As filed with the Securities and Exchange Commission on March 31, 1994
Registration Statement No. 33-52649 and
No. 33-52649-01
---------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________
PRE-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
________________________
ConAgra, Inc. ConAgra Capital, L.C.
(Exact name of registrant (Exact name of coregistrant
as specified in its charter) as specified in its charter)
Delaware Iowa
(State or other jurisdiction of (State of other jurisdiction of
incorporation or organization) incorporation or organization)
47-0248710 Applied For
(I.R.S. Employer (I.R.S. Employer
Identification No.) Identification No.)
One ConAgra Drive
Omaha, Nebraska 68102-5001
(402) 595-4000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Stephen L. Key
Executive Vice President and Chief Financial Officer
ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102-5001
(402) 595-4000
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
______________________
Copies to:
David L. Hefflinger John M. Brandow
McGrath, North, Mullin & Kratz, P.C. Davis Polk & Wardwell
Suite 1400 450 Lexington Avenue
One Central Park Plaza New York, NY 10017
Omaha, NE 68102
SUBJECT TO COMPLETION DATED APRIL __, 1994
PROSPECTUS SUPPLEMENT
(To Prospectus Dated April , 1994)
________ Preferred Securities
[ConAgra logo]
ConAgra Capital, L.C.
___% Series A Cumulative Preferred Securities
(liquidation preference $25 per security)
guaranteed on a subordinated basis
to the extent set forth herein by
ConAgra, Inc.
-------------
The % Series A Cumulative Preferred Securities (the "Series A
Preferred Securities") offered hereby are being issued by ConAgra Capital,
L.C., a limited liability company organized under the laws of Iowa
("ConAgra Capital" or the "Company"). ConAgra Capital is an
indirectly wholly-owned finance subsidiary of ConAgra, Inc. ("ConAgra").
The payment of dividends, if and to the extent declared out of moneys
held by ConAgra Capital and legally available therefor, and payments on
liquidation or redemption with respect to the Series A Preferred Securities
are guaranteed on a subordinated basis by ConAgra to the extent described
herein. The Series A Preferred Securities will entitle holders to receive
cumulative preferential cash dividends, at an annual rate of _______% of
the liquidation preference of $25 per security, accruing from
________________, 1994, and payable monthly in arrears on the last day of
each calendar month of each year, commencing _______________, 1994.
The Series A Preferred Securities are redeemable, at the option of
ConAgra Capital (with ConAgra's consent), in whole or in part, from time to
time, on or after ____________, 1999 at $25 per security plus accumulated
and unpaid dividends to the date fixed for redemption (the "Applicable
Price"), and will be redeemed at such price from the proceeds of any
permanent repayment of ConAgra Capital's loan to ConAgra of the proceeds
from the sale of the Series A Preferred Securities offered hereby. ConAgra
may at any time after a Tax Event (as defined herein) cause ConAgra Capital
(i) to exchange the Series A Preferred Securities for Series A Debentures
having an aggregate principal amount and accrued and unpaid interest equal
to the Applicable Price and an interest rate thereon equal to the dividend
rate on the Series A Preferred Securities or (ii) in certain circumstances
relating to the non-deductibility of interest on the Series A Debentures,
to redeem the Series A Preferred Securities at the Applicable Price. If
the Series A Preferred Securities are exchanged for Series A Debentures,
ConAgra has agreed to use its best efforts to have the Series A Debentures
listed on the same exchange on which the Series A Preferred Securities are
listed. See "Certain Terms of the Series A Preferred Securities" and
"Description of the Preferred Securities--Redemption".
In the event of the liquidation of ConAgra Capital, holders of Series
A Preferred Securities then outstanding will be entitled to receive for
each such Preferred Security a liquidation preference of $25 plus
accumulated and unpaid dividends to the date of payment, subject to certain
limitations. Prior to , 1999, payment of such liquidation
preference shall be made by distributing to each holder of Series A
Preferred Securities one or more Series A Debentures having an aggregate
principal amount and accrued and unpaid interest equal to such liquidation
preference. See "Certain Terms of the Series A Preferred Securities" and
"Description of the Preferred Securities - Liquidation Distribution".
For a description of the various contractual backup undertakings of
ConAgra relating to the Preferred Securities, see "Description of the
Preferred Securities - Miscellaneous", "Description of the Guarantee",
"Certain Terms of the Series A Debentures" and "Description of the
Debentures" herein.
The Series A Preferred Securities have been approved for listing on
the New York Stock Exchange, subject to official notice of issuance.
________________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT
OR THE ACCOMPANYING PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
Underwriting
Price to Discounts and Proceeds to
Public (1) Commissions (2) Company
(1)(3)(4)
<S> <C> <C> <C>
Per Preferred $25.00 (3) $25.00
Security ...
Total (4)(5) $___________ (3) $_____________
.............
<FN>
(1) Plus accrued dividends, if any, from ____________,
1994.
(2) ConAgra Capital and ConAgra have agreed to indemnify the
several Underwriters against certain liabilities, including
liabilities under the Securities Act of 1933, as amended.
See "Underwriting".
(3) Because the proceeds of the sale of the Series A Preferred
Securities will be loaned to ConAgra, ConAgra has agreed to
pay to the Underwriters as compensation ("Underwriters'
Compensation") for their arranging the loan of such proceeds
$____________ per Series A Preferred Security (or
$______________ in the aggregate); provided that such
compensation will be $_________ per Series A Preferred
Security sold to certain institutions. Therefore, to the
extent that Series A Preferred Securities are sold to such
institutions, the actual amount of Underwriters'
Compensation will be less than the amount specified in the
preceding sentence. See "Underwriting".
(4) Expenses of the offering, which are payable by ConAgra, are
estimated to be $_________________.
(5) ConAgra Capital has granted the Underwriters an
option to purchase up to additional Series A
Preferred Securities on the same terms and conditions as
set forth above solely to cover over-allotments, if
any. If such option is exercised in full, the
total Price to Public, Underwriters' Compensation and
Proceeds to ConAgra Capital will be $ , $
, and $ , respectively. See "Underwriting"
</TABLE>
-------------
The Series A Preferred Securities offered by this Prospectus
Supplement are offered by the Underwriters subject to prior sale,
withdrawal, cancellation or modification of the offer without
notice, to delivery to and acceptance by the Underwriters and to
certain further conditions. It is expected that delivery of
certificates for the Preferred Securities will be made only in
book-entry form through the facilities of The Depository Trust
Company on or about , 1994.
-------------
Smith Barney Shearson Inc. Merrill Lynch & Co.
Bear, Stearns & Co. Inc.
Dean Witter Reynolds Inc.
A.G. Edwards & Sons, Inc.
Goldman, Sachs & Co.
Lehman Brothers
Morgan Stanley & Co. Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
Salomon Brothers Inc
, 1994
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-
ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE
MARKET PRICE OF THE SERIES A PREFERRED SECURITIES OFFERED HEREBY
AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK
EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
CONAGRA
ConAgra is a diversified food company operating across the
food chain in three industry segments: Agri-Products, Trading &
Processing, and Prepared Foods.
In the Agri-Products segment, ConAgra is a leading
distributor of crop protection chemicals. ConAgra also
formulates pesticides, produces animal health care products and
markets animal health care products by direct mail. ConAgra is a
producer of formula feed and feed additives; a distributor,
merchandiser, and marketer of fertilizer; and a specialty
retailer with over 200 farm stores and fabric and crafts stores
located principally in agricultural areas.
In the Trading & Processing segment, ConAgra is a leading
U.S. flour miller. ConAgra also mills oats and dry corn;
manufactures brewers malt; packages private label flour, corn
meal, and mixes; markets specialty food ingredients; and
merchandises feed ingredients. ConAgra is a worldwide trader of
grain, oilseeds, fertilizer, edible beans and peas, sulfur, wool
and other commodities. ConAgra has processing and/or trading
operations in Canada, Australia, Europe, Asia and Latin America
as well as in the U.S.
In the Prepared Foods segment, ConAgra is a leading producer
and marketer of frozen prepared foods, shelf-stable prepared
foods, fresh red meats, branded processed red meats, chicken and
turkey products, seafood products, cheese and other dairy
products and potato products. ConAgra markets steaks and other
premium food products by direct mail and manufactures and markets
pet accessories and home sewing products. ConAgra's prepared
food brands include Armour, Chun King Frozen, Banquet, Healthy
Choice, Kid Cuisine, Country Pride, Country Skillet, Monfort,
Pfaelzer, Longmont, Morton, Patio, Taste O'Sea, Decker, Armour
Classics, Golden Star, Webber Farms, World's Fare, Cook's,
Singleton, Hunt's, Wesson, Manwich, Orville Redenbacher's, Peter
Pan, Snack Pack, Swiss Miss, La Choy, Rosarita, Gebhardt,
Butterball, Swift Premium, Eckrich, Treasure Cave, County Line,
Reddi-Wip and Act II.
CONAGRA CAPITAL , L.C.
ConAgra Capital, an indirectly wholly-owned finance
subsidiary of ConAgra, is a limited liability company organized
under the laws of Iowa. ConAgra Capital's principal executive
offices are presently located at One ConAgra Drive, Omaha,
Nebraska 68102-5001, telephone (402) 595-4000. The principal
executive offices of the Managing Members (as defined in the
Prospectus) of ConAgra Capital are presently located at One
ConAgra Drive, Omaha, Nebraska 68102-5001, telephone (402) 595-
4000. ConAgra indirectly owns all of the common interests
("Common Securities") of ConAgra Capital, which Common Securities
are nontransferable. The ConAgra subsidiaries that hold the
Common Securities have unlimited liability for the debts,
obligations and liabilities of ConAgra Capital. ConAgra Capital
exists solely for the purpose of issuing preferred and common
securities and lending the proceeds from the issuance thereof to
ConAgra.
Financial statements of ConAgra Capital will be made
available to the holders of the Series A Preferred Securities as
soon as practicable after the end of ConAgra Capital's fiscal
year.
CERTAIN INVESTMENT CONSIDERATIONS
Prospective purchasers of Series A Preferred Securities
should carefully review the information contained elsewhere in
this Prospectus Supplement and in the Prospectus and should
particularly consider the following matters:
ConAgra's obligations under the Guarantee are
subordinate and junior in right of payment to all other
liabilities of ConAgra and its obligations under the
Subordinated Indenture are subordinate and junior in right
of payment to all Senior Indebtedness (as defined) of
ConAgra. As of November 28, 1993, ConAgra had approximately
$5,036.2 million of Senior Indebtedness outstanding
(inclusive of current installments and short-term notes
payable). See "Description of the Guarantee -- Status of
the Guarantee" and "Description of the Debentures --
Subordination" in the Prospectus.
ConAgra has the right under the Series A Debentures to
extend interest payment periods for up to 18 months, and, as
a consequence, monthly dividends on the Series A Preferred
Securities can be deferred by ConAgra Capital (but will
continue to accumulate) during any such extended interest
payment period. If ConAgra exercises this right, ConAgra
may not declare dividends on any shares of its preferred or
common stock, and therefore, the extension of a payment
period is, in the view of the ConAgra Capital and ConAgra,
remote. See "Description of the Debentures -- Interest" in
the Prospectus. In addition, if ConAgra Capital fails
to pay dividends on the Series A Preferred Securities for 18
consecutive monthly dividend periods, the holders of a
majority of the Series A Preferred Securities, together with
the holders of any other preferred securities in ConAgra
Capital having the right to vote for the appointment of a
trustee in such event, acting as a single class, will be
entitled to appoint a trustee to enforce ConAgra Capital's
rights under the Series A Debentures against ConAgra,
enforce ConAgra's obligations under the Guarantee and pay
dividends on the Series A Preferred Securities. See
"Description of Preferred Securities -- Voting Rights" in
the Prospectus.
Should an extended interest payment period occur,
beneficial owners of Series A Preferred Securities will be
required to include interest accruing on the Series A
Debentures in gross income for U.S. federal income tax
purposes in advance of the receipt of cash, and any
beneficial owners who dispose of Series A Preferred
Securities prior to the record date for payment of dividends
following such period will have included such interest in
gross income but will not receive cash related thereto from
ConAgra Capital or ConAgra. See "Certain United States
Federal Income Tax Consequences -- Potential Extension of
Payment Period" in the Prospectus.
SELECTED FINANCIAL DATA OF CONAGRA
The financial information set forth below has been derived
from the audited and unaudited consolidated financial statements
of ConAgra. The information should be read in connection with,
and is qualified in its entirety by reference to, ConAgra's
financial statements and notes thereto incorporated by reference
herein. The interim data reflect all adjustments, consisting of
only normal recurring adjustments, which, in the opinion of the
management of ConAgra, are necessary to present fairly such
information for the interim periods. The results of operations
for the six month periods presented are not necessarily
indicative of the results expected for a full year or any other
interim period.
<TABLE>
<CAPTION>
Six Months Ended For the Fiscal Year Ended
November May
1993 1992 1993 1992 1991(1)
(amounts in millions, except ratio data)
<S> <C> <C> <C> <C> <C>
Income statement
data:
Net sales $12,042.5 $11,080.4 $21,519.1 $21,219.0 $20,177.4
Costs of goods sold 10,555.5 9,622.5 18,640.4 18,195.0 17,449.0
Selling,
administrative & 1,026.9 1,006.6 2,014.3 2,136.3 1,874.9
general expense
Interest expense 127.6 142.3 258.4 317.5 309.8
Equity in earnings 3.5 25.4 17.5 13.0
of affiliates 14.2
Income before
income taxes and
cumulative effect 336.0 323.2 631.4 587.7 556.7
of accounting
change
Income taxes 134.4 125.9 239.9 215.3 224.7
Net income before
cumulative effect 201.6 197.3 391.5 372.4 332.0
of accounting
change
Cumulative effect
of accounting - (121.2) (121.2) - -
change(2)
Net income 201.6 76.1 270.3 372.4 332.0
Less preferred 12.0 12.0 24.0 24.5 19.5
dividends
Net income
available to common $ 189.6 $ 64.1 $ 246.3 $ 347.9 $ 312.5
stock
Balance sheet data
at period end:
Cash and cash $ 75.3 $ 146.7 $ 257.0 $ 354.8 $721.9
equivalents
Working capital 162.3 478.0 214.1 289.9 352.2
Property, plant and 2,492.5 2,278.8 2,388.2 2,276.8 2,215.4
equipment, net
Total assets 11,974.3 11,292.5 9,988.7 9,758.7 9,852.4
Short-term notes
payable and current 2,912.3 2,316.6 710.1 390.3 810.6
installments of
long-term debt
Senior long-term 1,357.9 1,576.4 1,393.2 1,694.4 1,886.8
debt
Subordinated debt 766.0 730.0 766.0 430.0 430.0
Preferred shares
subject to mandatory 355.9 355.9 355.9 356.0 356.1
redemption
Common 2,057.0 2,146.5 2,054.5 2,232.3 1,933.2
stockholders' equity
Other data:
Capital $ 155.9 $ 133.4 $ 341.0 $ 369.6 $ 414.9
expenditures
Depreciation and 185.3 171.3 348.7 319.3 285.2
amortization
Ratio of earnings
to combined fixed 2.7x 2.5x 2.5x 2.2x 2.2x
charges and
preferred stock
dividends
<FN>
(1) In August 1990 Beatrice Company became a wholly-owned subsidiary of
ConAgra.
