be selected by the Company, and the two
arbitrators so selected will select a third arbitrator. Any arbitrator selected by a party will
not be affiliated, associated or related to the party selecting that arbitrator in any matter
whatsoever. The decision of the majority of the arbitrators will be binding on all parties. The
Company shall be responsible for paying its own and the Executive’s attorneys fees, costs and other
expenses pertaining to any such arbitration and enforcement regardless of whether an arbitrator’s
award or finding or any judgment or verdict thereon is entered against the Executive. The Company
shall promptly (and in no event after ten days following its receipt from the Executive of each
written request therefor) reimburse the Executive for his reasonable attorneys fees, costs and
other expenses pertaining to any such arbitration and the enforcement thereof.




          (k) Sections 4, 5, 6, 7, 8, 9 and 11 of this Agreement shall survive the termination of the
Executive’s employment.




          (l) This Agreement shall automatically terminate on the termination of the Acquisition
Agreement prior to the consummation of the Acquisition and may not be amended prior to the
consummation of the Acquisition without the consent of Acquisition LP, which shall be deemed to be
a third party beneficiary of this Agreement prior to the consummation of the Acquisition. Prior to
the consummation of the Acquisition, Acquisition LP, on behalf of the Company, shall be entitled to
terminate this Agreement without obligation on the part of the Company in the event of the
Executive’s death or if the Executive becomes unable to perform his duties and obligations
hereunder due to physical or mental incapacity as determined by a physician selected by Acquisition
LP, on behalf of the Company, or by the Company’s insurers




15









 







and such physician reasonably believes such incapacity will continue for a period of 180 days
following the commencement thereof.




          (m) The Executive waives any and all rights to any retention bonus, stay bonus, or severance
payments that he is otherwise legally entitled to receive from CAGCO or the Company or any of their
respective affiliates.




[Remainder of this page intentionally left blank]




16









 








     IN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and, pursuant to the
authorization from the Board, the Company has caused this Agreement to be executed in its name on
its behalf, all as of the day and year first above written.




EXECUTIVE



	 	 	 	 	 
	 	 	 
	 	                                              /s/ John Simons
 	 
	 	John Simons 	 
	 	 	 
	 





S&C HOLDCO, INC. (to be renamed SWIFT &

COMPANY)



	 	 	 	 	 
	 	 	 
	 	                                              /s/ Dwight J. Goslee
 	 
	 	By:  Dwight J. Goslee 	 
	 	Title:  	President 	 



 









 






	 	 	 	 	 



EXHIBIT A




Bonus Terms





     The Bonus that the Executive is eligible to receive each year under Section 2(b)(ii) of this
Agreement shall be comprised 80% of an “EBITDA Target Bonus” and 20% of an “MBO Bonus.” The total
annual bonus potential of Executive shall be no less than 100% of the Executive’s Annual Base
Salary.



     1. EBITDA Target Bonus



     For the first fiscal year of the Company during the Employment Period the Executive’s EBITDA
Target Bonus shall be calculated as follows:



	 	 	 	 	 	 	 	 	 
	 	 	EBITDA Target	 	EBITDA Target
	EBITDA Target (a) (b)	 	Bonus % (b)	 	Bonus Amount
	$275,000,000
	 	 	100	%	 	$	480,000	 
	 
	$245,000,000
	 	 	90	%	 	$	432,000	 
	 
	$235,000,000
	 	 	80	%	 	$	384,000	 
	 
	$220,000,000
	 	 	70	%	 	$	336,000	 
	 
	Less than $220 Million
	 	 	0	 	 	 	0	 








 






     (a) For each fiscal year of the Company after the expiration of the first fiscal year of the
Company during the Employment Period, the Board of Directors of the Company shall make an annual
determination of the Company’s EBITDA Target. Such determination shall be made in good faith with a
reasonable basis and shall be consistent with the methodology used to establish the EBITDA Target
in the Company’s annual budget. In no event shall the EBITDA Target exceed the prior year’s EBITDA
Target by more than 10%.



     “EBITDA” shall be defined as the Company’s earnings before interest, taxes, depreciation, and
amortization. EBITDA amounts shall be reduced by the applicable performance bonus amounts payable
to the Executive and other members of the Company’s management team.



     The EBITDA Target shall be subject to proration if the first fiscal year of the Company is
less than 12 months from the commencement of the Employment Period or for any subsequent partial
fiscal years. In addition, the EBITDA Target shall be appropriately adjusted by the Board of
Directors of the Company to reflect any divestitures of any divisions or material assets during any
fiscal year.



A-1









 





     For each fiscal year (a “Subject Year”) of the Company after the expiration of the first
fiscal year of the Company during the Employment Period, the percentage of the EBITDA Target Bonus
payable to the Executive (“EBITDA Target Bonus Percentage”) shall be equal to the percentage of the
EBIDTA Target achieved by the Company during such Subject Year; provided, however, that no EBITDA
Target Bonus shall be payable if the actual EBIDTA for such Subject Year is less than 70% of the
EBITDA Target. The determination of whether the Company achieved the EBITDA Target shall be made in
accordance with generally accepted accounting principles consistently applied by the independent
certified public accountants of the Company, whose determination shall be final and binding.



     (b) The Executive and the Board of Directors of the Company shall negotiate in good faith
appropriate “stretch” Bonus amounts payable upon achievement of EBITDA amounts in excess of 100% of
the EBITDA Target.



     2. MBO Bonus



     The Executive’s maximum MBO Bonus shall be based upon achievement of objective criteria
established in good faith by the Board of Directors.



A-2









 





EXHIBIT B




Stock Options




     Upon the closing of the Acquisition, Executive will be granted options to purchase Six Million
Four Hundred Thousand (6,400,000) shares of common stock of the Company, pursuant to the
Non-Qualified Stock Option Agreement (the “Stock Option Agreement”) which is attached hereto as
portion of Exhibit B to the Agreement. In addition, Executive will receive one “home-run”
option for each share of common stock of the Company purchased by the Executive pursuant to the
Subscription Agreement upon the Closing of the Acquisition. With the exception of the exercise
price of each “home-run” option, which shall be $2 per share, the agreement providing for the
“home-run” options shall reflect the same terms and conditions as the Stock Option Agreement.




B-1









 






THE SHARES ISSUABLE PURSUANT TO THIS AGREEMENT ARE SUBJECT TO AN OPTION TO REPURCHASE AND A
RIGHT OF FIRST REFUSAL PROVIDED UNDER THE PROVISIONS OF THE COMPANY’S 2002 STOCK OPTION PLAN AND
THIS AGREEMENT IS ENTERED INTO PURSUANT THERETO. COPIES OF THE PLAN ARE AVAILABLE UPON WRITTEN
REQUEST TO THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.



SWIFT & COMPANY

2002 STOCK OPTION PLAN




NON-QUALIFIED STOCK OPTION AGREEMENT




_______________, ____




	 	 	 
	John Simons
	 	 
	c/o Swift &Company
	 	 
	 
	 	 
	 


	 	 
	 


	 	 
	 


	 	 
	 
	 	 
	Re: Grant of Stock Option
	 	 
	 
	 	 
	Dear John:
	 	 






     The Board of Directors of Swift & Company (the “Company”) has adopted the Company’s
2002 Stock Option Plan (the “Plan”) for certain individuals, directors and key employees of
the Company and its Related Entities. A copy of the Plan is being furnished to you concurrently
with the execution of this Option Agreement and shall be deemed a part of this Option Agreement as
if fully set forth herein.



     The terms and provisions of that certain employment agreement between you and the Company,
dated as of May ___, 2002 (together with any successor or replacement agreement, the
“Employment Agreement”), that relate to or affect the Option are incorporated herein by
reference. Terms not defined herein that are defined in the Employment Agreement shall have the
respective meanings set forth in the Employment Agreement. Terms not defined herein that are not
defined in the Employment Agreement shall have the respective meanings set forth in the Plan. In
the event of any conflict or inconsistency between the terms and conditions of this Option
Agreement and the terms and conditions of the Employment Agreement, the terms and conditions of the
Employment Agreement shall be controlling.



 









 






	 	1.	 	The Grant.





      Subject to the conditions set forth below, the Company hereby grants to you, effective as of
                                        ,                      (“Grant Date”), as a matter of separate inducement and not in lieu of
any salary or other compensation for your services, the right and option to purchase (the
“Option”), in accordance with the terms and conditions set forth herein and in the Plan, an
aggregate of Six Million Four Hundred Thousand (6,400,000) shares of Common Stock of the Company
(the “Option Shares”), at the Exercise Price (as hereinafter defined). As used herein, the
term “Exercise Price” shall mean a price equal to $1.00 per share, subject to the adjustments and
limitations set forth herein and in the Plan. The Option granted hereunder is intended to
constitute a Non-Qualified Option within the meaning of the Plan; however, you should consult with
your tax advisor concerning the proper reporting of any federal or state tax liability that may
arise as a result of the grant or exercise of the Option.




	 	2.	 	Exercise and Vesting.





            (a) For purposes of this Option Agreement, the Option Shares shall be deemed “Nonvested
Shares” unless and until they have become “Vested Shares.” Except as otherwise provided in Section
3, the Option Shares shall become “Vested Shares” with respect to one-third
(1/3) of the Option Shares, on the first anniversary of the Grant Date, and
one-third (1/3) of the Option Shares shall vest on each of the two subsequent
anniversaries of the Grant Date thereafter, so that all of the Option Shares shall be vested three
years after the Grant Date, provided that vesting shall cease upon your ceasing to be an employee
of the Company or a Related Entity as expressly provided in Section 3 hereof.



            (b) Notwithstanding anything to the contrary contained in this Option Agreement, in the event
that a Sale of the Company occurs while you are an employee of the Company or any Related Entity,
then all of the Option Shares shall vest and become Vested Shares immediately prior to the
consummation of a Sale of the Company.