(2) One-time cumulative effect of change in accounting for nonpension
postretirement benefits.
</TABLE>
RECENT DEVELOPMENTS
On March 22, 1994, ConAgra, Inc. reported record earnings
for fiscal year 1994's third quarter and first nine months ended
February 27, 1994.
Fiscal 1994 third quarter earnings per share rose 16 percent
to 43 cents from 37 cents in last year's third quarter. Net
income was up 14 percent to $103.7 million from $91.1 million.
Pretax earnings increased 21 percent to $171.1 million from
$141.4 million. Net sales gained 10 percent to $5.58 billion
from $5.06 billion.
Fiscal 1994 nine month earnings per share grew 9 percent to
$1.26 from $1.16 in last year's first nine months. Net income
increased 6 percent to $305.3 million from $288.4 million.
Pretax earnings rose 9 percent to $507.1 million from $464.6
million. Net sales were up 9 percent to $17.62 billion from
$16.14 billion. The fiscal 1993 nine month figures exclude the
one-time cumulative effect of a required accounting change.
In ConAgra's largest industry segment, prepared foods,
operating profit increased in fiscal 1994's third quarter and was
up in the first nine months of the year.
The consumer frozen foods business registered third quarter
and nine month earnings growth highlighted by unit volume gains
and profit improvement in the Healthy Choice product line.
Helped by good unit volume growth in the third quarter, Hunt-
Wesson's operating profit increased in the quarter and first nine
months.
Branded packaged meats operating profit rose in the third
quarter and was ahead of last year through the first nine months.
The diversified products businesses posted third quarter and nine
month earnings gains, led by profit growth in the Lamb-Weston
potato processing business.
Improvement in pork and beef products margins pushed fresh
red meat third quarter operating profit ahead of last year's
depressed results; nine month earnings were also up.
Operating profit was down in chicken and turkey products in
the third quarter. Through nine months, total poultry products
operating profit was up modestly as strong first half results in
chicken products more than offset a downturn in turkey products.
In ConAgra's trading and processing industry segment,
operating profit decreased slightly in the third quarter and was
down through nine months. Grain processing operating profit
increased in both periods. Operating profit in the trading
businesses and offshore operating businesses was down in both
periods.
In ConAgra's agri-products segment, operating profit
decreased in the third quarter and first nine months. The
largest agri-products business, crop protection chemicals,
increased third quarter operating profit, was down slightly
through nine months and is expected to be up for the full year.
Fertilizer operating profit was up slightly in both periods, and
specialty retailing earnings were down in both periods.
ConAgra increased its interest in Australia Meat Holdings
Pty Ltd. (AMH) from 50 percent to approximately 90 percent
effective as of the beginning of fiscal year 1994. Consolidating
AMH's results contributed to the third quarter and nine month
drop in equity in earnings of affiliates versus fiscal 1993 when
ConAgra's share of AMH's earnings was included in equity in
earnings of affiliates. AMH also was a major source of the net
sales increase in fiscal 1994's third quarter and first nine
months and a contributor to nine month operating profit growth.
Lower equity in earnings of affiliates also was a cause of
the increase in ConAgra's nine month effective tax rate from 37.9
percent in fiscal 1993 to 39.8 percent in fiscal 1994. Weighted
average shares outstanding decreased in fiscal 1994's third
quarter and first nine months as a consequence of share
repurchase programs last year and this year.
ConAgra adopted statement of financial accounting standards
No. 106 in fiscal 1993. Adopting the standard caused a non-cash
one-time cumulative adjustment of $121.2 million after tax or 52
cents per share applied to fiscal 1993's first quarter.
Including the adjustment, fiscal 1993 nine month net income and
earnings per share were $167.2 million and 64 cents.
USE OF PROCEEDS
Based on the offering price of $25.00 per Series A Preferred
Security, the proceeds from the offering (prior to deducting
Underwriters' Compensation and estimated expenses) will be
$___________ ($___________ if the overallotment option is
exercised in full). The proceeds from the sale of the Series A
Preferred Securities will be loaned to ConAgra to be used for
general corporate purposes, including the reduction of
outstanding borrowings under short-term credit facilities.
Accordingly, ConAgra has agreed to pay the Underwriters'
Compensation to the Underwriters, as set forth in Note (3) on the
cover page of this Prospectus Supplement.
CAPITALIZATION
The following table sets forth the unaudited summary of
short-term obligations and capitalization of ConAgra and its
consolidated subsidiaries at November 28, 1993 and as adjusted to
give effect to the sale of the Series A Preferred Securities
offered hereby and the application of the proceeds therefrom as
described under "Use of Proceeds" herein. The table should be
read in conjunction with ConAgra's consolidated financial
statements and notes thereto and other financial data
incorporated by reference herein. See "Incorporation of Certain
Documents by Reference" in the accompanying Prospectus.
November 28, 1993
____________________________
Actual As Adjusted
(in millions)
Short-term obligations
(including notes payable
and current installments
of long-term debt) ........ $2,912.3 $
-------- --------
-------- --------
Senior long-term debt
(excluding current
installments) ............. $1,357.9 $1,357.9
Subordinated debt .......... 766.0 766.0
Preferred securities of
consolidated subsidiary ... -0-
Preferred shares subject to
mandatory redemption ...... 355.9 355.9
Common stockholders' equity. 2,057.0 2,057.0
-------- --------
Total capitalization . $4,536.8 $
-------- --------
-------- --------
CERTAIN TERMS OF THE SERIES A PREFERRED SECURITIES
General
The following summary of certain terms and provisions of the
Series A Preferred Securities supplements the description of
certain terms and provisions of the Preferred Securities of any
series set forth in the accompanying Prospectus under the heading
"Description of Preferred Securities," to which description
reference is hereby made. Capitalized terms (and the term
"dividends") used in this Prospectus Supplement shall have the
meanings ascribed to them in the Prospectus unless otherwise
defined in this Prospectus Supplement. The Series A Preferred
Securities constitute a series of Preferred Securities in ConAgra
Capital, which Preferred Securities may be issued from time to
time in one or more series with such designations, dividend
rights, liquidation value per security, redemption provisions,
voting rights and other rights, preferences, privileges,
limitations and restrictions as are established by the Articles
of Organization of ConAgra Capital (the "Certificate"), the
Operating Agreement of ConAgra Capital (the "Agreement") and
written action (the "Resolutions") adopted, or to be
adopted, by the Subsidiaries, in their capacity as holders of all
of ConAgra Capital's common interests (the "Managing Members").
The summary of certain terms and provisions of the Series A
Preferred Securities set forth below does not purport to be
complete and is subject to, and qualified in its entirety by
reference to, the Certificate, the Agreement and the Resolutions
adopted by the Managing Members establishing the rights,
preferences, privileges, limitations and restrictions relating to
the Series A Preferred Securities. References to the
Resolutions are qualified in their entirety by reference to the
text of the Resolutions, which will be substantially in the form
filed as an exhibit to the Registration Statement of which this
Prospectus Supplement forms a part.
Dividends
Dividends on the Series A Preferred Securities will be
cumulative, will accrue from _________________, 1994 and will be
payable monthly in arrears on the last day of each calendar month
of each year, commencing , 1994, when, as and if declared
by the Managing Members, except as otherwise described under
"Description of Preferred Securities -- Dividends" in the
accompanying Prospectus, to holders of record on the Business Day
immediately preceding the relevant payment date. ConAgra Capital
may only pay dividends on the Series A Preferred Securities to
the extent it has funds legally available to make such payments.
See "Description of Preferred Securities -- Dividends" in the
accompanying Prospectus.
The dividend payable on each Series A Preferred Security
will be fixed at a rate per annum of % of the stated
liquidation preference thereof.
Liquidation Preference
The stated liquidation preference of the Series A Preferred
Securities is $25 per security.
Redemption or Exchange
The Series A Preferred Securities are not redeemable, except
as described below or as described in the accompanying
Prospectus.
The Series A Preferred Securities are redeemable, at the
option of ConAgra Capital and subject to the prior consent of
ConAgra, in whole or in part, from time to time, on or after
, 1999, upon not less than 30 nor more than 60 days' notice, at
the redemption price of $25 per interest, plus accumulated and
unpaid dividends (whether or not declared) to the date fixed for
redemption.
Furthermore, ConAgra shall have the right to cause ConAgra
Capital at any time, upon not less than 30 nor more than 60 days'
notice, to redeem the Series A Preferred Securities at the
Applicable Price if ConAgra and ConAgra Capital have been
advised by independent nationally recognized legal counsel that,
as a result of any Tax Event as described in the
following paragraph, there exists more than an insubstantial
risk that ConAgra would be precluded from deducting the interest
on the Series A Debentures for federal income tax purposes even
if the Series A Preferred Securities were exchanged for the
Series A Debentures as described in the following paragraph.
In addition, ConAgra may cause ConAgra Capital at any time,
upon not less than 30 nor more than 60 days' notice, to exchange
the Series A Preferred Securities for Series A Debentures having
an aggregate principal amount and accrued and unpaid interest
equal to the Applicable Price and interest rate thereon equal to
the dividend rate on the Series A Preferred Securities if ConAgra
and ConAgra Capital have been advised by independent nationally
recognized legal counsel that, as a result of any change after
the date of the Prospectus Supplement in U.S. law (including the
enactment or imminent enactment of any legislation, the
publication of any judicial decisions or regulatory rulings or a
change in the official position or in the interpretation of law
or regulations) (a "Tax Event"), there exists more than
an insubstantial risk that (i) ConAgra will be precluded from
deducting the interest on the Series A Debentures for federal
income tax purposes or (ii) ConAgra Capital is subject to federal
income tax with respect to the interest received on the Series A
Debentures.
After the date fixed for any such exchange, (i) the Series A
Preferred Securities will no longer be deemed to be outstanding,
(ii) DTC or its nominee, as the record holder of the Series A
Preferred Securities, will exchange the global certificate or
certificates representing the Series A Preferred Securities for a
registered global certificate or certificates representing the
Series A Debentures to be delivered upon such exchange and (iii)
any certificates representing Series A Preferred Securities not
held by DTC or its nominee will be deemed to represent Series A
Debentures having a principal amount equal to the stated
liquidation preference of such Series A Preferred Securities
until such certificates are presented to ConAgra Capital or its
agent for exchange.
CERTAIN TERMS OF THE SERIES A DEBENTURES
General
The following summary of certain terms and provisions of the
Debentures relating to the Series A Preferred Securities (the
"Series A Debentures") supplements the description of certain
terms and provisions of the Debentures set forth in the
accompanying Prospectus under the heading "Description of the
Debentures," to which description reference is hereby made.
Pursuant to the to the Subordinated Indenture and a
supplemental indenture thereto, ConAgra will issue Series A
Debentures to ConAgra Capital in an aggregate principal amount
equal to $ , such amount being equal to the aggregate
stated liquidation preference of $25 per Series A Preferred
Security issued and sold by ConAgra Capital and the proceeds from
the issuance of ConAgra Capital's Common Securities and related
capital contributions (the "Common Interest Payments"). In the
event that the Underwriters' over-allotment option is exercised,
ConAgra will agree to issue additional Series A Debentures to
ConAgra Capital equal to the aggregate stated liquidation
preference of the Series A Preferred Securities so sold plus the
related Common Interest Payments. If the Underwriters' over-
allotment option is exercised in full, such additional Series A
Debentures will equal $ .
The entire principal amount of the Series A Debentures will
become due and payable, together with any accrued and unpaid
interest thereon, including Additional Interest, if any, on the
earlier of , 2043 (subject to ConAgra's
right to prepay the Series A Debentures in certain
circumstances relating to the non-deductibility of interest on
the Series A Debentures, exchange the Series A Debentures
for new debentures or reborrow the proceeds from the repayment of
the Series A Debentures upon the terms and subject to the
conditions set forth under "Description of Preferred Securities -
- Redemption" in the accompanying Prospectus) or the date upon
which ConAgra Capital is dissolved, wound up or
liquidated. Upon any exchange of the Series A Preferred
Securities for Series A Debentures, (i) the Series A Debentures
will no longer be subject to mandatory prepayment upon the
dissolution, winding up or liquidation of ConAgra Capital, (ii)
the Series A Debentures will not be subject to an election by
ConAgra to exchange the Series A Debentures for new debentures or
to repay the Series A Debentures and reborrow the proceeds from
such repayment, (iii) ConAgra will use its best efforts to have
the Series A Debentures listed on the same exchange on which the
Series A Preferred Securities are listed, (iv) the Subordinated
Indenture or Series A Debentures may, thereafter, be modified or
amended with the consent of the holders of not less than 66 2/3%
in principal amount of the Debentures at the time
outstanding ; provided, however, that no such modification
or amendment may, without the consent of the holder or each
Debenture affected thereby, (a) extend the stated maturity of the
principal of any Debenture, or reduce the principal amount
thereof or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption
thereof or change the currency in which the principal thereof or
interest thereon is payable or impair the right to institute suit
for the enforcement of any payment on any Debenture when due or
(b) reduce the aforesaid percentage in principal amount of
Debentures of any series the consent of the holders of which is
required for any such modification, (v) ConAgra's obligation to
pay Additional Interest (other than Additional Interest, if any,
accrued and unpaid to such date of exchange) shall cease, and
(vi) the provisions described under "Description of the
Indentures--Events of Default" rather than those described under
"Description of Debentures--Events of Default" shall apply.