            (c) Subject to the relevant provisions and limitations contained herein and in the Plan, you
may exercise the Option to purchase all or a portion of the applicable number of Vested Shares at
any time prior to the termination of the Option pursuant to this Option Agreement. In no event
shall you be entitled to exercise the Option for any Nonvested Shares or for a fraction of a Vested
Share or for less than 100 shares (unless the number purchased is the total balance for which the
Option is then exercisable).



            (d) The unexercised portion of the Option, if any, will automatically, and without notice,
terminate and become null and void upon the expiration of 10 years from the Grant Date and, except
as expressly provided herein, no portion of the Option may be exercised after such date.



            (e) Any exercise by you of the Option shall be in writing addressed to the Secretary of the
Company at its principal place of business (a copy of the form of exercise to be used will be
available upon written request to the Secretary), specifying the Option being exercised and the
number of shares of Common Stock to be purchased, and specifying a business day not more than 10
days from the date such notice is given for the payment of the purchase



2









 





price against delivery of the shares of Common Stock being purchased. Subject to the terms of
the Plan and this Option Agreement, the Company shall cause certificates for the shares so
purchased to be delivered at the principal business office of the Company, against payment of the
full purchase price, on the date specified in the notice of exercise. The Exercise Price shall be
paid by you in cash by delivery of a certified or bank check payable to the order of the Company in
the full amount of the Exercise Price of the shares so purchased, or in such other manner as
described in the Plan and approved by the Committee. Notwithstanding the foregoing, if permitted
by law, payment may be made by: (a) cancellation of any indebtedness of the Company to you; (b) to
exercise a portion of an Option by delivering that number of shares of Common Stock already owned
by you having an aggregate Fair Market Value which shall equal the partial Option exercise price
and to deliver the shares thus acquired by you in payment of shares to be received pursuant to the
exercise of additional portions of such Option, the effect of which shall be that you can in
sequence utilize such newly acquired shares in payment of the exercise price of the entire Option,
together with such cash as shall be paid in respect of fractional shares; (c) by waiver of
compensation due or earned and accrued, including a bonus (provided, however, that any bonus shall
be deemed to be accrued after such bonus becomes due and payable in accordance with the terms of
the Employment Agreement), to you for services rendered; (d) provided that the Common Stock is
“publicly traded” (as defined below), through a “same day sale” commitment from you and a
broker-dealer that is a member of the NASD (an “NASD Dealer”) whereby you irrevocably elect to
exercise the Option and to sell a portion of the Common Stock so purchased to pay for the exercise
price and whereby the NASD Dealer irrevocably commits upon receipt of such Common Stock to forward
the exercise price directly to the Company; or (e) any combination of the foregoing. For purposes
of this paragraph, the Common Stock shall be deemed to be “publicly traded” if it is listed or
traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market System.



      3. Termination of Employment.



      Upon the termination of your employment with the Company or any Related Entity, the Option may
be exercised in accordance with the following provisions:



            (a) Death or Disability. In the case of termination of your employment with the
Company or any Related Entity due to death or Disability (as defined in your Employment Agreement),
all Option Shares shall vest as of the Date of Termination (as defined in your Employment
Agreement) and immediately become Vested Shares, and your estate (or any Person who acquired the
right to exercise such Option by bequest or inheritance or otherwise by reason of your death) or
your legal representative may exercise the Option, subject to the provisions of Section 7, with
respect to all or any part of the Vested Shares until the earlier of (w) the date the Option would
otherwise expire in accordance with its terms, (x) if the Date of Termination is prior to a
Qualifying Public Offering, the 270th day after a Qualifying Public Offering, (y) if the Date of
Termination is after a Qualifying Public Offering, the 90th day after the Date of Termination, or
(z) the 90th day after the completion of a merger, combination, share exchange or similar
transaction involving the Company pursuant to which the securities for which this Option is then
exercisable are listed on a national securities exchange or the Nasdaq National Market System or
any successor thereto.



3









 





            (b) Good Reason; Other Than for Cause, Death or Disability. In the case of
termination of your employment with the Company or any Related Entity for Good Reason (as defined
in your Employment Agreement) or without Cause (as defined in your Employment Agreement) and other
than due to death or Disability, all Option Shares shall vest as of the Date of Termination and
immediately become Vested Shares, and you may exercise the Option, subject to the provisions of
Section 7, with respect to all or any part of the Vested Shares until the earlier of (w) the date
the Option would otherwise expire in accordance with its terms, (x) if the Date of Termination is
prior to a Qualifying Public Offering, the 270th day after a Qualifying Public Offering, (y) if the
Date of Termination is after a Qualifying Public Offering, the 90th day after the Date of
Termination, or (z) the 90th day after the completion of a merger, combination, share exchange or
similar transaction involving the Company pursuant to which the securities for which this Option is
then exercisable are listed on a national securities exchange or the Nasdaq National Market System
or any successor thereto.



            (c) Cause or Without Good Reason. In the case of termination of your employment with
the Company or any Related Entity for Cause or without Good Reason, then you shall immediately
forfeit your rights under the Option as to Option Shares which are Nonvested Shares immediately
prior to the Date of Termination, however, you may exercise the Option, subject to the provisions
of Section 7, with respect to all or any part of the Vested Shares until the earlier of (w) the
date the Option would otherwise expire in accordance with its terms, (x) if the Date of Termination
is prior to a Qualifying Public Offering, the 270th day after a Qualifying Public Offering, (y) if
the Date of Termination is after a Qualifying Public Offering, the 90th day after the Date of
Termination, or (z) the 90th day after the completion of a merger, combination, share exchange or
similar transaction involving the Company pursuant to which the securities for which this Option is
then exercisable are listed on a national securities exchange or the Nasdaq National Market System
or any successor thereto.



            (d) Board Determination. In the case of termination of your employment with the
Company or any Related Entity pursuant to a Board Determination (as defined in your Employment
Agreement), then you shall immediately forfeit your rights under the Option as to Option Shares
which are Nonvested Shares immediately prior to the Date of Termination, however, you may exercise
the Option, subject to the provisions of Section 7, with respect to all or any part of the Vested
Shares until the earlier of (w) the date the Option would otherwise expire in accordance with its
terms, (x) if the Date of Termination is prior to a Qualifying Public Offering, the 270th day after
a Qualifying Public Offering, (y) if the Date of Termination is after a Qualifying Public Offering,
the 90th day after the Date of Termination, or (z) the 90th day after the completion of a merger,
combination, share exchange or similar transaction involving the Company pursuant to which the
securities for which this Option is then exercisable are listed on a national securities exchange
or the Nasdaq National Market System or any successor thereto.



      4. Transferability.



      Except as provided in Section 7 hereof, the Option and any rights or interests therein will be
assignable or transferable by you only as provided in Section 11 of the Plan (and by the execution
and delivery hereof the Committee shall be deemed to have permitted all such transfers described in
Section 11 of the Plan) and by will or the laws of descent and distribution. Any Option Shares
received upon exercise of this Option are subject to the Company’s Right of



4









 





First Refusal (as defined in the Plan), except that the ninety (90) day period for providing
notice of a proposed transfer pursuant to such Right of First Refusal shall be thirty (30) days.



      To assure the enforceability of the Company’s rights under this Section 4 in regard to the
Right of First Refusal, each certificate or instrument representing Common Stock held by you shall
bear a conspicuous legend in substantially the following form:




THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF FIRST REFUSAL PROVIDED
UNDER THE COMPANY’S 2002 STOCK OPTION PLAN ENTERED INTO PURSUANT THERETO. A COPY OF SUCH
OPTION PLAN IS AVAILABLE UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL EXECUTIVE
OFFICES.



      5. Registration.



      The Company shall not in any event be obligated to file any registration statement under the
Securities Act or any applicable state securities laws to permit exercise of the Option or to issue
any Common Stock in violation of the Securities Act or any applicable state securities laws. You
(or in the event of your death or, in the event a legal representative has been appointed in
connection with your Disability, the Person exercising the Option) shall, as a condition to your
right to exercise the Option, deliver to the Company an agreement or certificate containing such
representations, warranties and covenants as the Company may deem necessary or appropriate to
ensure that the issuance of the Option Shares pursuant to such exercise is not required to be
registered under the Securities Act or any applicable state securities laws.



      Certificates for Option Shares, when issued, shall have substantially the following legend, or
statements of other applicable restrictions, endorsed thereon, and may not be immediately
transferable:





THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS. THE SHARES MAY NOT BE OFFERED FOR
SALE, SOLD, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF UNTIL THE HOLDER HEREOF PROVIDES
EVIDENCE SATISFACTORY TO THE ISSUER (WHICH, IN THE DISCRETION OF THE ISSUER, MAY INCLUDE AN
OPINION OF COUNSEL SATISFACTORY TO THE ISSUER) THAT SUCH OFFER, SALE, PLEDGE, TRANSFER OR
OTHER DISPOSITION WILL NOT VIOLATE APPLICABLE FEDERAL OR STATE LAWS.



      The foregoing legend may not be required for Option Shares issued pursuant to an effective,
registration statement under the Securities Act and in accordance with applicable state securities
laws.



      6. Withholding Taxes.



      By acceptance hereof, you hereby (i) agree to reimburse the Company or any Related Entity by
which you are employed for any federal, state or local taxes required by any government to be
withheld or otherwise deducted by such corporation in respect of your exercise



5









 





of all or a portion of the Option, (ii) authorize the Company or any Related Entity by which
you are employed to withhold from any cash compensation paid to you or on your behalf, an amount
sufficient to discharge any federal, state and local taxes imposed on the Company, or the Related
Entity by which you are employed, and which otherwise has not been reimbursed by you, in respect of
your exercise of all or a portion of the Option, and (iii) agree that the Company may, in its
discretion, hold the stock certificate to which you are entitled upon exercise of the Option as
security for the payment of the aforementioned withholding tax liability, until cash sufficient to
pay that liability has been accumulated, and may, in its discretion, effect such withholding by
retaining shares issuable upon the exercise of the Option having a Fair Market Value on the date of
exercise which is equal to the amount to be withheld.