Prepayment
The Series A Debentures may not be prepaid, except as
described below or as described in the accompanying Prospectus.
The Series A Debentures may be prepaid at the option of ConAgra,
without premium or penalty, in whole or in part (together with
accrued but unpaid interest, including Additional Interest, if
any, on the portion being prepaid) at any time on or after
, 1999 or earlier in certain circumstances relating to the
non-deductibility of interest on the Series A Debentures.
Interest
The Series A Debentures will bear interest at an annual rate
equal to % from _______________, 1994, until maturity. Such
interest will be payable on the last day of each calendar month
of each year, commencing , 1994.
Registrar, Transfer Agent and Paying Agent
Chemical Bank will act as registrar, transfer agent and
paying agent of the Series A Preferred Securities.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
THE FOLLOWING DISCUSSION SUPPLEMENTS THE DISCUSSION
CONTAINED IN THE PROSPECTUS UNDER THE HEADING "CERTAIN UNITED
STATES FEDERAL INCOME TAX CONSEQUENCES," WHICH DISCUSSION IS
HEREBY INCORPORATED BY THIS REFERENCE AND SHOULD BE READ IN
CONJUNCTION HEREWITH. UNLESS OTHERWISE INDICATED, THIS SUMMARY
DEALS ONLY WITH INITIAL HOLDERS WHO PURCHASE THE PREFERRED
SECURITIES AT THE ORIGINAL OFFERING PRICE.
Exchange of the Preferred Securities for Debentures of
ConAgra
Under certain circumstances as fully described under the
caption "Certain Terms of the Series A Preferred Securities--
Redemption or Exchange" in this Prospectus Supplement, ConAgra
Capital may distribute the Series A Debentures in exchange for
the Series A Preferred Securities. Such an exchange will be
treated as a non-taxable exchange to each Securityholder and will
result in the Securityholder receiving an aggregate tax basis in
the Series A Debentures equal to such Securityholder's aggregate
tax basis in its Series A Preferred Securities. A
Securityholder's holding period in the Series A Debentures so
received in exchange for Series A Preferred Securities will
include the period for which the Series A Preferred Securities
were held by the Securityholder.
Potential Extension of Payment Period
Under the terms of the Series A Debentures, ConAgra may be
permitted to extend the interest payments period up to 18 months.
The interest payments on the Series A Debentures will, therefore,
be treated as "original issue discount" under Treasury
Regulations. Thus, after the exchange of Series A Preferred
Securities for Series A Debentures, holders of the Series A
Debentures will be required to include the interest on the Series
A Debentures in income as it accrues, in accordance with a
constant yield method based on a compounding of interest, before
the receipt of the interest. The holder's tax basis in the
Series A Debentures will be increased by accrued interest
previously included as income by the holder and reduced by the
payment of such interest.
Sale, Exchange or Retirement of the Series A Debentures
Upon the sale, exchange or retirement of a Series A
Debenture, a holder will recognize taxable gain or loss equal to
the difference between the amount realized on the sale, exchange
or retirement and such holder's adjusted tax basis in the Series
A Debenture. Subject to the discussion below concerning market
discount and bond premium, such gain or loss will be capital gain
or loss.
Market Discount and Bond Premium
Holders other than initial purchasers who acquire the Series
A Preferred Securities at the original offering price may be
considered to have acquired the Series A Debentures with market
discount, acquisition premium or amortizable bond premium. Such
holders are advised to consult their own tax advisors as to the
income tax consequences of the purchase, ownership and
disposition of the Series A Debentures.
United States Alien Holders
Under present United States federal income tax law:
(i) payments of principal or interest by ConAgra on the
Series A Debentures to any holder who or which is a United States
Alien Holder will not be subject to United States federal
withholding tax; provided that (a) the beneficial owner of the
Series A Debentures does not actually or constructively own 10%
or more of the total combined voting power of all classes of
stock of ConAgra entitled to vote, (b) the beneficial owner of
the Series A Debentures is not a controlled foreign corporation
that is related to ConAgra through stock ownership, and (c)
either (A) the beneficial owner of the Series A Debentures
certifies to ConAgra or its agent, under penalties of perjury,
that it is not a United States holder and provides its name and
address or (B) a securities clearing organization, bank or other
financial institution that holds customers' securities in the
ordinary course of its trade or business (a "Financial
Institution") and holds the Series A Debentures certifies to
ConAgra or its agent under penalties of perjury that such
statement has been received from the beneficial owner by it or by
a Financial Institution between it and the beneficial owner and
furnishes ConAgra or its agent with a copy thereof; and
(ii) a United States Alien Holder of a Series A Debenture
will not be subject to United States federal withholding tax on
any gain realized upon the sale or other disposition of Series A
Debentures.
UNDERWRITING
Under the terms and subject to the conditions of the
Underwriting Agreement dated , 1994, each Underwriter
named below has severally agreed to purchase from the Company,
and the Company has agreed to sell to such Underwriter, the
number of Series A Preferred Securities set forth opposite the
name of such Underwriter below.
Number of
Series A
Underwriters Preferred Securities
Smith Barney Shearson Inc. . . . . . . . .
Merrill Lynch, Pierce, Fenner & Smith
Incorporated . . . . . . . . . . . .
Bear, Stearns & Co. Inc. . . . . . . . . .
Dean Witter Reynolds Inc. . . . . . . . .
A.G. Edwards & Sons, Inc. . . . . . . . .
Goldman, Sachs & Co. . . . . . . . . . . .
Lehman Brothers Inc. . . . . . . . . . . .
Morgan Stanley & Co. Incorporated . . . .
PaineWebber Incorporated . . . . . . . . .
Prudential Securities Incorporated . . . .
Salomon Brothers Inc . . . . . . . . . . .
____________
Total . . . . . . . . . . . . .
============
The Underwriters are obligated to take and pay for the total
number of Series A Preferred Securities offered hereby (other
than those covered by the over-allotment option described below)
if any such Series A Preferred Securities are purchased. In the
event of default by any Underwriter, the Underwriting Agreement
provides that, in certain circumstances, purchase commitments of
the non-defaulting Underwriters may be increased or the
Underwriting Agreement may be terminated.
The Underwriters have advised the Company that they propose
initially to offer the Series A Preferred Securities to the
public at the Price to Public set forth on the cover page of this
Prospectus Supplement, and to certain dealers at a price that
represents a concession not in excess of $ per Series A
Preferred Security. The Underwriters may allow, and such dealers
may reallow, a concession not in excess of $ per Series A
Preferred Security to certain other dealers. After the Series A
Preferred Securities are released for sale to the public, the
public offering price and such concessions may be changed by the
Underwriters.
Because the proceeds of the sale of the Series A Preferred
Securities will be loaned to ConAgra, ConAgra has agreed to pay
to the Underwriters as compensation ("Underwriters'
Compensation") for their arranging the loan of such proceeds the
amount per Series A Preferred Security set forth on the cover
page of this Prospectus Supplement (subject to the proviso set
forth therein).
The Company has granted to the several Underwriters an
option to purchase up to additional Series A
Preferred Securities at the Price to Public plus accrued
dividends, if any, (with additional Underwriters' Compensation).
The Underwriters may exercise such option only to cover over-
allotments, if any, incurred in connection with the sale of the
Series A Preferred Securities offered hereby. Such option is
exercisable at any time on or prior to 12:00 noon, New York time,
on the business day prior to the record date for the first
distribution on the Series A Preferred Securities. To the extent
such option is exercised, each Underwriter will be obligated,
subject to certain conditions, to purchase approximately the same
percentage of such number of additional Series A Preferred
Securities as the number set forth next to such Underwriter's
name in the preceding table bears to the total number of Series A
Preferred Securities set forth in such table.
The Underwriters have in the past provided, and may in the
future provide, investment banking services to ConAgra, the
Company and certain of their affiliates.
The Underwriting Agreement provides that ConAgra and the
Company will indemnify the several Underwriters against certain
liabilities, including liabilities under the Securities Act of
1933, and to make certain contributions in respect thereof.
ConAgra and the Company have agreed, during the period
beginning on the date of the Underwriting Agreement and
continuing to and including the date 90 days after the closing
date for the purchase of the Series A Preferred Securities (or,
if later, the closing date for the purchase of the additional
Series A Preferred Securities referred to above), not to offer,
sell, contract to sell or otherwise dispose of any Series A
Preferred Securities, any preferred stock or any other securities
(including any backup undertakings) of ConAgra or any Preferred
Securities or any other securities of the Company, in each case
that are substantially similar to the Series A Preferred
Securities, or any securities convertible into or exchangeable
for the Series A Preferred Securities or such substantially
similar securities of either ConAgra or the Company, without the
prior written consent of Smith Barney Shearson Inc.
Prior to this offering, there has been no public market for
the Series A Preferred Securities. In order to meet one of the
requirements for listing the Series A Preferred Securities on the
New York Stock Exchange, the Underwriters will undertake to sell
lots of 100 or more Series A Preferred Securities to a minimum of
400 beneficial holders.
VALIDITY OF SECURITIES
The validity of the Series A Preferred Securities is being
passed upon for ConAgra and the Company by Dickinson, Mackaman,
Tyler & Hagen, P.C.
The validity of the Series A Debentures is being passed upon
for ConAgra and the Company by McGrath, North, Mullin & Kratz,
P.C.
Tax matters described under "Certain United States Federal
Income Tax Consequences" in this Prospectus Supplement is being
passed upon by Davis Polk & Wardwell.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR
AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES
HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION BUT
HAS NOT YET BECOME EFFECTIVE. THESE SECURITIES MAY NOT BE SOLD
NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE
REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL
NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER
TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY
STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL
PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
-----------------------------------------------------------------
SUBJECT TO COMPLETION, DATED APRIL __, 1994
PROSPECTUS [ConAgra Logo]
$450,000,000
CONAGRA CAPITAL, L.C.
Preferred Securities
and
CONAGRA, INC.
Debt Securities
______________________
ConAgra, Inc. ("ConAgra") from time to time may offer its
debt securities (the "Debt Securities"), at an aggregate initial
offering price not to exceed the equivalent of $450,000,000, in
separate series in amounts and prices and on terms to be
determined at the time of sale. The Debt Securities may be
denominated in U.S. dollars or in any other currency, including
composite currencies such as the European Currency Unit, as may
be designated by ConAgra (the "Specified Currency"). Debt
Securities may be sold for U.S. dollars or any other currency,
including composite currencies and the principal of and any
interest on Debt Securities may likewise be payable in U.S.
dollars, or in any other currency, including composite
currencies, in each case, as ConAgra specifically designates.
ConAgra Capital, L.C. ("ConAgra Capital"), an indirectly
wholly-owned finance subsidiary of ConAgra, may also offer from
time to time its preferred interests ("Preferred Securities"), in
one or more series, at an aggregate initial public offering price
not to exceed $450,000,000 at the time of sale. Any issue of
Preferred Securities shall correspondingly reduce the amount of
Debt Securities available for offer and sale hereunder. The
payment of distributions (herein referred to as "dividends"), if
and to the extent declared out of moneys held by ConAgra Capital
and legally available therefor, and to the extent funds are
legally available therefor payments on liquidation or redemption
with respect to the Preferred Securities are guaranteed on a
subordinated basis (the "Guarantee") by ConAgra to the extent set
forth herein. No portion of the dividends received by a holder
of the Preferred Securities will be eligible for the dividends
received deduction for federal income tax purposes. The
Guarantee will rank subordinate and junior in right of payment to
all other liabilities of ConAgra and pari passu to the most
senior preferred stock issued by ConAgra and senior to ConAgra's
common stock. See "ConAgra", "Description of Preferred
Securities--Miscellaneous," "Description of the Guarantee" and
"Description of the Debentures" for a description of the various
contractual backup obligations of ConAgra relating to the
Preferred Securities.
Specific terms of the securities in respect of which this
Prospectus is being delivered ("Offered Securities") will be set
forth in an accompanying Prospectus Supplement ("Prospectus
Supplement"), together with the terms of the offering of the
Offered Securities, the initial price thereof and the net
proceeds from the sale thereof. The Prospectus Supplement will
set forth with regard to the particular Offered Securities,
without limitation, the following: (i) in the case of Debt
Securities, the specific designation, aggregate principal amount,
authorized denomination, maturity, rate (which may be fixed or
variable) or method of calculation of interest and dates for
payment thereof, and any exchangeability, conversion, redemption,
prepayment or sinking fund provisions and any listing on a
securities exchange, and (ii) in the case of Preferred
Securities, the designation, number of shares or fractional
interests therein, liquidation preference per security, initial
public offering price, dividend rate (or method of calculation
thereof), dates on which dividends shall be payable and dates
from which dividends shall accrue, any voting rights, any
redemption or exchange provisions, any other rights, preferences,
privileges, limitations and restrictions relating to the
Preferred Securities of a specific series, the terms upon which
the proceeds of the sale of the Preferred Securities will be
loaned to ConAgra, and any listing on a securities exchange.
________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
_______________
The Offered Securities may be offered directly, through
agents designated from time to time, through dealers or through
underwriters. Such agents or underwriters may act alone or with
other agents or underwriters. See "Plan of Distribution". Any
such agents, dealers or underwriters are set forth in the
Prospectus Supplement. If an agent of ConAgra or a dealer or
underwriter is involved in the offering of the Offered
Securities, the agent's commission, dealer's purchase price,
underwriter's discount and net proceeds to ConAgra will be set
forth in, or may be calculated from, the Prospectus Supplement.
Any underwriters, dealers or agents participating in the offering
may be deemed "underwriters" within the meaning of the Securities
Act of 1933.
This Prospectus may not be used to consummate sales of
Offered Securities unless accompanied by a Prospectus Supplement.
_______________
Smith Barney Shearson Inc.
_______________
The date of this Prospectus is April __, 1994
IN CONNECTION WITH AN OFFERING, THE UNDERWRITERS FOR SUCH
OFFERING MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR
MAINTAIN THE MARKET PRICE OF THE OFFERED SECURITIES AT LEVELS
ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET.
SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE,
THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF
COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
No dealer, salesman or other person has been authorized to
give any information or to make any representation not contained
or incorporated by reference in this Prospectus or any Prospectus
Supplement, and, if given or made, such information or
representation must not be relied upon as having been authorized
by ConAgra, ConAgra Capital or by any underwriter, agent or
dealer. This Prospectus and any Prospectus Supplement shall not
constitute an offer to sell or a solicitation of an offer to buy
any of the securities offered hereby in any jurisdiction to any
person to whom it is unlawful to make such offer or solicitation
in such jurisdiction. Neither the delivery of this Prospectus
and any Prospectus Supplement nor any sale made thereunder shall,
under any circumstances, create any implication that the
information therein is correct as of any time subsequent to the
date thereof.
_______________
AVAILABLE INFORMATION
ConAgra is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and in accordance therewith files reports, proxy statements and
other information with the Securities and Exchange Commission
(the "Commission"). The registration statement of which this
Prospectus forms a part, as well as reports, proxy statements and
other information filed by ConAgra, may be inspected and copied
at the public reference facilities maintained by the Commission
at 450 Fifth Street, N.W., Washington, D.C. 20549 and at the
Commission's regional offices at 500 West Madison Street,
Chicago, Illinois 60661-2511 and 7 World Trade Center, New York,
New York 10048. Copies of such material can be obtained at
prescribed rates from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549.
Reports and other information herein and therein concerning
ConAgra can also be inspected at the office of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
This Prospectus constitutes a part of Registration Statement
on Form S-3 (together with all amendments and exhibits thereto,
the "Registration Statement") filed with the Commission under the
Securities Act of 1933 (the "Securities Act") with respect to the
Offered Securities. This Prospectus does not contain all of the
information set forth in such Registration Statement, certain
parts of which are omitted in accordance with the rules and
regulations of the Commission. Reference is made to such
Registration Statement and to the exhibits relating thereto for
further information with respect to ConAgra and the Offered
Securities. Any statements contained herein concerning the
provisions of any document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission or
incorporated by reference herein are not necessarily complete,
and in each instance reference is made to the copy of such
document so filed for a more complete description of the matter
involved. Each such statement is qualified in its entirety by
such reference.
No separate financial statements of ConAgra Capital have
been included herein. ConAgra and ConAgra Capital do not
consider that such financial statements would be material to
holders of Preferred Securities of ConAgra Capital because
ConAgra Capital is a newly organized special purpose entity, has
no operating history and no independent operations and is not
engaged in, and does not propose to engage in, any activity other
than the issuance of its securities and the lending of the
proceeds thereof to ConAgra. See "ConAgra Capital, L.C.".
ConAgra Capital is a limited liability company organized under
the laws of the state of Iowa and will be managed by certain
indirect wholly-owned subsidiaries of ConAgra, which subsidiaries
beneficially own all of ConAgra Capital's common securities,
which are non-transferable.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents, which have been filed with the
Commission, are hereby incorporated by reference:
1. Annual Report on Form 10-K of ConAgra for the fiscal year
ended May 30, 1993; and
2. Quarterly Reports on Form 10-Q of ConAgra for the fiscal
quarters ended August 29, 1993 and November 28, 1993.
All documents filed by ConAgra after the date of this
Prospectus pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, prior to the termination of the offering of the
Offered Securities offered hereby, shall be deemed to be
incorporated herein by reference and to be a part hereof from the
date of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in
any other subsequently filed document which also is or is deemed
to be incorporated by reference herein modifies or supersedes
such statement. Any such statements as modified or superseded
shall be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
ConAgra will provide without charge to each person to whom a
copy of this Prospectus is delivered, upon written or oral
request of such person, a copy of any or all of the documents
referred to above which have been or may be incorporated by
reference in this Prospectus (other than certain exhibits to such
documents). Requests for such documents may be made by writing
ConAgra, Inc., One ConAgra Drive, Omaha, Nebraska 68102-5001
(Attention: Corporate Communications Department) or by calling
(402) 595-4157.
THE COMPANY
ConAgra is a diversified food company operating across the
food chain in three industry segments: Agri-Products, Trading &
Processing, and Prepared Foods.
In the Agri-Products segment, ConAgra is a leading
distributor of crop protection chemicals. ConAgra also
formulates pesticides, produces animal health care products and
markets animal health care products by direct mail. ConAgra is a
producer of formula feed and feed additives; a distributor,
merchandiser, and marketer of fertilizer; and a specialty
retailer with over 200 farm stores and fabric and crafts stores
located principally in agricultural areas.
In the Trading & Processing segment, ConAgra is a leading
U.S. flour miller. ConAgra also mills oats and dry corn;
manufactures brewers malt; packages private label flour, corn
meal, and mixes; markets specialty food ingredients; and
merchandises feed ingredients. ConAgra is a worldwide trader of
grain, oilseeds, fertilizer, edible beans and peas, sulfur, wool
and other commodities. ConAgra has processing and/or trading
operations in Canada, Australia, Europe, Asia and Latin America
as well as in the U.S.
In the Prepared Foods segment, ConAgra is a leading producer
and marketer of frozen prepared foods, shelf-stable prepared
foods, fresh red meats, branded processed red meats, chicken and
turkey products, seafood products, cheese and other dairy
products and potato products. ConAgra markets steaks and other
premium food products by direct mail and manufactures and markets
pet accessories and home sewing products. ConAgra's prepared
food brands include Armour, Chun King Frozen, Banquet, Healthy
Choice, Kid Cuisine, Country Pride, Country Skillet, Monfort,
Pfaelzer, Longmont, Morton, Patio, Taste O'Sea, Decker, Armour
Classics, Golden Star, Webber Farms, World's Fare, Cook's,
Singleton, Hunt's, Wesson, Manwich, Orville Redenbacher's, Peter
Pan, Snack Pack, Swiss Miss, La Choy, Rosarita, Gebhardt,
Butterball, Swift Premium, Eckrich, Treasure Cave, County Line,
Reddi-Wip and Act II.
ConAgra's finance businesses provide specialized, self-
financed financial services related to the food industry.
Borrowings of the finance businesses are not guaranteed by
ConAgra. The principal businesses are commodity futures
brokerage, included in the Trading & Processing segment, and
financing, leasing and insurance services for the red meat
business included in the Prepared Foods segment.
Acquisitions have contributed substantially to ConAgra's
sales and earnings growth, both in the years of acquisition and
in subsequent years. Major acquisitions have included United
Agri Products, Banquet Foods, Country Pride Foods, Peavey
Company, Monfort of Colorado, the Morton, Chun King and Patio
frozen food businesses, SIPCO (formerly Swift Independent Packing
Company), the assets of Armour Food Company, 50% of Trident
Seafoods, Pillsbury's grain merchandising business, eight U.S.
flour mills acquired from International Multifoods, Beatrice
Company, the assets of Elders' malt and wool business in
Australia, approximately 91% of Elders' beef business in
Australia, and Golden Valley Microwave Foods. ConAgra
anticipates that it will continue to grow internally and through
acquisitions.
Certain of ConAgra's businesses are subject to significant
variation in performance as a consequence of seasonal, cyclical
or other industry conditions. For example, ConAgra's fertilizer
business is seasonal, with stronger profits expected during the
spring planting season. The poultry industry has traditionally
been cyclical, with margins expanding and contracting as
production contracts and expands. ConAgra's international
trading businesses' results are affected by political, economic
and environmental factors which influence commodity prices and
markets. In the short to intermediate term, ConAgra's reported
earnings can be favorably or unfavorably impacted in a material
way if industry conditions in a number of businesses are either
positive or negative at the same time.
ConAgra's principal executive office is located at One
ConAgra Drive, Omaha, Nebraska 68102-5001, telephone (402) 595-
4000.
CONAGRA CAPITAL
ConAgra Capital, wholly-owned by two indirect wholly-owned
subsidiaries of ConAgra (the "Subsidiaries"), is a limited
liability company organized under the laws of the state of Iowa.
The principal executive offices of ConAgra Capital and its
Managing Members (as defined below) are presently located at One
ConAgra Drive, Omaha, Nebraska 68102-5001, telephone: (402) 595-
4000. The Subsidiaries own all of the common interests ("Common
Securities") of ConAgra Capital, which Common Securities are
nontransferable. The Subsidiaries have unlimited liability for
the debts, obligations and liabilities of ConAgra Capital.
ConAgra Capital exists solely for the purpose of issuing
preferred and common securities and lending the net proceeds
thereof to ConAgra.
Financial statements of ConAgra Capital will be made
available to holders of Preferred Securities annually as soon as
practicable after the end of ConAgra Capital's fiscal year.
ConAgra and ConAgra Capital have entered into an agreement
pursuant to which ConAgra has agreed to guarantee the payment of
any liabilities incurred by ConAgra Capital (other than
obligations to holders of Preferred Securities). The agreement
expressly provides that such agreement is for the benefit of, and
is enforceable by, third parties to whom ConAgra Capital owes
such obligations.
USE OF PROCEEDS
ConAgra intends to add the net proceeds from the sale of
Offered Securities to its general funds, to be used for general
corporate purposes, including working capital, capital
expenditures, the repayment of commercial paper, repayment of
loans under bank credit agreements and repayment of other short
and intermediate term borrowings. Prior to such application,
such net proceeds may be invested in short or intermediate term
securities. Except as may be indicated in the Prospectus
Supplement, no specific determination as to the use of the
proceeds of the Offered Securities in respect to which this
Prospectus is being delivered has been made. ConAgra anticipates
that it will raise additional funds from time to time through
equity or debt financing, including borrowings under its
revolving credit agreements, to finance its businesses worldwide.
ConAgra Capital will loan to ConAgra all proceeds received by
ConAgra Capital from the sale of its Preferred Securities.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratio of earnings to
combined fixed charges and preferred stock dividends for the
periods indicated.
Six Months
Ended Fiscal Years Ended May
Nov. 28 -------------------------------------------------
1993 1993 1992 1991 1990 1989
------ ---- ---- ---- ---- ----
2.7 2.5 2.2 2.2 2.5 2.4
For the purpose of computing the above ratio of earnings to
combined fixed charges and preferred stock dividends, earnings
consist of income before taxes and fixed charges. Fixed charges,
for the purpose of computing earnings, are adjusted to exclude
interest capitalized and that component of fixed charges
representing ConAgra's proportionate share of the preferred stock
dividend requirement of a 50% owned subsidiary. Fixed charges
include interest on both long and short term debt (whether said
interest is expensed or capitalized and including interest
charged to cost of goods sold), a portion of noncancellable
rental expense representative of the interest factor and
ConAgra's proportionate share of the preferred stock dividend
requirement of a 50% owned subsidiary, excluding that which would
be eliminated in consolidation. Preferred stock dividend
requirements are computed by increasing preferred stock dividends
to an amount representing pre-tax earnings which would be
required to cover such dividend requirements. The ratio is
computed using the amounts for ConAgra as a whole, including its
majority-owned subsidiaries, whether or not consolidated, and its
proportionate shares of any 50% owned subsidiaries whether or not
ConAgra guarantees obligations of these subsidiaries.
DESCRIPTION OF PREFERRED SECURITIES
The following is a summary of certain terms and provisions
of the Preferred Securities of any series. Certain terms and
provisions of the Preferred Securities of a particular series
will be summarized in the Prospectus Supplement relating to the
Preferred Securities of such series. If so indicated in the
Prospectus Supplement, the terms and provisions of the Preferred
Securities of a particular series may differ from the terms set
forth below. The summaries set forth below and in the applicable
Prospectus Supplement address the material terms of the Preferred
Securities of any particular series but do not purport to be
complete and are subject to, and qualified in their entirety by
reference to, the Articles of Organization of ConAgra Capital
(the "Certificate"), the Operating Agreement of ConAgra Capital
(the "Agreement") and the resolutions adopted, or to be adopted,
by the Subsidiaries, in their capacity as the holders of all of
ConAgra Capital's Common Securities (the "Managing Members"),
establishing the rights, preferences, privileges, limitations and
restrictions relating to the Preferred Securities of any series
or of a particular series. The Certificate and the Agreement
will be substantially in the forms filed as exhibits to the
Registration Statement of which this Prospectus forms a part.
Pursuant to the Certificate, holders of the Preferred Securities
are bound by the Agreement.
General
ConAgra Capital is authorized to issue common securities and
preferred securities. The preferred securities may be issued in
one or more series or classes, with such dividend rights,
liquidation preferences, redemption provisions, voting rights and
other rights, preferences, privileges, limitations and
restrictions as shall be set forth in the Agreement and the
resolutions providing for the issuance thereof adopted by the
Managing Members. All of the Preferred Securities, to be issued
in one or more series or classes, will rank pari passu with each
other with respect to participation in profits and assets.
The Preferred Securities of any series will be issued in
registered form only without dividend coupons. Registration of,
and registration of transfers of, the Preferred Securities of any
series will be by book entry only. The Preferred Securities of
any series will have the dividend rights, rights upon
liquidation, redemption provisions and voting rights set forth
below, unless otherwise provided in the Prospectus Supplement
relating to the Preferred Securities of a particular series.
Reference is made to the Prospectus Supplement relating to the
Preferred Securities of a particular series for specific terms,
including (i) the designation of the Preferred Securities of such
series, (ii) the price at which the Preferred Securities of such
series will be issued, (iii) the dividend rate (or method of
calculation thereof), the dates on which dividends will be
payable and the dates from which dividends shall accrue, (iv) the
voting rights, if any, (v) any redemption or exchange provisions,
which may include any exchange of the Preferred Securities as a
result of changes in or other developments in applicable tax law,
(vi) the stated liquidation preference, (vii) any other rights,
preferences, privileges, limitations and restrictions relating to
the Preferred Securities of such series and (viii) the terms upon
which the proceeds from the sale of the Preferred Securities of
such series will be loaned to ConAgra.
Dividends
Dividends on the Preferred Securities will be cumulative.