      7. Purchase Option.



            (a) If (i) your employment with the Company or a Related Entity terminates for any reason at
any time or (ii) a Change of Control occurs, the Company (and/or its designees) shall have the
option (the “Purchase Option”) to purchase, and you (or your executor or the administrator of your
estate or the Person who acquired the right to exercise the Option by bequest or inheritance, in
the event of your death, or your legal representative in the event of your incapacity (hereinafter,
collectively with you, the “Grantor”)) shall sell to the Company and/or its assignee(s), all or any
portion (at the Company’s option) of the Option Shares and/or the Option held by the Grantor (such
Option Shares and Option collectively being referred to as the “Purchasable Shares”), subject to
the Company’s compliance with the conditions hereinafter set forth.



            (b) The Company shall give notice in writing to the Grantor of the exercise of the Purchase
Option within six (6) months from the date of the termination of your employment or engagement or
such Change of Control. Such notice shall state the number of Purchasable Shares to be purchased
and the determination of the Board of Directors of the Fair Market Value per share of such
Purchasable Shares. If no notice is given within the time limit specified above, the Purchase
Option shall terminate.



            (c) The purchase price to be paid for the Purchasable Shares purchased pursuant to the
Purchase Option shall be, in the case of any Option Shares, an amount equal to the Fair Market
Value per share as of the date of the notice of exercise of the Purchase Option multiplied by the
number of shares being purchased, and in the case of the Option (including Vested and Nonvested
Shares subject to such Option), an amount equal to the Fair Market Value per share less the
applicable per share Exercise Price multiplied by the number of Vested Shares subject to such
Option which are being purchased. Any purchase price shall be paid in cash. The closing of such
purchase shall take place at the Company’s principal executive offices within ten (10) days after
the purchase price has been determined. At such closing, the Grantor shall deliver to the
purchasers the certificates or instruments evidencing the Purchasable Shares being purchased, duly
endorsed (or accompanied by duly executed stock powers) and otherwise in good form for delivery,
against payment of the purchase price by check of the purchasers. In the event that,
notwithstanding the foregoing, the Grantor shall have failed to obtain the release of any pledge or
other encumbrance on any Purchasable Shares by the scheduled closing date, at the option of the
purchasers the closing shall nevertheless occur on such scheduled closing date,



6









 





with the cash purchase price being reduced to the extent of all unpaid indebtedness for which
such Purchasable Shares are then pledged or encumbered.



            (d) To assure the enforceability of the Company’s rights under this Section 7, each
certificate or instrument representing Common Stock held by you shall bear a conspicuous legend in
substantially the following form:




THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN OPTION TO REPURCHASE PROVIDED
UNDER THE PROVISIONS OF THE COMPANY’S 2002 STOCK OPTION PLAN. A COPY OF SUCH OPTION PLAN IS
AVAILABLE UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.



            (e) The Company’s rights under this Section 7 shall terminate upon the consummation of a
Qualifying Public Offering



      8. Consent to Approved Sale.



      If the Board and the holders of a majority of the Common Stock then outstanding approve the
Sale of the Company to an independent third party (the “Approved Sale”), you shall consent
to and raise no objections against the Approved Sale, and if the Approved Sale is structured as a
sale of capital stock, you shall agree to sell all of your Option Shares and rights to acquire
Option Shares on the terms and conditions approved by the Board of Directors and the holders of a
majority of the Common Stock then outstanding. You shall take all necessary and desirable actions
in connection with the consummation of the Approved Sale. For purposes of this Section 8, an
“independent third party” is any person who does not own in excess of 5% of the Common Stock on a
fully-diluted basis, who is not controlling, controlled by or under common control with any such 5%
owner of the Common Stock and who is not the spouse, ancestor, descendant (by birth or adoption) or
descendent of a grandparent of any such 5% owner of the Common Stock. If the Company or the
holders of the Company’s securities enter into any negotiation or transaction for which Rule 506
(or any similar rule then in effect) promulgated pursuant to the Securities Act may be available
with respect to such negotiation or transaction (including a merger, consolidation or other
reorganization), you shall, at the request of the Company, appoint a purchaser representative (as
such term is defined in Rule 501 promulgated pursuant to the Securities Act) reasonably acceptable
to the Company. If you appoint the purchaser representative designated by the Company, the Company
will pay the fees of such purchaser representative, but if you decline to appoint the purchaser
representative designated by the Company you shall appoint another purchaser representative
(reasonably acceptable to the Company), and you shall be responsible for the fees of the purchaser
representative so appointed.



      9. Adjustments.



      In the event that, by reason of any merger, consolidation, combination, liquidation,
reorganization, recapitalization, stock dividend, stock split, split-up, split-off, spin-off,
combination of shares, exchange of shares or other like change in capital structure of the Company
(collectively, a “Reorganization”), the Common Stock is substituted, combined, or changed
into any cash, property, or other securities, or the shares of Common Stock are changed



7









 





into a greater or lesser number of shares of Common Stock, the number and/or kind of shares
and/or interests subject to an Option and the per share price or value thereof shall be
appropriately adjusted by the Committee to give appropriate effect to such Reorganization. Any
fractional shares or interests resulting from such adjustment shall be eliminated.



      10. Miscellaneous.



            (a) This Option Agreement is subject to all the terms, conditions, limitations and
restrictions contained in the Plan, provided, however, that the express terms and provisions of
this Option Agreement are intended to modify certain terms and provisions of the Plan. In the
event of any conflict or inconsistency between the express terms and provisions of this Option
Agreement and the terms of the Plan, the terms of this Option Agreement shall be controlling.



            (b) This Option Agreement is not a contract of employment and the terms of your employment
shall not be affected by, or construed to be affected by, this Option Agreement, except to the
extent specifically provided herein. Nothing herein shall impose, or be construed as imposing, any
obligation (i) on the part of the Company or any Related Entity to continue your employment, or
(ii) on your part to remain in the employ of the Company or any Related Entity.



            (c) Unless the managing underwriter otherwise agrees, in connection with any Qualifying Public
Offering or subsequent underwritten public offering of equity securities of the Company, you agree
not to effect any public sale or private offer or distribution of any shares of Common Stock during
the ten business days prior to the effectiveness under the Securities Act of the registration
statement filed in respect of such offering and during such time period after the effectiveness
under the Securities Act of such registration statement (not to exceed 180 days) (except if
applicable as part of such offering) as the Company and the managing underwriter may agree.



            (d) You shall not have any of the rights of a stockholder with respect to the shares of Common
Stock underlying the Option until the Option is exercised and you receive such shares.



            (e) This Option Agreement may be amended as provided in Section 19 of the Plan.



[Remainder of this page intentionally left blank]




8









 








      Please indicate your acceptance of all the terms and conditions of the Option and the Plan by
signing and returning a copy of this Option Agreement.



	 	 	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 	 	 
	 	 	SWIFT & COMPANY
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 
	 	 	Name:
	 

	 	 	 	 	 	 
	 	 	Title:
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	ACCEPTED:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

John Simons
	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 
	 

Employee Social Security Number or
	 	 	 	 	 	 
	Taxpayer Identification Number
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Date:                                         ,                     
	 	 	 	 	 	 






 









 






      FIRST AMENDMENT TO SIMONS EXECUTIVE EMPLOYMENT AGREEMENT made and entered into as of July 12,
2002, by and between Swift Foods Company, formerly known as S&C Holdco, Inc., a Delaware
corporation (“Holdco”) and John Simons (“Simons”).



RECITALS:




      WHEREAS, the parties hereto are parties to the Executive Employment Agreement dated May 20,
2002 (the “Agreement”);



      WHEREAS, the Agreement was prepared in a manner that anticipated Holdco’s name to be changed
to “Swift & Company”;



      WHEREAS, the parties desire to amend the Agreement to provide and reflect that Holdco’s name
shall be changed to “Swift Foods Company” rather than “Swift & Company”;



      NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:



      Section 1. Corporate Name Change of Holdco in Agreement. The Agreement is
herby amended to reflect that Holdco’s name shall be changed to “Swift Foods Company” rather than
“Swift & Company.”



      Section 2. Defined Terms. Capitalized terms used but not otherwise defined
herein shall have the respective meanings ascribed to such terms in the Agreement.



      Section 3. Amendments. This First Amendment to Simons Executive Employment
Agreement shall not be amended except in a writing signed by the parties hereto.



      Section 4 Counterparts. This First Amendment to Simons Executive Employment
Agreement may be executed and delivered (including by facsimile transmission) in one or more
counterparts, each of which shall be regarded as an original and all of which shall constitute one
and the same instrument.



      Section 5 Applicable Law. This First Amendment to Simons Executive Employment
Agreement and the legal relations between the parties hereto shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts made and performed in
Delaware.



      Section 6 Consent to Jurisdiction. THE PARTIES HERETO HEREBY IRREVOCABLY
SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR DELAWARE STATE COURT SITTING
IN WILMINGTON, DELAWARE IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION
OR PROCEEDING SHALL BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE



 









 





OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM.



[SIGNATURE PAGE FOLLOWS]




2









 








     The undersigned parties have executed this First Amendment to Simons Executive Employment
Agreement as of the dated first set forth above.