Cumulative dividends on any series of Preferred Securities will
accrue from the date specified in the applicable Prospectus
Supplement and will be payable monthly in arrears on the last day
of each calendar month of each year, commencing on the date
specified in the Prospectus Supplement relating to such series.
The dividend payable on Preferred Securities of a particular
series will be fixed at the rate per annum specified in the
Prospectus Supplement relating to such series. The amount of
dividends payable for any full monthly dividend period will be
computed on the basis of twelve 30-day months and a 360-day year
and, for any period shorter than a full monthly dividend period,
will be computed on the basis of the actual number of days
elapsed in such period. ConAgra Capital may only pay dividends
to the extent it has funds legally available to make such
payments. See "Description of the Guarantee" and "Description of
the Debentures" below.
Dividends on the Preferred Securities of any series will be
declared by the Managing Members of ConAgra Capital to the extent
that the Managing Members reasonably anticipate that at the time
of payment ConAgra Capital will have, and must be paid by ConAgra
Capital to the extent that at the time of proposed payment it
has, (i) funds legally available for the payment of such
dividends and (ii) cash on hand sufficient to permit such
payments. It is anticipated that ConAgra Capital's funds will be
limited to payments under the debentures (the "Debentures")
issued by ConAgra that will evidence the loans to be made by
ConAgra Capital to ConAgra of the proceeds of (i) Preferred
Securities of each series and (ii) ConAgra Capital's Common
Securities and related capital contributions. See "Description
of the Debentures."
Dividends declared on the Preferred Securities of any series
will be payable to the record holders thereof as they appear on
the register for the Preferred Securities of such series on the
relevant record dates, which will be, unless otherwise specified
in the Prospectus Supplement relating to each such series, one
Business Day (as hereinafter defined) prior to the relevant
payment dates. Subject to any applicable fiscal or other laws
and regulations, each such payment will be made as described
under "Book-Entry-Only Issuance; The Depository Trust Company"
below. In the event that any date on which dividends are payable
on the Preferred Securities of any series is not a Business Day,
then payment of the dividend payable on such date will be made on
the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay) except
that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if
made on such date. A "Business Day" shall mean any day other
than a day on which banking institutions in The City of New York
are authorized or required by law to close.
Except as described herein and in the Prospectus Supplement
relating to the Preferred Securities of a particular series,
holders of the Preferred Securities of any series will have no
other right to participate in the profits of ConAgra Capital.
Certain Restrictions on ConAgra Capital
If dividends have not been paid in full on the Preferred
Securities of any series, ConAgra Capital shall not:
(i) pay, or declare and set aside for payment, any
dividends on the Preferred Securities of any other series or
any other preferred securities in ConAgra Capital ranking
pari passu with the Preferred Securities of such series as
regards participation in profits of ConAgra Capital
("ConAgra Capital Dividend Parity Securities"), unless the
amount of any dividends declared on any ConAgra Capital
Dividend Parity Securities is paid on ConAgra Capital
Dividend Parity Securities and the Preferred Securities of
such series on a pro rata basis on the date such dividends
are paid on such ConAgra Capital Dividend Parity Securities,
so that
(x) (A) the aggregate amount paid as dividends on
the Preferred Securities of such series bears to (B)
the aggregate amount paid as dividends on ConAgra
Capital Dividend Parity Securities the same ratio as
(y) (A) the aggregate of all accumulated arrears
of unpaid dividends on the Preferred Securities of such
series bears to (B) the aggregate of all accumulated
arrears of unpaid dividends on ConAgra Capital Dividend
Parity Securities;
(ii) pay, or declare and set aside for payment, any
dividends on any securities in ConAgra Capital ranking
junior to the Preferred Securities of such series as to
dividends ("ConAgra Capital Dividend Junior Securities"); or
(iii) redeem, purchase or otherwise acquire any
ConAgra Capital Dividend Parity Securities or ConAgra
Capital Dividend Junior Securities;
until, in each case, such time as all accumulated arrearages of
unpaid dividends on the Preferred Securities of such series shall
have been paid in full for all dividend periods terminating on or
prior to, in the case of clauses (i) and (ii), such payment, and
in the case of clause (iii), the date of such redemption,
purchase or other acquisition. So long as the Preferred
Securities of any series are represented by one or more global
certificates, dividends on such series of Preferred Securities
shall have been paid in full with respect to any dividend payment
date for such series when the amount of dividends payable on such
date has been paid to The Depository Trust Company ("DTC"). See
"Book-Entry-Only Issuance; The Depository Trust Company." As of
the date of this Prospectus, there are no ConAgra Capital
Dividend Parity Securities outstanding.
ConAgra Capital may not consolidate, merge with or into,
or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body,
except as described below. ConAgra Capital may, for purposes of
changing its state of domicile or avoiding tax consequences
adverse to ConAgra or ConAgra Capital or holders of Preferred
Securities, without the consent of the holders of the
Preferred Securities of any series, consolidate or merge with
or into a limited liability company or limited partnership
organized as such under the laws of any state of the United
States of America; provided that (i) such successor entity
either (x) expressly assumes all of the obligations of
ConAgra Capital under each series of Preferred Securities then
outstanding or (y) substitutes for the Preferred Securities
then outstanding other securities having substantially the
same terms as the
Preferred Securities then outstanding (the "Successor
Securities") so long as the Successor Securities rank, with
respect to participation in the profits or assets of the
successor entity, at least as senior as the respective Preferred
Securities rank with respect to participation in the profits or
assets of ConAgra Capital, (ii) ConAgra expressly
acknowledges such successor as the holder of all of the
Debentures relating to each series of Preferred Securities then
outstanding, (iii) such merger or consolidation does not cause
any series of Preferred Securities then outstanding to be
delisted by any national securities exchange or other
organization on which such series is then listed, (iv) holders of
outstanding Preferred Securities do not suffer any adverse tax
consequences as a result of such merger or consolidation (v) such
merger or consolidation, does not cause any series of Preferred
Securities to be downgraded by any "nationally recognized
statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities
Act and (vi) following such merger or consolidation ConAgra and
such successor limited liability company or limited partnership
arein compliance withthe InvestmentCompany Actof 1940,as amended.
The Managing Members are authorized and directed to conduct
their affairs and to operate ConAgra Capital in such a way that
ConAgra Capital would not be deemed to be an "investment company"
for purposes of the Investment Company Act of 1940, as amended.
In this connection, the Managing Members are authorized to take
any action not inconsistent with applicable law, the Certificate
or the Agreement which they determine in their discretion to be
necessary or desirable for such purposes.
Redemption
The Preferred Securities of a series will be redeemable at
the option of ConAgra Capital and subject to the prior consent of
ConAgra, in whole or in part from time to time, on or after the
date specified in the Prospectus Supplement relating to such
series, at the stated liquidation preference per security for
such series, plus accumulated and unpaid dividends (whether or
not declared) (the "Redemption Price") to the date fixed for
redemption (the "Redemption Date"). The Preferred Securities of
any series may also be redeemed at the option of ConAgra on such
terms and conditions as may be set forth in the Prospectus
Supplement relating to such series.
In the event that fewer than all the outstanding Preferred
Securities of a particular series are to be redeemed, except as
described below, the Preferred Securities of such series to be
redeemed will be selected as described under "Book-Entry-Only
Issuance; The Depository Trust Company" below.
The Preferred Securities of any series will also be redeemed
at the Redemption Price with the proceeds from the repayment by
ConAgra when due or prepayment by ConAgra as described under
"Description of the Debentures -- Optional Prepayment" of the
Debentures relating to such series, subject to the provisions in
clause (iii) under "Certain Restrictions on ConAgra Capital"
above. Notwithstanding the foregoing, the Preferred Securities
of any series will not be redeemed when the Debentures relating
to the Preferred Securities of such series are due if ConAgra
elects to exchange such Debentures for new debentures or to repay
such Debentures and reborrow the proceeds from such repayment nor
will such Preferred Securities be redeemed if such Debentures are
prepaid as described under "Description of the Debentures --
Optional Prepayment" and ConAgra elects to reborrow the proceeds
from such prepayment; provided that ConAgra may not so elect to
exchange any such Debentures or to reborrow the proceeds from any
repayment or prepayment of such Debentures, unless at the time of
each such exchange or reborrowing ConAgra Capital owns all of
such Debentures and, as determined in the judgment of the
Managing Members and ConAgra Capital's financial advisor
(selected by the Managing Members and who shall be unaffiliated
with ConAgra and shall be among the 30 largest investment banking
firms, measured by total capital, in the United States at the
time new debentures are to be issued in connection with such
exchange or reborrowing), (a) ConAgra is not bankrupt, insolvent
or in liquidation, (b) no event of default or event which
with the giving of notice or the passage of time would constitute
an event of default on any debenture pertaining to Preferred
Securities of any series has occurred and is continuing, (c)
ConAgra has made timely payments on the repaid Debentures for the
immediately preceding 18 months, (d) ConAgra Capital is not in
arrears on payments of dividends on the Preferred Securities of
such series, (e) there is then no present reason
to believe ConAgra will be unable to make timely payment of
principal and interest on such new debentures, (f) such new
debentures are being issued on terms, and under
circumstances, that are consistent with those which a lender
would then require for a loan to an unrelated party, (g) such
new debentures are being issued at a rate sufficient to provide
payments equal to or greater than the amount of distributions
required under the Preferred Securities of such series, (h)
such new debentures are being issued for a term that is
consistent with market circumstances and ConAgra's financial
condition, (i) immediately prior to issuing such new
debentures, the senior unsecured long-term debt of ConAgra
is (or if no such debt is outstanding, would be) rated not less
than BBB (or the equivalent) by Standard & Poor's Corporation and
Baa1 (or the equivalent) by Moody's Investors Service, Inc. (or
if either of such rating organizations is not then rating
ConAgra's senior unsecured long-term debt, the equivalent of such
rating by any other "nationally recognized statistical rating
organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act) and any
subordinated unsecured long-term debt of ConAgra or, if
there is no such debt then outstanding, the Preferred Securities
of such series, are rated not less than BBB- (or the equivalent)
by Standard & Poor's Corporation or Baa3 (or the equivalent) by
Moody's Investors Service, Inc. or the equivalent of either such
rating by any other "nationally recognized statistical rating
organization" and (j) such new debentures will have a final
maturity no later than the one hundredth anniversary of the
issuance of the Preferred Securities of the first series issued.
ConAgra Capital may not redeem any Preferred Securities of
any series unless all accumulated arrearages of unpaid dividends
have been paid on all Preferred Securities of all series for all
monthly dividend periods terminating on or prior to the date of
redemption.
If ConAgra Capital gives a notice of redemption in respect
of Preferred Securities of a particular series, then, by 12:00
noon, New York time, on the applicable Redemption Date, ConAgra
Capital will irrevocably deposit with DTC funds sufficient to pay
the applicable Redemption Price and will give DTC irrevocable
instructions and authority to pay the Redemption Price to the
holders thereof. See "Book-Entry-Only Issuance; The Depository
Trust Company." If notice of redemption shall have been given
and funds deposited as required, then upon the date of such
deposit, all rights of holders of such Preferred Securities of a
series so called for redemption will cease, except the right of
the holders of such securities to receive the Redemption Price,
but without interest, and such securities will cease to be
outstanding. In the event that any date on which any payment in
respect of the redemption of Preferred Securities of any series
is not a Business Day, then payment of the Redemption Price
payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such
Business Day falls in the next calendar year, such payment will
be made on the immediately preceding Business Day. In the event
that payment of the Redemption Price in respect of Preferred
Securities of any series is improperly withheld or refused and
not paid either by ConAgra Capital or by ConAgra pursuant to the
Guarantee, dividends on such securities will continue to accrue,
at the then applicable rate, from the Redemption Date originally
established by ConAgra Capital for such securities to the date
such Redemption Price is actually paid, in which case the actual
payment date will be the date fixed for redemption for purposes
of calculating the Redemption Price.
Subject to the foregoing and applicable law (including,
without limitation, U.S. federal securities laws) ConAgra or its
subsidiaries may at any time and from time to time purchase
outstanding Preferred Securities of any series by tender, in the
open market or by private agreement.
Liquidation Distribution
In the event of any voluntary or involuntary liquidation,
dissolution or winding up of ConAgra Capital, the holders of
Preferred Securities of each series at the time outstanding will
be entitled to receive out of the assets of ConAgra Capital
legally available for distribution to securityholders, before any
distribution of assets is made to holders of common securities of
ConAgra Capital or any other class of securities in ConAgra
Capital ranking junior to the Preferred Securities as regards
participation in assets of ConAgra Capital, but together with the
holders of Preferred Securities of any other series or any other
preferred securities of ConAgra Capital outstanding ranking pari
passu with the Preferred Securities as regards participation in
the assets of ConAgra Capital ("ConAgra Capital Liquidation
Parity Securities"), an amount equal, in the case of the holders
of the Preferred Securities of such series, to the aggregate of
the stated liquidation preference for Preferred Securities of
such series as set forth in the Prospectus Supplement and all
accumulated and unpaid dividends (whether or not declared) to the
date of payment (the "Liquidation Distribution"). If, upon any
such liquidation, the Liquidation Distributions can be paid only
in part because ConAgra Capital has insufficient assets available
to pay in full the aggregate Liquidation Distributions and the
aggregate maximum liquidation distributions on ConAgra Capital
Liquidation Parity Securities, then the amounts payable directly
by ConAgra Capital on the Preferred Securities of such series and
on such ConAgra Capital Liquidation Parity Securities shall be
paid on a pro rata basis, so that
(i)(x) the aggregate amount paid as Liquidation
Distributions on the Preferred Securities of such series
bears to (y) the aggregate amount paid as liquidation
distributions on ConAgra Capital Liquidation Parity
Securities the same ratio as
(ii)(x) the aggregate Liquidation Distribution bears to
(y) the aggregate maximum liquidation distributions on
ConAgra Capital Liquidation Parity Securities.
Pursuant to the Agreement, ConAgra Capital will
automatically dissolve and be liquidated (i) when the period
fixed for the life of ConAgra Capital expires, (ii) if the
Managing Members by resolution require ConAgra Capital to be
wound up and dissolved (subject to the voting rights of the
holders of the Preferred Securities described in "Voting Rights")
or (iii) upon the bankruptcy, insolvency or liquidation of either
Managing Member.