	 	 	 
	 

	 	EXECUTIVE
	 
	 	 
	 

	 	/s/ John Simons
	 

	 	 
	 

	 	John Simons






	 	 	 	 	 
	 	 	SWIFT FOODS COMPANY
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Dwight J. Goslee, President
	 

	 	 	 	 
	 

	 	 	 	Dwight J. Goslee, President






3









 






EXECUTION VERSION




     SECOND AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT (this “Amendment”) is made and entered into
as of November 3, 2004, by and among SFC Inc. (formerly known as Swift Foods Company), a Delaware
corporation (the “Company”), Swift Foods Company (formerly known as Rawhide Subsidiary 1 Inc.), a
Delaware corporation (“New SFC”), and John Simons (“Simons”).



RECITALS:




     WHEREAS, the parties hereto are parties to the Executive Employment Agreement, dated May 20,
2002, as amended by that certain First Amendment to Executive Employment Agreement, dated July 12,
2002, by and between the parties (as amended, the “Agreement”).



     WHEREAS, in contemplation of certain corporate restructuring changes to and by the Company and
certain of its subsidiaries, the Agreement is to be amended such that all references contained
therein to Holdco or Swift Foods Company shall refer instead to New SFC and New SFC shall assume
all the rights and obligations of Holdco or Swift Foods Company under the Agreement.



     NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:



     1. References and Assumption of Agreement. The Agreement is hereby amended such that
all references contained therein to Holdco or Swift Foods Company shall refer instead to New SFC
and New SFC shall assume all the rights and obligations of Holdco or Swift Foods Company under the
Agreement.



     2. Defined Terms. Capitalized terms used but not otherwise defined herein shall have
the respective meanings ascribed to such terms in the Agreement.



     3. Amendments. This Amendment not be amended except in a writing signed by the
parties hereto.



     4. Counterparts. This Amendment may be executed and delivered (including by facsimile
transmission) in one or more counterparts, each of which shall be regarded as an original and all
of which shall constitute one and the same instrument.



     5. Applicable Law. This Amendment and the legal relations between the parties hereto
shall be governed by and construed in accordance with the laws of the State of Delaware applicable
to contracts made and performed in Delaware.



     6. Consent to Jurisdiction. THE PARTIES HERETO HEREBY IRREVOCABLY SUBMIT TO THE
EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR DELAWARE STATE COURT SITTING IN WILMINGTON,
DELAWARE IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING
SHALL BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW



 









 





OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH COURT
OR THAT SUCH COURT IS AN INCONVENIENT FORUM.



 









 








     The undersigned parties have executed this Amendment as of the dated first set forth above.



	 	 	 	 	 	 	 
	 	 	EXECUTIVE	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ John Simons	 	 
	 	 	 	 	 
	 	 	John Simons	 	 
	 
	 	 	 	 	 	 
	 	 	SWIFT FOODS COMPANY	 	 
	 	 	(formerly known as Rawhide Subsidiary 1 Inc.)	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Donald F. Wiseman	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Donald F. Wiseman	 	 
	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	SFC INC.	 	 
	 	 	(formerly known as Swift Foods Company)	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Donald F. Wiseman	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Donald F. Wiseman	 	 
	 	 	Title: Vice President	 	 






 









 






EXECUTION VERSION




EXHIBIT B




Option Agreements




B-1









 








THE SHARES ISSUABLE PURSUANT TO THIS AGREEMENT ARE SUBJECT TO AN OPTION TO REPURCHASE AND A RIGHT
OF FIRST REFUSAL PROVIDED UNDER THE PROVISIONS OF THE COMPANY’S 2002 STOCK OPTION PLAN AND THIS
AGREEMENT IS ENTERED INTO PURSUANT THERETO. COPIES OF THE PLAN ARE AVAILABLE UPON WRITTEN REQUEST
TO THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.



SWIFT FOODS COMPANY

2002 STOCK OPTION PLAN




NON-QUALIFIED STOCK OPTION AGREEMENT




September 19, 2002




John Simons

c/o Swift Foods Company

1770 Promontory Circle

Greeley, Colorado 80634



Re: Grant of Stock Option




Dear John:




      The Board of Directors of Swift Foods Company (the “Company”) has adopted the
Company’s 2002 Stock Option Plan (the “Plan”) for certain individuals, directors and key
employees of the Company and its Related Entities. A copy of the Plan is being furnished to you
concurrently with the execution of this Option Agreement and shall be deemed a part of this Option
Agreement as if fully set forth herein.



      The terms and provisions of that certain employment agreement between you and the Company,
dated as of May 20, 2002 (together with any successor or replacement agreement, the “Employment
Agreement”), that relate to or affect the Option are incorporated herein by reference. Terms
not defined herein that are defined in the Employment Agreement shall have the respective meanings
set forth in the Employment Agreement. Terms not defined herein that are not defined in the
Employment Agreement shall have the respective meanings set forth in the Plan. In the event of any
conflict or inconsistency between the terms and conditions of this Option Agreement and the terms
and conditions of the Employment Agreement, the terms and conditions of the Employment Agreement
shall be controlling.



1









 





      1. The Grant.



      Subject to the conditions set forth below, the Company hereby grants to you, effective as of
September 19, 2002 (“Grant Date”), as a matter of separate inducement and not in lieu of
any salary or other compensation for your services, the right and option to purchase (the
“Option”), in accordance with the terms and conditions set forth herein and in the Plan, an
aggregate of Six Million Four Hundred Thousand (6,400,000) shares of Common Stock of the Company
(the “Option Shares”), at the Exercise Price (as hereinafter defined). As used herein, the
term “Exercise Price” shall mean a price equal to $1.00 per share, subject to the adjustments and
limitations set forth herein and in the Plan. The Option granted hereunder is intended to
constitute a Non-Qualified Option within the meaning of the Plan; however, you should consult with
your tax advisor concerning the proper reporting of any federal or state tax liability that may
arise as a result of the grant or exercise of the Option.



      2. Exercise and Vesting.



            (a) For purposes of this Option Agreement, the Option Shares shall be deemed “Nonvested
Shares” unless and until they have become “Vested Shares.” Except as otherwise provided in Section
3, the Option Shares shall become “Vested Shares” as follows: (i) one-quarter
(1/4) of the Option Shares (i.e. 1,600,000 Option Shares) shall vest
immediately on the Grant Date and (ii) thereafter, beginning on the last day of the month following
the month in which the first annual anniversary of the Grant Date occurs, 133,333 Option Shares
shall vest monthly on the last day of each month, provided that 133,345 Option Shares shall vest on
the last day of the 48th month following the Grant Date, so that all of the Option
Shares shall be vested four years after the Grant Date, provided, however, that vesting shall cease
upon your ceasing to be an employee of the Company or a Related Entity as expressly provided in
Section 3 hereof.



            (b) Notwithstanding anything to the contrary contained in this Option Agreement, in the event
that a Sale of the Company or Change of Control occurs while you are an employee of the Company or
any Related Entity, then all of the Option Shares shall vest and become Vested Shares immediately
prior to the consummation of a Sale of the Company or Change of Control.



            (c) The Option Shares that are subject to monthly vesting in each of the second, third and
fourth years after the Grant Date shall become exercisable only on the anniversary of the Grant
Date occurring at the end of the twelve (12) month period during which they have vested; provided
that any Vested Shares shall be exercisable immediately prior to the consummation of a Sale of the
Company or a Change of Control and, subject to the other terms of this Option Agreement,
immediately following a Termination of Employment. Subject to preceding sentence and the other
relevant provisions and limitations contained herein and in the Plan, you may exercise the Option
to purchase all or a portion of the applicable number of Vested Shares at any time prior to the
termination of the Option pursuant to this Option Agreement. In no event shall you be entitled to
exercise the Option for any Nonvested Shares or for a fraction of a Vested Share or for less than
100 shares (unless the number purchased is the total balance for which the Option is then
exercisable).



2









 





            (d) The unexercised portion of the Option, if any, will automatically, and without notice,
terminate and become null and void upon the expiration of 10 years from the Grant Date and, except
as expressly provided herein, no portion of the Option may be exercised after such date.



            (e) Any exercise by you of the Option shall be in writing addressed to the Secretary of the
Company at its principal place of business (a copy of the form of exercise to be used will be
available upon written request to the Secretary), specifying the Option being exercised and the
number of shares of Common Stock to be purchased, and specifying a business day not more than 10
days from the date such notice is given for the payment of the purchase price against delivery of
the shares of Common Stock being purchased. Subject to the terms of the Plan and this Option
Agreement, the Company shall cause certificates for the shares so purchased to be delivered at the
principal business office of the Company, against payment of the full purchase price, on the date
specified in the notice of exercise. The Exercise Price shall be paid by you in cash by delivery
of a certified or bank check payable to the order of the Company in the full amount of the Exercise
Price of the shares so purchased, or in such other manner as described in the Plan and approved by
the Committee. Notwithstanding the foregoing, if permitted by law, payment may be made by: (a)
cancellation of any indebtedness of the Company owed to you; (b) delivering that number of shares
of Common Stock already owned by you having an aggregate Fair Market Value which shall equal the
exercise price (or any portion thereof) and to deliver the shares thus acquired by you in payment
of shares to be received pursuant to the exercise of additional portions of such Option, the effect
of which shall be that you can in sequence utilize such newly acquired shares in payment of the
exercise price of the entire Option; (c) by waiver of compensation owed, including any bonus
(provided, however, that any bonus shall be deemed to be owed after such bonus becomes due and
payable in accordance with the terms of the Employment Agreement), to you from the Company for
services rendered; (d) provided that the Common Stock is “publicly traded” (as defined below),
through a “same day sale” commitment from you and a broker-dealer that is a member of the National
Association of Securities Dealers, Inc. (a “NASD Dealer”) whereby you irrevocably elect to exercise
the Option and to sell a portion of the Common Stock so purchased to pay for the exercise price and
whereby the NASD Dealer irrevocably commits upon receipt of such Common Stock to forward the
exercise price directly to the Company; or (e) any combination of the foregoing. For purposes of
this paragraph, the Common Stock shall be deemed to be “publicly traded” if it is listed or traded
on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market System.