Voting Rights
The holders of the Preferred Securities have no voting
rights except as described herein or in the applicable Prospectus
Supplement. If (i) ConAgra Capital fails to pay dividends in
full on the Preferred Securities of any series for 18 consecutive
monthly dividend periods; (ii) an Event of Default (as defined in
the Debentures) occurs and is continuing on the Debentures; or
(iii) ConAgra is in default on any of its payment or other
obligations under the Guarantee (as described under "Description
of the Guarantee -- Certain Covenants of ConAgra"), then the
holders of a majority in stated liquidation preference of the
outstanding Preferred Securities of such series, together with
the holders of any other preferred securities in ConAgra Capital
having the right to vote for the appointment of a trustee in such
event, acting as a single class, will be entitled to appoint and
authorize a trustee to enforce ConAgra Capital's rights under the
Debentures against ConAgra, enforce the obligations undertaken by
ConAgra under the Guarantee and declare and pay dividends on the
Preferred Securities of such series. For purposes of determining
whether ConAgra Capital has failed to pay dividends in full for
18 consecutive monthly dividend periods, dividends shall be
deemed to remain in arrears, notwithstanding any payments in
respect thereof, until full cumulative dividends have been or
contemporaneously are declared and paid with respect to all
monthly dividend periods terminating on or prior to the date of
payment of such full cumulative dividends. Not later than 30
days after such right to -appoint a trustee arises, the Managing
Members will convene a meeting for the above purpose. If the
Managing Members fail to convene such meeting within such 30-day
period, the holders of 10% in stated liquidation preference of
the outstanding Preferred Securities of such series and such
other preferred securities will be entitled to convene such
meeting. The provisions of the Agreement relating to the
convening and conduct of meetings of securityholders will apply
with respect to any such meeting. Any trustee so appointed shall
vacate office immediately, subject to the terms of such other
preferred securities, if ConAgra Capital shall have paid in full
all accumulated and unpaid dividends on the Preferred Securities
of such series or such default or breach by ConAgra shall have
been cured.
If any resolution is proposed for adoption by the
securityholders of ConAgra Capital providing for, or the Managing
Members propose to take any action to effect, (x) any variation
or abrogation of the rights, preferences and privileges of the
Preferred Securities of any series by way of amendment of the
Agreement or otherwise (including, without limitation, the
authorization or issuance of any securities in ConAgra Capital
ranking, as to participation in the profits or assets of ConAgra
Capital, senior to the Preferred Securities) which variation or
abrogation adversely affects the holders of Preferred Securities
of such series, (y) the liquidation, dissolution or winding up of
ConAgra Capital or (z) the commencement of any bankruptcy,
insolvency, reorganization or other similar proceeding involving
ConAgra Capital in the United States or any state thereof, then
the holders of outstanding Preferred Securities of such series
(and, in the case of a resolution described in clause (x) above
which would adversely affect the rights, preferences or
privileges of any ConAgra Capital Dividend Parity Securities or
any ConAgra Capital Liquidation Parity Securities, such ConAgra
Capital Dividend Parity Securities or such ConAgra Capital
Liquidation Parity Securities, as the case may be, or, in the
case of any resolution described in clause (y) above, all ConAgra
Capital Liquidation Parity Securities or, in the case of any
resolution described in clause (z) above, other than holders of
any Preferred Securities of such series that are also creditors
of ConAgra or any of its subsidiaries) will be entitled to vote
together as a class on such resolution or action of the Managing
Members (but not any other resolution or action) and such
resolution or action shall not be effective except with the
approval of the holders of 66 2/3% in stated liquidation
preference of such outstanding securities (or, under certain
circumstances, 100% in stated liquidation preference of such
outstanding securities); provided, however, that no such approval
shall be required under clauses (y) and (z) if the liquidation,
dissolution or winding up of ConAgra Capital is proposed or
initiated upon the initiation of proceedings, or after
proceedings have been initiated, for the liquidation,
dissolution, or winding up of either of the Managing Members.
The rights attached to the Preferred Securities of any
series will be deemed not to be varied by the creation or issue
of, and no vote will be required for the creation or issue of,
any further securities in ConAgra Capital ranking pari passu with
or junior to the Preferred Securities of any series with regard
to participation in the profits or assets of ConAgra Capital.
Any required approval of holders of Preferred Securities may
be given at a separate meeting of such holders convened for such
purpose or at a meeting of securityholders of ConAgra Capital or
pursuant to written consent. ConAgra Capital will cause a notice
of any meeting at which holders of the Preferred Securities of a
series are entitled to vote, or of any matter upon which action
may be taken by written consent of such holders, to be mailed to
each holder of record of the Preferred Securities of such series.
Each such notice will include a statement setting forth (i) the
date of such meeting or the date by which such action is to be
taken, (ii) a description of any resolution proposed for adoption
at such meeting on which such holders are entitled to vote or of
such matters upon which written consent is sought and (iii)
instructions for the delivery of proxies or consents.
Notwithstanding that holders of Preferred Securities of any
series are entitled to vote or consent under any of the
circumstances described above, any of the Preferred Securities of
any series that are owned by ConAgra or any entity owned more
than 50% by ConAgra, either directly or indirectly, shall not be
entitled to vote or consent and shall, for the purposes of such
vote or consent, be treated as if they were not outstanding.
Book-Entry-Only Issuance; The Depository Trust Company
DTC, New York, New York, will act as securities depository
for the Preferred Securities. The Preferred Securities will be
issued only as fully-registered securities registered in the name
of Cede & Co. (DTC's partnership nominee). One or more fully-
registered global Preferred Securities certificates will be
issued for each series of Preferred Securities, representing all
of the Preferred Securities of such series, and will be deposited
with DTC.
DTC is a limited-purpose trust company organized under the
New York Banking Law, a "banking organization" within the meaning
of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Exchange Act.
DTC holds securities that its participants ("Participants")
deposit with DTC. DTC also facilitates the settlement among
Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized
book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates.
Direct participants include securities brokers and dealers,
banks, trust companies, clearing corporations, and certain other
organizations ("Direct Participants"). DTC is owned by a number
of its Direct Participants and by the New York Stock Exchange,
Inc., the American Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc. Access to the DTC system
is also available to others such as securities brokers and
dealers, banks and trust companies that clear through or maintain
a custodial relationship with a Direct Participant, either
directly or indirectly ("Indirect Participants"). The Rules
applicable to DTC and its Participants are on file with the
Commission.
Purchases of Preferred Securities under the DTC system must
be made by or through Direct Participants, which will receive a
credit for the Preferred Securities on DTC's records. The
ownership interest of each actual purchaser of each Preferred
Securities ("Beneficial Owner") is in turn to be recorded on the
Direct and Indirect Participants' records. Beneficial Owners
will not receive written confirmation from DTC of their purchase,
but Beneficial Owners are expected to receive written
confirmations providing details of their transactions, as well as
periodic statements of their holdings, from the Direct or
Indirect Participant through which the Beneficial Owner purchased
Preferred Securities. Transfers of ownership interests in the
Preferred Securities are to be accomplished by entries made on
the books of Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing
their ownership interests in Preferred Securities, except in the
event that use of the book-entry system for the Preferred
Securities is discontinued.
To facilitate subsequent transfers, all Preferred Securities
deposited by Participants with DTC are registered in the name of
Cede & Co. The deposit of Preferred Securities with DTC and
their registration in the name of Cede & Co. effect no change in
beneficial ownership. DTC has no knowledge of the actual
Beneficial Owners of the Preferred Securities; DTC's records
reflect only the identity of the Direct Participants to whose
accounts such Preferred Securities are credited, which may or may
not be the Beneficial Owners. The Participants will remain
responsible for keeping account of their holdings on behalf of
their customers.
Conveyance of notices and other communications by DTC to
Direct Participants, by Direct Participants to Indirect
Participants, and by Direct Participants and Indirect
Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Redemption notices will be sent to Cede & Co. If less then
all of the Preferred Securities of any series are being redeemed,
DTC's practice is to determine by lot the amount of the interest
of each Direct Participant in such series to be redeemed.
Although voting with respect to the Preferred Securities is
limited, in those cases where a vote is required, neither DTC nor
Cede & Co. will consent or vote with respect to Preferred
Securities. Under its usual procedures, DTC mails an Omnibus
Proxy to ConAgra Capital as soon as possible after the record
date. The Omnibus Proxy assigns Cede & Co.'s consenting or
voting rights to those Direct Participants to whose accounts the
Preferred Securities are credited on the record date (identified
in a listing attached to the Omnibus Proxy).
Dividend payments on the Preferred Securities will be made
to DTC. DTC's practice is to credit Direct Participants'
accounts on the relevant payable date in accordance with their
respective holdings shown on DTC's records unless DTC has reason
to believe that it will not receive payments on such payable
date. Payments by Participants to Beneficial Owners will be
governed by standing instructions and customary practices and
will be the responsibility of such Participant and not of DTC,
ConAgra Capital or ConAgra, subject to any statutory or
regulatory requirements as may be in effect from time to time.
Payment of dividends to DTC will be the responsibility of ConAgra
Capital, disbursement of such payments to Direct Participants
will be the responsibility of DTC and disbursement of such
payments to the Beneficial Owners will be responsibility of
Direct and Indirect Participants.
DTC may discontinue providing its services as securities
depository with respect to the Preferred Securities of any series
at any time by giving reasonable notice to ConAgra Capital and
ConAgra. Under such circumstances, in the event that a successor
securities depository is not obtained, Preferred Securities
certificates for such series are required to be printed and
delivered.
The information in this section concerning DTC and DTC's
book-entry system has been obtained from sources that ConAgra
Capital believes to be reliable, but neither ConAgra Capital nor
ConAgra takes responsibility for the accuracy thereof.
Registrar, Transfer Agent and Paying Agent
ConAgra will initially act as registrar, transfer agent and
paying agent for the Preferred Securities.
Registration of transfers of Preferred Securities of any
series will be effected without charge by or on behalf of ConAgra
Capital, but upon payment (with the giving of such indemnity as
ConAgra Capital or ConAgra may require) in respect of any tax or
other governmental charges which may be imposed in relation to
it.
ConAgra Capital will not be required to register or cause to
be registered the transfer of Preferred Securities of a
particular series after such Preferred Securities have been
called for redemption.
Miscellaneous
The Preferred Securities are not subject to any sinking fund
provisions. Holders of Preferred Securities of any series have
no preemptive rights.
ConAgra and ConAgra Capital will enter into an agreement
(the "Expense Agreement") pursuant to which ConAgra will agree to
guarantee the payment of any liabilities incurred by ConAgra
Capital other than obligations to holders of Preferred
Securities, which will be separately guaranteed to the extent set
forth in the Guarantee. See "Description of the Guarantee." The
Expense Agreement will expressly provide that it is for the
benefit of, and is enforceable by, third parties to whom ConAgra
Capital owes such obligations. A copy of the form of Expense
Agreement has been filed as an exhibit to the Registration
Statement of which this Prospectus forms a part.
DESCRIPTION OF THE GUARANTEE
Set forth below is condensed information concerning the
guarantee (the "Guarantee") which will be executed and delivered
by ConAgra for the benefit of the holders from time to time of
Preferred Securities. This summary contains all material
information concerning the Guarantee but does not purport to be
complete. References to provisions of the Guarantee are
qualified in their entirety by reference to the text of the
Guarantee, a form of which has been filed as an exhibit to the
Registration Statement of which this Prospectus forms a part.
General
ConAgra will irrevocably and unconditionally agree, to the
extent set forth herein, to pay in full, to the holders of the
Preferred Securities of any series, the Guarantee Payments (as
defined below) (except to the extent paid by ConAgra Capital), as
and when due, regardless of any defense, right of set-off or
counterclaim which ConAgra Capital may have or assert. The
following payments to the extent not paid by ConAgra Capital (the
"Guarantee Payments") will be subject to the Guarantee (without
duplication): (i) any accumulated and unpaid dividends which
have been theretofore declared on the Preferred Securities of
such series out of funds legally available therefor, (ii) the
redemption price (including all accumulated unpaid dividends)
payable out of funds legally available therefor with respect to
Preferred Securities of any series called for redemption by
ConAgra Capital and (iii) upon the liquidation of ConAgra
Capital, the lesser of (a) the aggregate of the stated
liquidation preference and all accumulated and unpaid dividends
(whether or not declared) to the date of payment and (b) the
amount of assets of ConAgra Capital legally available for
distribution to holders of Preferred Securities of such series in
liquidation. ConAgra's obligation to make a Guarantee Payment
may be satisfied by direct payment of the required amounts by
ConAgra to the holders of Preferred Securities of any series or
by causing ConAgra Capital to pay such amounts to such holders.
Certain Covenants of ConAgra
In the Guarantee, ConAgra will covenant that, so long as any
Preferred Securities of any series remain outstanding, neither
ConAgra nor any majority owned subsidiary of ConAgra will declare
or pay any dividend on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of ConAgra's capital
stock or make any guarantee payments with respect to the
foregoing (other than payments under the Guarantee, payments to
redeem common share purchase rights under ConAgra's shareholder
rights plan dated July 10, 1986, as amended, or the declaration
of a dividend of similar share purchase rights in the future), if
at such time ConAgra will be in default with respect to its
payment or other obligations under the Guarantee or the Expense
Agreement or there shall have occurred any event that, with the
giving of notice or the lapse of time or both, would constitute
an Event of Default under the Debentures then outstanding.
In the Guarantee, ConAgra will also covenant that, so long
as Preferred Securities of any series remain outstanding, it will
(i) not cause or permit any Common Securities of ConAgra Capital
to be transferred, (ii) maintain direct or indirect 100%
ownership of all outstanding securities of ConAgra Capital other
than the Preferred Securities and any other securities permitted
to be issued by ConAgra Capital that would not cause it to become
an "investment company" under the Investment Company Act of 1940,
as amended, (iii) cause at least 21% of the total value of
ConAgra Capital and at least 21% of all interests in the capital,
income, gain, loss, deduction and credit of ConAgra Capital to be
represented by Common Securities, (iv) not voluntarily dissolve,
windup or liquidate ConAgra Capital or either of the Managing
Members, (v) cause the Subsidiaries to remain the Managing
Members of ConAgra Capital and timely perform all of their
respective duties as Managing Members of ConAgra Capital and (vi)
use reasonable efforts to cause ConAgra Capital to remain a
limited liability company and otherwise continue to be treated as
a partnership for U.S. federal income tax purposes; provided that
ConAgra may permit ConAgra Capital to consolidate or merge with
or into another limited liability company or limited partnership
as described above under "Description of Preferred Securities --
Certain Restrictions on ConAgra Capital" so long as ConAgra
agrees to comply with the covenants described in clauses (i)
through (vi) above with respect to such successor limited
liability company or limited partnership.
Amendments and Assignment
Except with respect to any changes which do not adversely
affect the rights of holders of the Preferred Securities (in
which case no vote will be required), the Guarantee may be
amended only with the prior approval of the holders of not less
than 66 2/3% in stated liquidation preference of all Preferred
Securities of all series then outstanding. The manner of
obtaining any such approval of holders of the Preferred
Securities will be as set forth under "Description of Preferred
Securities -- Voting Rights." All guarantees and agreements
contained in the Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of ConAgra and shall
inure to the benefit of the holders of the Preferred Securities
then outstanding.
Termination of the Guarantee
The Guarantee will terminate and be of no further force and
effect as to any series of Preferred Securities upon full payment
of the Redemption Price of all Preferred Securities of such
series or upon the retirement of all Preferred Securities of such
series, and shall terminate completely upon full payment of the
amounts payable upon liquidation of ConAgra Capital. The
Guarantee will continue to be effective or will be reinstated, as
the case may be, if at any time any holder of Preferred
Securities of any series must restore payment of any sums paid
under the Preferred Securities of such series or the Guarantee.
Status of the Guarantee
The Guarantee will constitute an unsecured obligation of
ConAgra and will rank (i) subordinate and junior in right of
payment to all other liabilities of ConAgra, (ii) pari passu with
the most senior preferred stock now or hereafter issued by
ConAgra and with any guarantee now or hereafter entered into by
ConAgra in respect of any preferred or preference stock of any
affiliate of ConAgra and (iii) senior to ConAgra's common stock.
For purposes of clause (ii), pari passu means that any
payments to which beneficiaries of the Guarantee are entitled
must be shared with holders of any preferred or preference stock
to which the Guarantee is stated to be pari passu ("Pari Passu
Stock") to the same extent as would be required under applicable
law if instead the Guarantee constituted a class of preferred or
preference stock of ConAgra ranking pari passu with such Pari
Passu Stock as to such payments.
The Guarantee will constitute a guarantee of payment and not
of collection. A holder of Preferred Securities may enforce the
Guarantee directly against ConAgra, and ConAgra will waive any
right or remedy to require that any action be brought against
ConAgra Capital or any other person or entity before proceeding
against ConAgra. The Guarantee will not be discharged except by
payment of the Guarantee Payments in full to the extent not paid
by ConAgra Capital.
Since ConAgra is a holding company, the rights of ConAgra
and hence the rights of creditors of ConAgra (including the
rights of holders of Preferred Securities under the Guarantee),
to participate in any distribution of the assets of any
subsidiary upon its liquidation or reorganization or otherwise is
necessarily subject to the prior claims of creditors of the
subsidiary, except to the extent that claims of ConAgra itself as
a creditor of the subsidiary may be recognized.
Governing Law
The Guarantee will be governed by and construed in
accordance with the laws of the State of New York.
DESCRIPTION OF THE DEBENTURES
Set forth below is condensed information concerning the
Debentures that will evidence the loans to be made by ConAgra
Capital to ConAgra of the proceeds of (i) Preferred Securities of
each series and (ii) ConAgra Capital's Common Securities and
related capital contributions ("Common Securities Payments"). See
"Description of the Indentures" for a summary of the material
provisions of the subordinated indenture dated March 10, 1994
between ConAgra and First Trust National Association as Trustee
(the "Subordinated Indenture"). References to provisions of the
Subordinated Indenture are qualified in their entirety by
reference to the text of the Subordinated Indenture, a form of
which has been filed as an exhibit to the Registration Statement
of which this Prospectus forms a part. All Debentures will be
issued under the Subordinated Indenture.
General
The aggregate dollar amount of the Debentures relating to
Preferred Securities of any series will be set forth in the
Prospectus Supplement for such series and will be equal to the
aggregate liquidation preference of the Preferred Securities of
such series, together with the related Common Interest Payments.
The entire principal amount of all Debentures will become
due and payable, together with any accrued and unpaid interest
thereon, including Additional Interest (as herein defined) if
any, on the earliest of (i) the date that is the forty-ninth
anniversary of the issuance of the Preferred Securities of
the first series issued, subject to ConAgra's right to exchange
such Debentures for new debentures or reborrow the proceeds from
the repayment of such Debentures upon the terms and subject to
the conditions set forth under "Description of Preferred
Securities -- Redemption" or (ii) the date upon which ConAgra
Capital is dissolved, wound up or liquidated.
Mandatory Prepayment
If ConAgra Capital redeems Preferred Securities of any
series in accordance with the terms thereof, the Debentures
relating to such series will become due and payable in a
principal amount equal to the aggregate stated liquidation
preference of the Preferred Securities of such series so redeemed
(together with any accrued but unpaid interest, including
Additional Interest, if any, on the portion being prepaid). Any
payment pursuant to this provision shall be made prior to 12:00
noon, New York time, on the date of such redemption or at such
other time on such earlier date as ConAgra Capital and ConAgra
shall agree.
Optional Prepayment
ConAgra has the right to prepay the Debentures relating to
Preferred Securities of a series, without premium or penalty, in
whole or in part (together with any accrued but unpaid interest,
including Additional Interest, if any, on the portion being
prepaid) at any time following the date, if any, set forth in the
Prospectus Supplement for such series.
Interest
The Debentures relating to Preferred Securities of a series
shall bear interest at the annual rate set forth in the
Prospectus Supplement for such series, accruing from the date
they are issued until maturity. Such interest shall be payable
monthly on the last day of each calendar month, commencing on the
date specified in the Prospectus Supplement relating to such
series. In the event that any date on which interest is payable
on such Debentures is not a Business Day, then payment of the
interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on such
date .
Option to Extend Interest Payment Period
ConAgra shall have the right at any time or times during
the term of such Debentures, so long as ConAgra is not in default
in the payment of interest under the Debentures, to extend the
interest payment period up to 18 months, at the end of which
period ConAgra will pay all interest then accrued and unpaid
(together with interest thereon at the rate specified for such
Debentures to the extent permitted by applicable law); provided
further that, during any such extended interest period, neither
ConAgra nor any majority owned subsidiary of ConAgra shall pay or
declare any dividends on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock
(other than payments to redeem common share purchase rights under
ConAgra's shareholder rights plan dated July 10, 1986, as
amended, or to declare a dividend of similar share purchase
rights in the future); and provided further that any such
extended interest period may only be selected with respect to any
Debenture if an extended interest period of identical length is
simultaneously selected for all Debentures. Prior to the
termination of any such extended interest payment period ConAgra
may further extend the interest payment period; provided that
such extended interest payment period, together with all such
further extensions thereof, may not exceed 18 months. Following
the termination of any extended interest payment period, if
ConAgra has paid all accrued and unpaid interest required by the
Debentures for such period, then ConAgra shall have the right to
again extend the interest payment period up to 18 months as
herein described. ConAgra shall give ConAgra Capital notice of
its selection of such extended interest payment period one
Business Day prior to the earlier of (i) the date ConAgra Capital
declares the related dividend or (ii) the date ConAgra Capital is
required to give notice of the record or payment date of such
related dividend to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the
Preferred Securities, but in any event not less than two Business
Days prior to such record date. ConAgra will cause ConAgra
Capital to give such notice of ConAgra's selection of such
extended interest payment period to the holders of the Preferred
Securities.
Additional Interest
In addition, if at any time following the date of the
Prospectus Supplement relating to the Preferred Securities of a
series, ConAgra Capital shall be required to pay, with respect to
its income derived from the interest payments on the Debentures
relating to the Preferred Securities of such series, any amounts
for or on account of any taxes, duties, assessments or
governmental charges of whatever nature imposed by the United
States, or any other taxing authority, then, in any such case,
ConAgra will pay as interest such additional amounts ("Additional
Interest") as may be necessary in order that the net amounts
received and retained by ConAgra Capital after the payment of
such taxes, duties, assessments or governmental charges shall
result in ConAgra Capital's having such funds as it would have
had in the absence of the payment of such taxes, duties,
assessments or governmental charges.
Method and Date of Payment
Each payment by ConAgra of principal and interest
(including Additional Interest, if any) on the Debentures shall
be made to ConAgra Capital in lawful money of the United States
. Such interest shall be payable monthly on the last day (an
"Interest Payment Date") of each calendar month commencing on the
day specified in the applicable prospectus supplement following
issuance of the Debentures to the holder or holders of the
Debentures on the relevant record date (each, a "Record Date"),
which shall be one Business Day prior to the relevant Interest
Payment Date. If the Interest Payment Date is not a Business
Day, then payment of the interest payable on such day will be
made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the
immediately preceding Business Day (and the Record Date for such
Interest Payment Date shall be one Business Day prior to the date
on which payment is to be made), in each case with the same force
and effect as if made on such date.
Set-off
Notwithstanding anything to the contrary in the Subordinated
Indenture or Debentures, ConAgra shall have the right to set-off
any payment it is otherwise required to make thereunder with and
to the extent ConAgra has theretofore made, or is concurrently on
the date of such payment making, a payment under the Guarantee.
Subordination
The Subordinated Indenture will provide that ConAgra and
the holders of the Debentures (including ConAgra Capital)
covenant and agree (and each holder of Preferred Securities by
acceptance thereof agrees) that each of the Debentures is
subordinate and junior in right of payment to all Senior
Indebtedness as provided in the Subordinated Indenture. The
Subordinated Indenture defines "Senior Indebtedness" as
obligations (other than non-recourse obligations and the
indebtedness issued under the Subordinated Indenture) of, or
guaranteed or assumed by, ConAgra for borrowed money (including
both senior and subordinated indebtedness for borrowed money
(other than the Debentures)), or evidenced by bonds, debentures,
notes or other similar instruments, and amendments, renewals,
extensions, modifications and refundings of any such indebtedness
or obligation, whether existing as of the date of the
Subordinated Indenture or subsequently incurred by ConAgra.
In the event (a) of any insolvency or bankruptcy
proceedings, or any receivership, liquidation, or any proceedings
for liquidation, dissolution or other winding up of ConAgra or a
substantial part of its property, whether or not involving
insolvency or bankruptcy, or (b) that (i) a default shall have
occurred with respect to the payment of principal of (and
premium, if any) or interest on or other monetary amounts due and
payable on any Senior Indebtedness or (ii) there shall have
occurred an event of default (other than a default in the payment
of principal (or premium, if any) or interest, or other monetary
amounts due and payable) with respect to any Senior Indebtedness,
as defined therein or in the instrument under which the same is
outstanding, permitting the holder or holders thereof to
accelerate the maturity thereof (with notice or lapse of time, or
both), and such event of default shall have continued beyond the
period of grace, if any, in respect thereof, and, in the cases of
subclauses (i) and (ii) of this clause (b), such default or event
of default shall not have been cured or waived or shall not have
ceased to exist, or (c) that the principal of or the accrued
interest on the Debentures shall have been declared due and
payable upon an Event of Default and such declaration shall not
have been rescinded and annulled as provided therein, then the
holders of all Senior Indebtedness shall first be entitled to
receive payment of the full amount due thereon, or provision
shall be made for such payment in money or money's worth, before
the holders of any of the Debentures are entitled to receive a
payment on account of the principal of (and premium, if any) or
any interest on the indebtedness evidenced by the Debentures.
Since ConAgra is a holding company, the rights of ConAgra
and hence the rights of creditors of ConAgra (including the
rights of holders of the Debentures), to participate in any
distribution of the assets of any subsidiary upon its liquidation
or reorganization or otherwise is necessarily subject to the
prior claims of creditors of the subsidiary, except to the extent
that claims of ConAgra itself as a creditor of the subsidiary may
be recognized.
Covenants
In the Debentures, ConAgra will covenant that, so long as
any Preferred Securities of any series remain outstanding,
neither ConAgra nor any majority owned subsidiary of ConAgra will
declare or pay any dividend on, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of ConAgra's
capital stock or make any guarantee payments with respect to the
foregoing (other than payments under the Guarantee, payments to
redeem common share purchase rights under ConAgra's shareholder
rights plan dated July 10, 1986, as amended, or the declaration
of a dividend of similar share purchase rights in the future) if
at such time ConAgra will be in default with respect to its
payment or other obligations under the Guarantee or the Expense
Agreement or there shall have occurred any event that, with the
giving of notice or the lapse of time or both, would constitute
an Event of Default under the Debentures.
In the Debentures, ConAgra will also covenant that, so long
as Preferred Securities of any series remain outstanding, it will
(i) not cause or permit any Common Securities of ConAgra Capital
to be transferred, (ii) maintain direct or indirect ownership of
all outstanding securities in ConAgra Capital other than the
Preferred Securities and any other securities permitted to be
issued by ConAgra Capital that would not cause it to become an
"investment company" under the Investment Company Act of 1940, as
amended, (iii) cause at least 21% of the total value of ConAgra
Capital and at least 21% of all interests in the capital, income,
gain, loss, deduction and credit of ConAgra Capital to be
represented by Common Securities, (iv) not voluntarily dissolve,
windup or liquidate ConAgra Capital or either of the Managing
Members, (v) cause the Subsidiaries to remain the Managing
Members of ConAgra Capital and timely perform all of their
respective duties as Managing Members of ConAgra Capital, and
(vi) use reasonable efforts to cause ConAgra Capital to remain a
limited liability company and otherwise continue to be treated as
a partnership for U.S. federal income tax purposes; provided that
ConAgra may permit ConAgra Capital to consolidate or merge with
or into another limited liability company as described above
under "Description of Preferred Securities -- Certain
Restrictions on ConAgra Capital" so long as ConAgra agrees to
comply with the covenants described in clauses (i) through (vi)
above with respect to such successor limited liability company.