      3. Termination of Employment.



      Upon the termination of your employment with the Company or any Related Entity, the Option may
be exercised in accordance with the following provisions:



            (a) Death or Disability. In the case of termination of your employment with the
Company or any Related Entity due to death or Disability (as defined in your Employment Agreement),
all Option Shares shall vest as of the Date of Termination (as defined in your Employment
Agreement) and immediately become Vested Shares, and your estate (or any Person who acquired the
right to exercise such Option by bequest or inheritance or otherwise by reason of your death) or
your legal representative may exercise the Option, subject to the



3









 





provisions of Section 7, with respect to all or any part of the Vested Shares until the
earlier of (w) the date the Option would otherwise expire in accordance with its terms, (x) if the
Date of Termination is prior to a Qualifying Public Offering, the 270th day after a Qualifying
Public Offering, (y) if the Date of Termination is after a Qualifying Public Offering, the 90th day
after the Date of Termination, or (z) the 90th day after the completion of a merger, combination,
share exchange or similar transaction involving the Company pursuant to which the securities for
which this Option is then exercisable are listed on a national securities exchange or the Nasdaq
National Market System or any successor thereto.



            (b) Good Reason; Other Than for Cause, Death or Disability. In the case of
termination of your employment with the Company or any Related Entity for Good Reason (as defined
in your Employment Agreement) or without Cause (as defined in your Employment Agreement) and other
than due to death, Disability or a Board Determination, all Option Shares shall vest as of the Date
of Termination and immediately become Vested Shares, and you may exercise the Option, subject to
the provisions of Section 7, with respect to all or any part of the Vested Shares until the earlier
of (w) the date the Option would otherwise expire in accordance with its terms, (x) if the Date of
Termination is prior to a Qualifying Public Offering, the 270th day after a Qualifying Public
Offering, (y) if the Date of Termination is after a Qualifying Public Offering, the 90th day after
the Date of Termination, or (z) the 90th day after the completion of a merger, combination, share
exchange or similar transaction involving the Company pursuant to which the securities for which
this Option is then exercisable are listed on a national securities exchange or the Nasdaq National
Market System or any successor thereto.



            (c) Cause or Without Good Reason. In the case of termination of your employment with
the Company or any Related Entity for Cause or without Good Reason, then you shall immediately
forfeit your rights under the Option as to Option Shares which are Nonvested Shares immediately
prior to the Date of Termination, however, you may exercise the Option, subject to the provisions
of Section 7, with respect to all or any part of the Vested Shares until the earlier of (w) the
date the Option would otherwise expire in accordance with its terms, (x) if the Date of Termination
is prior to a Qualifying Public Offering, the 270th day after a Qualifying Public Offering, (y) if
the Date of Termination is after a Qualifying Public Offering, the 90th day after the Date of
Termination, or (z) the 90th day after the completion of a merger, combination, share exchange or
similar transaction involving the Company pursuant to which the securities for which this Option is
then exercisable are listed on a national securities exchange or the Nasdaq National Market System
or any successor thereto.



            (d) Board Determination. In the case of termination of your employment with the
Company or any Related Entity pursuant to a Board Determination (as defined in your Employment
Agreement), then you shall immediately forfeit your rights under the Option as to Option Shares
which are Nonvested Shares immediately prior to the Date of Termination, however, you may exercise
the Option, subject to the provisions of Section 7, with respect to all or any part of the Vested
Shares until the earlier of (w) the date the Option would otherwise expire in accordance with its
terms, (x) if the Date of Termination is prior to a Qualifying Public Offering, the 270th day after
a Qualifying Public Offering, (y) if the Date of Termination is after a Qualifying Public Offering,
the 90th day after the Date of Termination, or (z) the 90th day after the completion of a merger,
combination, share exchange or similar transaction involving the



4









 





Company pursuant to which the securities for which this Option is then exercisable are listed
on a national securities exchange or the Nasdaq National Market System or any successor thereto.



      4. Transferability.



      Except as provided in Section 7 hereof, the Option and any rights or interests therein will be
assignable or transferable by you only as provided in Section 11 of the Plan (and by the execution
and delivery hereof the Committee shall be deemed to have approved in advance any transfers to
Permitted Transferees described in Section 11(b)(i) of the Plan, provided, however,
that you will still be required to comply with all procedures and restrictions reasonably required
by the Committee to document and effect such transfer) and by will or the laws of descent and
distribution. Any Option Shares received upon exercise of this Option are subject to the Company’s
Right of First Refusal (as defined in the Plan), except that the ninety (90) day period for
providing notice of a proposed transfer pursuant to such Right of First Refusal shall be thirty
(30) days.



      To assure the enforceability of the Company’s rights under this Section 4 in regard to the
Right of First Refusal, each certificate or instrument representing Common Stock held by you shall
bear a conspicuous legend in substantially the following form:




THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF FIRST REFUSAL
PROVIDED UNDER THE COMPANY’S 2002 STOCK OPTION PLAN ENTERED INTO PURSUANT THERETO.
A COPY OF SUCH OPTION PLAN IS AVAILABLE UPON WRITTEN REQUEST TO THE COMPANY AT ITS
PRINCIPAL EXECUTIVE OFFICES.



      5. Registration.



      The Company shall not in any event be obligated to file any registration statement under the
Securities Act or any applicable state securities laws to permit exercise of the Option or to issue
any Common Stock in violation of the Securities Act or any applicable state securities laws. You
(or in the event of your death or, in the event a legal representative has been appointed in
connection with your Disability, the Person exercising the Option) shall, as a condition to your
right to exercise the Option, deliver to the Company an agreement or certificate containing such
representations, warranties and covenants as the Company may deem necessary or appropriate to
ensure that the issuance of the Option Shares pursuant to such exercise is not required to be
registered under the Securities Act or any applicable state securities laws.



      Certificates for Option Shares, when issued, shall have substantially the following legend, or
statements of other applicable restrictions, endorsed thereon, and may not be immediately
transferable:




THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS. THE SHARES MAY NOT BE
OFFERED FOR SALE, SOLD, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF UNTIL THE
HOLDER HEREOF PROVIDES EVIDENCE SATISFACTORY TO THE ISSUER (WHICH, IN THE DISCRETION
OF THE



5









 






ISSUER, MAY INCLUDE AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER) THAT SUCH
OFFER, SALE, PLEDGE, TRANSFER OR OTHER DISPOSITION WILL NOT VIOLATE APPLICABLE
FEDERAL OR STATE LAWS.



      The foregoing legend may not be required for Option Shares issued pursuant to an effective,
registration statement under the Securities Act and in accordance with applicable state securities
laws.



      6. Withholding Taxes.



      By acceptance hereof, you hereby (i) agree to reimburse the Company or any Related Entity by
which you are employed for any federal, state or local taxes required by any government to be
withheld or otherwise deducted by such corporation in respect of your exercise of all or a portion
of the Option, (ii) authorize the Company or any Related Entity by which you are employed to
withhold from any cash compensation paid to you or on your behalf, an amount sufficient to
discharge any federal, state and local taxes imposed on the Company, or the Related Entity by which
you are employed, and which otherwise has not been reimbursed by you, in respect of your exercise
of all or a portion of the Option, and (iii) agree that the Company may, in its discretion, hold
the stock certificate to which you are entitled upon exercise of the Option as security for the
payment of the aforementioned withholding tax liability, until cash sufficient to pay that
liability has been accumulated, and may, in its discretion, effect such withholding by retaining
shares issuable upon the exercise of the Option having a Fair Market Value on the date of exercise
which is equal to the amount to be withheld.



      7. Purchase Option.



            (a) If (i) your employment with the Company or a Related Entity terminates for any reason at
any time or (ii) a Sale of the Company or a Change of Control occurs, the Company (and/or its
designees) shall have the option (the “Purchase Option”) to purchase, and you or your transferees
(or your executor or the administrator of your estate or the Person who acquired the right to
exercise the Option by transfer, bequest or inheritance, in the event of your death, or your legal
representative in the event of your incapacity (hereinafter, collectively with you, the “Grantor”))
shall sell to the Company and/or its assignee(s), all or any portion (at the Company’s option) of
the Option Shares and/or the Option held by the Grantor (such Option Shares and Option collectively
being referred to as the “Purchasable Shares”), subject to the Company’s compliance with the
conditions hereinafter set forth.



            (b) The Company shall give notice in writing to the Grantor of the exercise of the Purchase
Option within six (6) months from the date of the termination of your employment or engagement or
such Sale of the Company or Change of Control. Such notice shall state the number of Purchasable
Shares to be purchased and the determination of the Board of Directors of the Fair Market Value per
share of such Purchasable Shares. If no notice is given within the time limit specified above, the
Purchase Option shall terminate.



            (c) The purchase price to be paid for the Purchasable Shares purchased pursuant to the
Purchase Option shall be, in the case of any Option Shares, an amount equal to



6









 





the Fair Market Value per share as of the date of the notice of exercise of the Purchase
Option multiplied by the number of shares being purchased, and in the case of the Option (including
Vested and Nonvested Shares subject to such Option), an amount equal to the Fair Market Value per
share less the applicable per share Exercise Price multiplied by the number of Vested Shares
subject to such Option which are being purchased. Any purchase price shall be paid in cash. The
closing of such purchase shall take place at the Company’s principal executive offices within ten
(10) days after the purchase price has been determined. At such closing, the Grantor shall deliver
to the purchasers the certificates or instruments evidencing the Purchasable Shares being
purchased, duly endorsed (or accompanied by duly executed stock powers) and otherwise in good form
for delivery, against payment of the purchase price by check of the purchasers. In the event that,
notwithstanding the foregoing, the Grantor shall have failed to obtain the release of any pledge or
other encumbrance on any Purchasable Shares by the scheduled closing date, at the option of the
purchasers the closing shall nevertheless occur on such scheduled closing date, with the cash
purchase price being reduced to the extent of all unpaid indebtedness for which such Purchasable
Shares are then pledged or encumbered.



            (d) To assure the enforceability of the Company’s rights under this Section 7, each
certificate or instrument representing Common Stock held by you shall bear a conspicuous legend in
substantially the following form:




THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN OPTION TO REPURCHASE
PROVIDED UNDER THE PROVISIONS OF THE COMPANY’S 2002 STOCK OPTION PLAN. A COPY OF
SUCH OPTION PLAN IS AVAILABLE UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL
EXECUTIVE OFFICES.



            (e) The Company’s rights under this Section 7 shall terminate upon the consummation of a
Qualifying Public Offering



      8. Consent to Approved Sale.



      If the Board and the holders of a majority of the Common Stock then outstanding approve the
Sale of the Company to an independent third party (the “Approved Sale”), you shall consent to and
raise no objections against the Approved Sale, and if the Approved Sale is structured as a sale of
capital stock, you shall agree to sell all of your Option Shares and rights to acquire Option
Shares on the terms and conditions approved by the Board of Directors and the holders of a majority
of the Common Stock then outstanding. You shall take all necessary and desirable actions in
connection with the consummation of the Approved Sale. For purposes of this Section 8, an
“independent third party” is any person who does not own in excess of 5% of the Common Stock on a
fully-diluted basis, who is not controlling, controlled by or under common control with any such 5%
owner of the Common Stock and who is not the spouse, ancestor, descendant (by birth or adoption) or
descendent of a grandparent of any such 5% owner of the Common Stock. If the Company or the
holders of the Company’s securities enter into any negotiation or transaction for which Rule 506
(or any similar rule then in effect) promulgated pursuant to the Securities Act may be available
with respect to such negotiation or transaction (including a merger, consolidation or other
reorganization), you shall, at the request of the Company, appoint a purchaser representative (as
such term is defined in Rule 501 promulgated



7









 





pursuant to the Securities Act) reasonably acceptable to the Company. If you appoint the
purchaser representative designated by the Company, the Company will pay the fees of such purchaser
representative, but if you decline to appoint the purchaser representative designated by the
Company you shall appoint another purchaser representative (reasonably acceptable to the Company),
and you shall be responsible for the fees of the purchaser representative so appointed.



      9. Adjustments.



      In the event that, by reason of any merger, consolidation, combination, liquidation,
reorganization, recapitalization, stock dividend, stock split, split-up, split-off, spin-off,
combination of shares, exchange of shares or other like change in capital structure of the Company
(collectively, a “Reorganization”), the Common Stock is substituted, combined, or changed into any
cash, property, or other securities, or the shares of Common Stock are changed into a greater or
lesser number of shares of Common Stock, the number and/or kind of shares and/or interests subject
to an Option and the per share price or value thereof shall be appropriately adjusted by the
Committee to give appropriate effect to such Reorganization. Any fractional shares or interests
resulting from such adjustment shall be eliminated.



      10. Miscellaneous.



            (a) This Option Agreement is subject to all the terms, conditions, limitations and
restrictions contained in the Plan, provided, however, that the express terms and provisions of
this Option Agreement are intended to modify certain terms and provisions of the Plan. In the
event of any conflict or inconsistency between the express terms and provisions of this Option
Agreement and the terms of the Plan, the terms of this Option Agreement shall be controlling.



            (b) This Option Agreement is not a contract of employment and the terms of your employment
shall not be affected by, or construed to be affected by, this Option Agreement, except to the
extent specifically provided herein. Nothing herein shall impose, or be construed as imposing, any
obligation (i) on the part of the Company or any Related Entity to continue your employment, or
(ii) on your part to remain in the employ of the Company or any Related Entity.



            (c) Unless the managing underwriter otherwise agrees, in connection with any Qualifying Public
Offering or subsequent underwritten public offering of equity securities of the Company, you agree
not to effect any public sale or private offer or distribution of any shares of Common Stock during
the ten business days prior to the effectiveness under the Securities Act of the registration
statement filed in respect of such offering and during such time period after the effectiveness
under the Securities Act of such registration statement (not to exceed 180 days) (except if
applicable as part of such offering) as the Company and the managing underwriter may agree.



            (d) You shall not have any of the rights of a stockholder with respect to the shares of Common
Stock underlying the Option until the Option is exercised and you receive such shares.



            (e) For purposes of this Option Agreement, the following terms shall have the respective
meanings indicated:



8









 






      (i) “CAGCO Group” shall mean CAGCO and its Subsidiaries.




      (ii) “Change of Control” shall mean the first to occur of the following events:
(i) any sale, lease, exchange, or other transfer (in one transaction or series of
related transactions) of all or substantially all of the assets of the Company to
any Person or group of related Persons for purposes of Section 13(d) of the Exchange
Act, other than one or more members of the HMC Group, (ii) a majority of the Board
of Directors of the Company shall consist of Persons who are not Continuing
Directors; or (iii) the acquisition after the date of acceptance of this Plan by any
Person or Group (other than one or more members of the HMC Group or the CAGCO Group)
of the power, directly or indirectly, to vote or direct the voting of securities
having more than 50% of the ordinary voting power for the election of directors of
the Company.




      (iii) “Designated Date” shall mean the first date on which the Company shall
have consummated a Qualifying Public Offering.



            (f) This Option Agreement may be amended as provided in Section 19 of the Plan.



[Remainder of this page intentionally left blank]





9









 








      Please indicate your acceptance of all the terms and conditions of the Option and the Plan by
signing and returning a copy of this Option Agreement.



	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 
	 	 	SWIFT FOODS COMPANY
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Danny L. Herron
	 

	 	 	 	 
	 	 	Name: Danny L. Herron
	 	 	Title: EVP and CFO
	 
	 	 	 	 
	ACCEPTED:
	 	 	 	 
	 
	 	 	 	 
	/s/ John Simons
	 	 	 	 
	 

John Simons

	 	 	 	 
	 
	 	 	 	 
	###-##-####
	 	 	 	 
	 

Employee Social Security Number or

	 	 	 	 
	Taxpayer Identification Number
	 	 	 	 
	 
	 	 	 	 
	Date: September 18, 2002
	 	 	 	 






 









 






THE SHARES ISSUABLE PURSUANT TO THIS AGREEMENT ARE SUBJECT TO AN OPTION TO REPURCHASE AND A RIGHT
OF FIRST REFUSAL PROVIDED UNDER THE PROVISIONS OF THE COMPANY’S 2002 STOCK OPTION PLAN AND THIS
AGREEMENT IS ENTERED INTO PURSUANT THERETO. COPIES OF THE PLAN ARE AVAILABLE UPON WRITTEN REQUEST
TO THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.



SWIFT FOODS COMPANY

2002 STOCK OPTION PLAN




NON-QUALIFIED STOCK OPTION AGREEMENT




October 3, 2002




John Simons

c/o Swift Foods Company

1770 Promontory Circle

Greeley, Colorado 80634



Re: Grant of Stock Option




Dear John:




      The Board of Directors of Swift Foods Company (the “Company”) has adopted the
Company’s 2002 Stock Option Plan (the “Plan”) for certain individuals, directors and key
employees of the Company and its Related Entities. A copy of the Plan is being furnished to you
concurrently with the execution of this Option Agreement and shall be deemed a part of this Option
Agreement as if fully set forth herein.



      The terms and provisions of that certain employment agreement between you and the Company,
dated as of May 20, 2002 (together with any successor or replacement agreement, the “Employment
Agreement”), that relate to or affect the Option are incorporated herein by reference. Terms
not defined herein that are defined in the Employment Agreement shall have the respective meanings
set forth in the Employment Agreement. Terms not defined herein that are not defined in the
Employment Agreement shall have the respective meanings set forth in the Plan. In the event of any
conflict or inconsistency between the terms and conditions of this Option Agreement and the terms
and conditions of the Employment Agreement, the terms and conditions of the Employment Agreement
shall be controlling.



 









 





      1. The Grant.



      Subject to the conditions set forth below, the Company hereby grants to you, effective as of
October 3, 2002 (“Grant Date”), as a matter of separate inducement and not in lieu of any
salary or other compensation for your services, the right and option to purchase (the
“Option”), in accordance with the terms and conditions set forth herein and in the Plan, an
aggregate of One Million (1,000,000) shares of Common Stock of the Company (the “Option
Shares”), at the Exercise Price (as hereinafter defined). As used herein, the term “Exercise
Price” shall mean a price equal to $2.00 per share, subject to the adjustments and limitations set
forth herein and in the Plan. The Option granted hereunder is intended to constitute a
Non-Qualified Option within the meaning of the Plan; however, you should consult with your tax
advisor concerning the proper reporting of any federal or state tax liability that may arise as a
result of the grant or exercise of the Option.



      2. Exercise and Vesting.



            (a) For purposes of this Option Agreement, the Option Shares shall be deemed “Nonvested
Shares” unless and until they have become “Vested Shares.” Except as otherwise provided in Section
3, the Option Shares shall become “Vested Shares” as follows: (i) one-quarter
(1/4) of the Option Shares (i.e. 250,000 Option Shares) shall vest
immediately on the Grant Date and (ii) thereafter, beginning on the last day of the month following
the month in which the first annual anniversary of the Grant Date occurs, 20,833 Option Shares
shall vest monthly on the last day of each month, provided that 20,845 Option Shares shall vest on
the last day of the 48th month following the Grant Date, so that all of the Option
Shares shall be vested four years after the Grant Date, provided, however, that vesting shall cease
upon your ceasing to be an employee of the Company or a Related Entity as expressly provided in
Section 3 hereof.



            (b) Notwithstanding anything to the contrary contained in this Option Agreement, in the event
that a Sale of the Company or Change of Control occurs while you are an employee of the Company or
any Related Entity, then all of the Option Shares shall vest and become Vested Shares immediately
prior to the consummation of a Sale of the Company or Change of Control.



            (c) The Option Shares that are subject to monthly vesting in each of the second, third and
fourth years after the Grant Date shall become exercisable only on the anniversary of the Grant
Date occurring at the end of the twelve (12) month period during which they have vested; provided
that any Vested Shares shall be exercisable immediately prior to the consummation of a Sale of the
Company or a Change of Control and, subject to the other terms of this Option Agreement,
immediately following a Termination of Employment. Subject to preceding sentence and the other
relevant provisions and limitations contained herein and in the Plan, you may exercise the Option
to purchase all or a portion of the applicable number of Vested Shares at any time prior to the
termination of the Option pursuant to this Option Agreement. In no event shall you be entitled to
exercise the Option for any Nonvested Shares or for a fraction of a Vested Share or for less than
100 shares (unless the number purchased is the total balance for which the Option is then
exercisable).



2









 





            (d) The unexercised portion of the Option, if any, will automatically, and without notice,
terminate and become null and void upon the expiration of 10 years from the Grant Date and, except
as expressly provided herein, no portion of the Option may be exercised after such date.



            (e) Any exercise by you of the Option shall be in writing addressed to the Secretary of the
Company at its principal place of business (a copy of the form of exercise to be used will be
available upon written request to the Secretary), specifying the Option being exercised and the
number of shares of Common Stock to be purchased, and specifying a business day not more than 10
days from the date such notice is given for the payment of the purchase price against delivery of
the shares of Common Stock being purchased. Subject to the terms of the Plan and this Option
Agreement, the Company shall cause certificates for the shares so purchased to be delivered at the
principal business office of the Company, against payment of the full purchase price, on the date
specified in the notice of exercise. The Exercise Price shall be paid by you in cash by delivery
of a certified or bank check payable to the order of the Company in the full amount of the Exercise
Price of the shares so purchased, or in such other manner as described in the Plan and approved by
the Committee. Notwithstanding the foregoing, if permitted by law, payment may be made by: (a)
cancellation of any indebtedness of the Company owed to you; (b) delivering that number of shares
of Common Stock already owned by you having an aggregate Fair Market Value which shall equal the
exercise price (or any portion thereof) and to deliver the shares thus acquired by you in payment
of shares to be received pursuant to the exercise of additional portions of such Option, the effect
of which shall be that you can in sequence utilize such newly acquired shares in payment of the
exercise price of the entire Option; (c) by waiver of compensation owed, including any bonus
(provided, however, that any bonus shall be deemed to be owed after such bonus becomes due and
payable in accordance with the terms of the Employment Agreement), to you from the Company for
services rendered; (d) provided that the Common Stock is “publicly traded” (as defined below),
through a “same day sale” commitment from you and a broker-dealer that is a member of the National
Association of Securities Dealers, Inc. (a “NASD Dealer”) whereby you irrevocably elect to exercise
the Option and to sell a portion of the Common Stock so purchased to pay for the exercise price and
whereby the NASD Dealer irrevocably commits upon receipt of such Common Stock to forward the
exercise price directly to the Company; or (e) any combination of the foregoing. For purposes of
this paragraph, the Common Stock shall be deemed to be “publicly traded” if it is listed or traded
on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market System.



      3. Termination of Employment.



      Upon the termination of your employment with the Company or any Related Entity, the Option may
be exercised in accordance with the following provisions:



            (a) Death or Disability. In the case of termination of your employment with the
Company or any Related Entity due to death or Disability (as defined in your Employment Agreement),
all Option Shares shall vest as of the Date of Termination (as defined in your Employment
Agreement) and immediately become Vested Shares, and your estate (or any Person who acquired the
right to exercise such Option by bequest or inheritance or otherwise by reason of your death) or
your legal representative may exercise the Option, subject to the



3









 





provisions of Section 7, with respect to all or any part of the Vested Shares until the
earlier of (w) the date the Option would otherwise expire in accordance with its terms, (x) if the
Date of Termination is prior to a Qualifying Public Offering, the 270th day after a Qualifying
Public Offering, (y) if the Date of Termination is after a Qualifying Public Offering, the 90th day
after the Date of Termination, or (z) the 90th day after the completion of a merger, combination,
share exchange or similar transaction involving the Company pursuant to which the securities for
which this Option is then exercisable are listed on a national securities exchange or the Nasdaq
National Market System or any successor thereto.



            (b) Good Reason; Other Than for Cause, Death or Disability. In the case of
termination of your employment with the Company or any Related Entity for Good Reason (as defined
in your Employment Agreement) or without Cause (as defined in your Employment Agreement) and other
than due to death, Disability or a Board Determination, all Option Shares shall vest as of the Date
of Termination and immediately become Vested Shares, and you may exercise the Option, subject to
the provisions of Section 7, with respect to all or any part of the Vested Shares until the earlier
of (w) the date the Option would otherwise expire in accordance with its terms, (x) if the Date of
Termination is prior to a Qualifying Public Offering, the 270th day after a Qualifying Public
Offering, (y) if the Date of Termination is after a Qualifying Public Offering, the 90th day after
the Date of Termination, or (z) the 90th day after the completion of a merger, combination, share
exchange or similar transaction involving the Company pursuant to which the securities for which
this Option is then exercisable are listed on a national securities exchange or the Nasdaq National
Market System or any successor thereto.



            (c) Cause or Without Good Reason. In the case of termination of your employment with
the Company or any Related Entity for Cause or without Good Reason, then you shall immediately
forfeit your rights under the Option as to Option Shares which are Nonvested Shares immediately
prior to the Date of Termination, however, you may exercise the Option, subject to the provisions
of Section 7, with respect to all or any part of the Vested Shares until the earlier of (w) the
date the Option would otherwise expire in accordance with its terms, (x) if the Date of Termination
is prior to a Qualifying Public Offering, the 270th day after a Qualifying Public Offering, (y) if
the Date of Termination is after a Qualifying Public Offering, the 90th day after the Date of
Termination, or (z) the 90th day after the completion of a merger, combination, share exchange or
similar transaction involving the Company pursuant to which the securities for which this Option is
then exercisable are listed on a national securities exchange or the Nasdaq National Market System
or any successor thereto.




            (d) Board Determination. In the case of termination of your employment with the Company or
any Related Entity pursuant to a Board Determination (as defined in your Employment Agreement),
then you shall immediately forfeit your rights under the Option as to Option Shares which are
Nonvested Shares immediately prior to the Date of Termination, however, you may exercise the
Option, subject to the provisions of Section 7, with respect to all or any part of the Vested
Shares until the earlier of (w) the date the Option would otherwise expire in accordance with its
terms, (x) if the Date of Termination is prior to a Qualifying Public Offering, the 270th day after
a Qualifying Public Offering, (y) if the Date of Termination is after a Qualifying Public Offering,
the 90th day after the Date of Termination, or (z) the 90th day after the completion of a merger,
combination, share exchange or similar transaction involving the



4









 





Company pursuant to which the securities for which this Option is then exercisable are listed
on a national securities exchange or the Nasdaq National Market System or any successor thereto.



      4. Transferability.



      Except as provided in Section 7 hereof, the Option and any rights or interests therein will be
assignable or transferable by you only as provided in Section 11 of the Plan (and by the execution
and delivery hereof the Committee shall be deemed to have approved in advance any transfers to
Permitted Transferees described in Section 11(b)(i) of the Plan, provided, however,
that you will still be required to comply with all procedures and restrictions reasonably required
by the Committee to document and effect such transfer) and by will or the laws of descent and
distribution. Any Option Shares received upon exercise of this Option are subject to the Company’s
Right of First Refusal (as defined in the Plan), except that the ninety (90) day period for
providing notice of a proposed transfer pursuant to such Right of First Refusal shall be thirty
(30) days.



      To assure the enforceability of the Company’s rights under this Section 4 in regard to the
Right of First Refusal, each certificate or instrument representing Common Stock held by you shall
bear a conspicuous legend in substantially the following form:




THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF FIRST REFUSAL
PROVIDED UNDER THE COMPANY’S 2002 STOCK OPTION PLAN ENTERED INTO PURSUANT THERETO.
A COPY OF SUCH OPTION PLAN IS AVAILABLE UPON WRITTEN REQUEST TO THE COMPANY AT ITS
PRINCIPAL EXECUTIVE OFFICES.



      5. Registration.



      The Company shall not in any event be obligated to file any registration statement under the
Securities Act or any applicable state securities laws to permit exercise of the Option or to issue
any Common Stock in violation of the Securities Act or any applicable state securities laws. You
(or in the event of your death or, in the event a legal representative has been appointed in
connection with your Disability, the Person exercising the Option) shall, as a condition to your
right to exercise the Option, deliver to the Company an agreement or certificate containing such
representations, warranties and covenants as the Company may deem necessary or appropriate to
ensure that the issuance of the Option Shares pursuant to such exercise is not required to be
registered under the Securities Act or any applicable state securities laws.



      Certificates for Option Shares, when issued, shall have substantially the following legend, or
statements of other applicable restrictions, endorsed thereon, and may not be immediately
transferable:




THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS. THE SHARES MAY NOT BE
OFFERED FOR SALE, SOLD, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF UNTIL THE
HOLDER HEREOF PROVIDES EVIDENCE SATISFACTORY TO THE ISSUER (WHICH, IN THE DISCRETION
OF THE



5









 






ISSUER, MAY INCLUDE AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER) THAT SUCH
OFFER, SALE, PLEDGE, TRANSFER OR OTHER DISPOSITION WILL NOT VIOLATE APPLICABLE
FEDERAL OR STATE LAWS.



      The foregoing legend may not be required for Option Shares issued pursuant to an effective,
registration statement under the Securities Act and in accordance with applicable state securities
laws.



      6. Withholding Taxes.



      By acceptance hereof, you hereby (i) agree to reimburse the Company or any Related Entity by
which you are employed for any federal, state or local taxes required by any government to be
withheld or otherwise deducted by such corporation in respect of your exercise of all or a portion
of the Option, (ii) authorize the Company or any Related Entity by which you are employed to
withhold from any cash compensation paid to you or on your behalf, an amount sufficient to
discharge any federal, state and local taxes imposed on the Company, or the Related Entity by which
you are employed, and which otherwise has not been reimbursed by you, in respect of your exercise
of all or a portion of the Option, and (iii) agree that the Company may, in its discretion, hold
the stock certificate to which you are entitled upon exercise of the Option as security for the
payment of the aforementioned withholding tax liability, until cash sufficient to pay that
liability has been accumulated, and may, in its discretion, effect such withholding by retaining
shares issuable upon the exercise of the Option having a Fair Market Value on the date of exercise
which is equal to the amount to be withheld.



      7. Purchase Option.



            (a) If (i) your employment with the Company or a Related Entity terminates for any reason at
any time or (ii) a Sale of the Company or a Change of Control occurs, the Company (and/or its
designees) shall have the option (the “Purchase Option”) to purchase, and you or your transferees
(or your executor or the administrator of your estate or the Person who acquired the right to
exercise the Option by transfer, bequest or inheritance, in the event of your death, or your legal
representative in the event of your incapacity (hereinafter, collectively with you, the “Grantor”))
shall sell to the Company and/or its assignee(s), all or any portion (at the Company’s option) of
the Option Shares and/or the Option held by the Grantor (such Option Shares and Option collectively
being referred to as the “Purchasable Shares”), subject to the Company’s compliance with the
conditions hereinafter set forth.



            (b) The Company shall give notice in writing to the Grantor of the exercise of the Purchase
Option within six (6) months from the date of the termination of your employment or engagement or
such Sale of the Company or Change of Control. Such notice shall state the number of Purchasable
Shares to be purchased and the determination of the Board of Directors of the Fair Market Value per
share of such Purchasable Shares. If no notice is given within the time limit specified above, the
Purchase Option shall terminate.



            (c) The purchase price to be paid for the Purchasable Shares purchased pursuant to the
Purchase Option shall be, in the case of any Option Shares, an amount equal to



6









 





the Fair Market Value per share as of the date of the notice of exercise of the Purchase
Option multiplied by the number of shares being purchased, and in the case of the Option (including
Vested and Nonvested Shares subject to such Option), an amount equal to the Fair Market Value per
share less the applicable per share Exercise Price multiplied by the number of Vested Shares
subject to such Option which are being purchased. Any purchase price shall be paid in cash. The
closing of such purchase shall take place at the Company’s principal executive offices within ten
(10) days after the purchase price has been determined. At such closing, the Grantor shall deliver
to the purchasers the certificates or instruments evidencing the Purchasable Shares being
purchased, duly endorsed (or accompanied by duly executed stock powers) and otherwise in good form
for delivery, against payment of the purchase price by check of the purchasers. In the event that,
notwithstanding the foregoing, the Grantor shall have failed to obtain the release of any pledge or
other encumbrance on any Purchasable Shares by the scheduled closing date, at the option of the
purchasers the closing shall nevertheless occur on such scheduled closing date, with the cash
purchase price being reduced to the extent of all unpaid indebtedness for which such Purchasable
Shares are then pledged or encumbered.



            (d) To assure the enforceability of the Company’s rights under this Section 7, each
certificate or instrument representing Common Stock held by you shall bear a conspicuous legend in
substantially the following form:




THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN OPTION TO REPURCHASE
PROVIDED UNDER THE PROVISIONS OF THE COMPANY’S 2002 STOCK OPTION PLAN. A COPY OF
SUCH OPTION PLAN IS AVAILABLE UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL
EXECUTIVE OFFICES.



            (e) The Company’s rights under this Section 7 shall terminate upon the consummation of a
Qualifying Public Offering



      8. Consent to Approved Sale.



      If the Board and the holders of a majority of the Common Stock then outstanding approve the
Sale of the Company to an independent third party (the “Approved Sale”), you shall consent
to and raise no objections against the Approved Sale, and if the Approved Sale is structured as a
sale of capital stock, you shall agree to sell all of your Option Shares and rights to acquire
Option Shares on the terms and conditions approved by the Board of Directors and the holders of a
majority of the Common Stock then outstanding. You shall take all necessary and desirable actions
in connection with the consummation of the Approved Sale. For purposes of this Section 8, an
“independent third party” is any person who does not own in excess of 5% of the Common Stock on a
fully-diluted basis, who is not controlling, controlled by or under common control with any such 5%
owner of the Common Stock and who is not the spouse, ancestor, descendant (by birth or adoption) or
descendent of a grandparent of any such 5% owner of the Common Stock. If the Company or the
holders of the Company’s securities enter into any negotiation or transaction for which Rule 506
(or any similar rule then in effect) promulgated pursuant to the Securities Act may be available
with respect to such negotiation or transaction (including a merger, consolidation or other
reorganization), you shall, at the request of the Company, appoint a purchaser representative (as
such term is defined in Rule 501 promulgated



7









 





pursuant to the Securities Act) reasonably acceptable to the Company. If you appoint the
purchaser representative designated by the Company, the Company will pay the fees of such purchaser
representative, but if you decline to appoint the purchaser representative designated by the
Company you shall appoint another purchaser representative (reasonably acceptable to the Company),
and you shall be responsible for the fees of the purchaser representative so appointed.



      9. Adjustments.



      In the event that, by reason of any merger, consolidation, combination, liquidation,
reorganization, recapitalization, stock dividend, stock split, split-up, split-off, spin-off,
combination of shares, exchange of shares or other like change in capital structure of the Company
(collectively, a “Reorganization”), the Common Stock is substituted, combined, or changed
into any cash, property, or other securities, or the shares of Common Stock are changed into a
greater or lesser number of shares of Common Stock, the number and/or kind of shares and/or
interests subject to an Option and the per share price or value thereof shall be appropriately
adjusted by the Committee to give appropriate effect to such Reorganization. Any fractional shares
or interests resulting from such adjustment shall be eliminated.



      10. Miscellaneous.



            (a) This Option Agreement is subject to all the terms, conditions, limitations and
restrictions contained in the Plan, provided, however, that the express terms and provisions of
this Option Agreement are intended to modify certain terms and provisions of the Plan. In the
event of any conflict or inconsistency between the express terms and provisions of this Option
Agreement and the terms of the Plan, the terms of this Option Agreement shall be controlling.



            (b) This Option Agreement is not a contract of employment and the terms of your employment
shall not be affected by, or construed to be affected by, this Option Agreement, except to the
extent specifically provided herein. Nothing herein shall impose, or be construed as imposing, any
obligation (i) on the part of the Company or any Related Entity to continue your employment, or
(ii) on your part to remain in the employ of the Company or any Related Entity.



            (c) Unless the managing underwriter otherwise agrees, in connection with any Qualifying Public
Offering or subsequent underwritten public offering of equity securities of the Company, you agree
not to effect any public sale or private offer or distribution of any shares of Common Stock during
the ten business days prior to the effectiveness under the Securities Act of the registration
statement filed in respect of such offering and during such time period after the effectiveness
under the Securities Act of such registration statement (not to exceed 180 days) (except if
applicable as part of such offering) as the Company and the managing underwriter may agree.



            (d) You shall not have any of the rights of a stockholder with respect to the shares of Common
Stock underlying the Option until the Option is exercised and you receive such shares.



            (e) For purposes of this Option Agreement, the following terms shall have the respective
meanings indicated:



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      (i) “CAGCO Group” shall mean CAGCO and its Subsidiaries.




      (ii) “Change of Control” shall mean the first to occur of the following events: (i) any
sale, lease, exchange, or other transfer (in one transaction or series of related
transactions) of all or substantially all of the assets of the Company to any Person or
group of related Persons for purposes of Section 13(d) of the Exchange Act, other than one
or more members of the HMC Group, (ii) a majority of the Board of Directors of the Company
shall consist of Persons who are not Continuing Directors; or (iii) the acquisition after
the date of acceptance of this Plan by any Person or Group (other than one or more members
of the HMC Group or the CAGCO Group) of the power, directly or indirectly, to vote or direct
the voting of securities having more than 50% of the ordinary voting power for the election
of directors of the Company.




      (iii) “Designated Date” shall mean the first date on which the Company shall have
consummated a Qualifying Public Offering.



            (f) This Option Agreement may be amended as provided in Section 19 of the Plan.



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9









 








      Please indicate your acceptance of all the terms and conditions of the Option and the Plan by
signing and returning a copy of this Option Agreement.



	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 
	 	 	SWIFT FOODS COMPANY
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Danny L. Herron
	 

	 	 	 	 
	 	 	Name: Danny L. Herron
	 	 	Title: EVP and CFO
	 
	 	 	 	 
	ACCEPTED:
	 	 	 	 
	 
	 	 	 	 
	/s/ John Simons
	 	 	 	 
	 

John Simons

	 	 	 	 
	 
	 	 	 	 
	###-##-####
	 	 	 	 
	 

Employee Social Security Number or

	 	 	 	 
	Taxpayer Identification Number
	 	 	 	 
	 
	 	 	 	 
	Date: October 2, 2002