So long as ConAgra Capital holds the Debentures of any
series, it may not waive compliance or waive any default in
compliance by ConAgra of any covenant or other term in the
Debentures of any series or the Subordinated Indenture
without the approval of the same percentage of the holders of
Preferred Securities of such series, obtained in the
same manner, as would be required for an amendment of such
Debentures to the same effect.
Events of Default
If one or more of the following events (each an "Event of
Default") shall occur and be continuing:
(a) ConAgra shall fail to pay when due any interest,
including any Additional Interest, under the Debentures of
any series and such default shall continue for 30 days
(whether or not payment is prohibited by the provisions
described above under "Subordination" or otherwise);
provided that a valid extension of the interest payment
period by ConAgra shall not constitute a default in the
payment of interest for this purpose;
(b) ConAgra shall fail to pay when due any principal
under the Debentures of any series (whether or not payment
is prohibited by the provisions described above under
"Subordination" or otherwise);
(c) ConAgra shall fail to perform or observe any other
term, covenant or agreement contained in the Debentures of
any series for a period of 90 days after written notice
thereof, as provided in the Subordinated Indenture;
(d) the dissolution, winding up or liquidation of
ConAgra Capital; or
(e) certain events of bankruptcy, insolvency or
reorganization of ConAgra Capital or ConAgra;
then ConAgra Capital will have the right to declare the principal
of and the interest on the Debentures (including any Additional
Interest and any interest subject to an extension election) and
any other amounts payable under the Debentures to be forthwith
due and payable and to enforce its other rights as a creditor
with respect to the Debentures. No Debentures may be so
accelerated by ConAgra Capital unless all Debentures are so
accelerated. Under the terms of the Preferred Securities, the
holders of outstanding Preferred Securities will have the rights
referred to under "Description of Preferred Securities -- Voting
Rights," including the right to appoint a trustee, which trustee
shall be authorized to exercise ConAgra Capital's right to
accelerate the principal amount of the Debentures and to enforce
ConAgra Capital's other creditor rights under the Debentures;
provided that any trustee so appointed shall vacate office
immediately if any such Event of Default shall have been cured by
ConAgra. In addition, in the event ConAgra fails to pay any
principal or interest under the Debentures of any series when
due, holders of Preferred Securities shall, under certain
circumstances, be entitled to enforce ConAgra Capital's right to
receive such payments under all Debentures then outstanding
directly against ConAgra.
Governing Law
The Debentures and Subordinated Indenture will be governed
by and construed in accordance with the laws of the State of New
York.
Miscellaneous
ConAgra shall have the right at all times to assign any of
its rights or obligations under the Debentures to a direct or
indirect wholly owned subsidiary of ConAgra; provided that, in
the event of any such assignment, ConAgra shall remain jointly
and severally liable for all such obligations; and provided
further that ConAgra shall have received an opinion of nationally
recognized tax counsel that such assignment shall not constitute
a taxable event to the holders of Preferred Securities for
federal income tax purposes. ConAgra Capital may not assign any
of its rights under the Debentures without the prior written
consent of ConAgra. Subject to the foregoing, the Debentures
shall be binding upon and inure to the benefit of ConAgra and
ConAgra Capital and their respective successors and assigns. The
Debentures may not otherwise be assigned by ConAgra or ConAgra
Capital, except as described above under "Description of
Preferred Securities -- Certain Restrictions on ConAgra Capital."
Any assignment by ConAgra or ConAgra Capital in contravention of
these provisions will be null and void.
The Subordinated Indenture provides that ConAgra may
consolidate or merge with, or convey, transfer or lease its
properties and assets substantially as an entirety to any other
corporation, provided that such successor corporation expressly
assumes all obligations of ConAgra under the Subordinated
Indenture and certain other conditions are met.
The Debentures may be amended by mutual consent of ConAgra
and the holders thereof in the manner the parties shall agree;
provided that, so long as any of the Preferred Securities remain
outstanding, no such amendment shall be made that adversely
affects the holders of Preferred Securities then outstanding, and
no termination of the Debentures shall occur, without the prior
consent of the holders of not less than 66 2/3% in stated
liquidation preference of all Preferred Securities then
outstanding (or, under certain circumstances, 100% in stated
liquidation preference of all Preferred Securities then
outstanding), unless and until the Debentures and all accrued and
unpaid interest thereon (including Additional Interest, if any)
shall have been paid in full.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following discussion is a summary of certain United
States federal income tax consequences of the purchase, ownership
and disposition of Preferred Securities and is based upon the
advice of Davis Polk & Wardwell, special United States tax
counsel, with respect to United States federal income taxes. It
deals only with Preferred Securities held as capital assets by
initial purchasers who acquire the Preferred Securities at the
original offering price, and not with special classes of holders,
such as dealers in securities or currencies, life insurance
companies, persons holding Preferred Securities as a hedge or
hedge against currency risks or as part of a straddle, or persons
whose functional currency is not the U.S. dollar. This summary
is based on tax laws in effect in the United States, regulations
thereunder and administrative and judicial interpretations
thereof, as of the date hereof, all of which are subject to
change (possibly on a retroactive basis). This summary deals
only with holders who purchase Preferred Securities of any
series, and is subject to additional discussion of material
United States federal income tax consequences that may appear in
a Prospectus Supplement delivered in connection with a particular
series of Preferred Securities.
PROSPECTIVE PURCHASERS OF PREFERRED SECURITIES ARE ADVISED
TO CONSULT THEIR OWN TAX ADVISORS AS TO THE UNITED STATES OR
OTHER TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND DISPOSITION
OF PREFERRED SECURITIES, INCLUDING THE EFFECT OF ANY STATE OR
LOCAL TAX LAWS.
Income from the Preferred Securities
ConAgra Capital will be treated as a partnership for federal
income tax purposes. Each holder of Preferred Securities (a
"Securityholder") will be required to include in gross income the
Securityholder's distributive share of ConAgra Capital's net
income, which will generally be equal to the amount of interest
received or accrued on the Debentures (see below under "Potential
Extension of Payment Period"). Any amount so included in a
Securityholder's gross income will increase its tax basis in the
Preferred Securities, and the amount of cash dividends to the
Securityholder will reduce its tax basis in the Preferred
Securities. No portion of the amounts received on a Preferred
Securities will be eligible for the dividends received deduction.
ConAgra Capital does not presently intend to make an
election under section 754 of the Internal Revenue Code of 1986,
as amended. As a result, a subsequent purchaser of Preferred
Securities will not be permitted to adjust its taxable income
from ConAgra Capital to reflect any difference between its
purchase price for the Preferred Securities and ConAgra Capital's
underlying tax basis for its assets.
Disposition of the Preferred Securities
Gain or loss will be recognized on a sale, exchange or other
disposition of the Preferred Securities (including a distribution
of cash in redemption of all of a Securityholder's Preferred
Securities) equal to the difference between the amount realized
and the Securityholder's tax basis in the Preferred Securities
disposed of. In the case of a cash distribution in partial
redemption of a Securityholder's Preferred Securities, no loss
will be recognized, the Securityholder's tax basis in the
Preferred Securities will be reduced by the amount of the
distribution, and the Securityholder will recognize gain to the
extent, if any, that the amount of the distribution exceeds its
tax basis in the Preferred Securities. Gain or loss recognized
by a Securityholder on the sale or exchange of Preferred
Securities held for more than one year will generally be taxable
as long-term capital gain or loss although under certain
circumstances Securityholders other than initial purchasers who
acquire the Preferred Securities at the original offering price
may be required to treat a portion of the proceeds realized upon
disposition as ordinary income.
Potential Extension of Payment Period
Under the terms of any Debenture evidencing a loan that may
be made from the proceeds of the issuance of Preferred
Securities, ConAgra may be permitted to extend the interest
payment period up to 18 months. In the event that ConAgra
exercises this right, ConAgra may not declare dividends on any
shares of its preferred or common stock, and therefore, the
likelihood of extension of the payment period is, in the view of
ConAgra Capital and ConAgra, remote. In the event that the
payment period is extended, ConAgra Capital will continue to
accrue income, equal to the amount of the interest payment due at
the end of the extended payment period, over the length of the
extended payment period.
Accrued income will be allocated, but not distributed, to
holders of record on the last day of each calendar month. As a
result, beneficial owners during an extended interest payment
period will include interest in gross income in advance of the
receipt of cash and any such holders who dispose of Preferred
Securities prior to the record date for the payment of dividends
following such extended interest payment period will include
interest in gross income but will not receive from ConAgra
Capital any cash related thereto. The tax basis of a Preferred
Securities will be increased by the amount of any interest that
is included in income without a receipt of cash, and will be
decreased again when such holders of record subsequently receive
cash from ConAgra Capital.
United States Alien Holders
For purposes of this discussion, a "United States Alien
Holder" is any corporation, individual, partnership, estate or
trust that is, as to the United States, a foreign corporation, a
non-resident alien individual, a foreign partnership or a non-
resident fiduciary of a foreign estate or trust.
Under present United States federal income tax law:
(i) payments by ConAgra Capital or any of its paying
agents to any holder of a Preferred Securities who or which
is a United States Alien Holder will not be subject to
United States federal withholding tax; provided that (a) the
beneficial owner of the Preferred Securities does not
actually or constructively own 10% or more of the total
combined voting power of all classes of stock of ConAgra
entitled to vote, (b) the beneficial owner of the Preferred
Securities is not a controlled foreign corporation that is
related to ConAgra through stock ownership, and (c) either
(A) the beneficial owner of the Preferred Securities
certifies to ConAgra Capital or its agent, under penalties
of perjury, that it is not a United States holder and
provides its name and address or (B) a securities clearing
organization, bank or other financial institution that holds
customers' securities in the ordinary course of its trade or
business (a "Financial Institution") and holds the Preferred
Securities certifies to ConAgra Capital or its agent under
penalties of perjury that such statement has been received
from the beneficial owner by it or by a Financial
Institution between it and the beneficial owner and
furnishes ConAgra Capital or its agent with a copy thereof;
and
(ii) a United States Alien Holder of a Preferred
Securities will not be subject to United States federal
withholding tax on any gain realized upon the sale or other
disposition of Preferred Securities.
ConAgra Capital Information Returns
Within 90 days after the close of every taxable year of
ConAgra Capital, the Managing Members of ConAgra Capital will
furnish each holder of the Preferred Securities with a Schedule
K-1 setting forth such Securityholder's allocable share of income
for ConAgra Capital's taxable year.
Any person who holds Preferred Securities as a nominee for
another person is required to furnish to ConAgra Capital (a) the
name, address and taxpayer identification number of the
beneficial owners and the nominee; (b) notice of whether each
beneficial owner is (i) a person that is not a United States
person, (ii) a foreign government, an international organization
or any wholly owned agency or instrumentality of either of the
foregoing, or (iii) a tax-exempt entity; (c) the amount and
description of Preferred Securities held, acquired or transferred
for the beneficial owners; and (d) certain information including
the dates of acquisitions and transfers, methods of acquisition
and the costs thereof, as well as net proceeds from transfers.
Brokers and financial institutions are required to furnish
additional information, including whether they are a United
States person and certain information on Preferred Securities
they acquire, hold or transfer for their own account. A penalty
of $50 is imposed for each failure to report the above
information to ConAgra Capital, up to a maximum of $100,000 per
calendar year for all failures.
DESCRIPTION OF THE INDENTURES
The Debt Securities are to be issued under either (i) an
indenture (the "Senior Indenture"), dated as of October 8, 1990,
between ConAgra and The Chase Manhattan Bank (National
Association), as trustee, a copy of which has been filed as an
exhibit to the Registration Statement of which this Prospectus
forms a part, or (ii) the Subordinated Indenture, a copy of which
has been filed as an exhibit to the Registration Statement of
which this Prospectus forms a part. The terms of each Indenture
are the same in all material respects, except as described below.
The following is a summary of certain provisions of each
Indenture and does not purport to be complete. Reference is made
to each Indenture for a complete statement of such provisions.
Certain capitalized terms used below are defined in each
Indenture and have the meanings given them in each Indenture.
Section references are to each Indenture. Wherever particular
sections or defined terms of each Indenture are referred to, such
sections or defined terms are incorporated by reference as part
of the statement made, and the statement is qualified in its
entirety by such reference.
The Prospectus Supplement will contain any additional or
revised information with respect to the senior and subordinated
debt outstanding as of the date of the Prospectus Supplement.
General
The Indentures do not limit the amount of debentures, notes
or other evidences of indebtedness which may be issued
thereunder. The Indentures provide that Debt Securities may be
issued from time to time in one or more series and may be
denominated and payable in foreign currencies or units based on
or relating to foreign currencies, including European Currency
Units ("ECUs"). Special United States federal income tax
considerations applicable to any Debt Securities so denominated
will be described in the relevant Prospectus Supplement. The
Debt Securities issued under the Senior Indenture will be
unsecured and will rank pari passu with all other unsecured and
unsubordinated obligations of ConAgra. The Debt Securities
issued under the Subordinated Indenture will be subordinate and
junior in right of payment to the extent and in the manner set
forth in the Subordinated Indenture to all Senior Indebtedness of
ConAgra (see "Subordination").
Reference is made to the Prospectus Supplement for the
following terms of the Debt Securities (to the extent such terms
are applicable to such Debt Securities and are not set forth
herein) offered pursuant thereto (the "Offered Debt Securities"):
(i) designation, aggregate principal amount, purchase price and
denomination; (ii) currency or currency units based on or
relating to currencies in which such Debt Securities are
denominated and/or in which principal (and premium, if any)
and/or any interest will or may be payable; (iii) the date of
maturity; (iv) interest rate or rates (or method by which such
rate will be determined), if any; (v) the dates on which any such
interest will be payable; (vi) the place or places where the
principal of and interest, if any, on the Offered Debt Securities
will be payable; (vii) any redemption or sinking fund provisions;
(viii) whether the Offered Debt Securities will be issuable in
registered form or bearer form and, if Offered Debt Securities in
bearer form are issuable, restrictions applicable to the exchange
of one form for another and to the offer, sale and delivery of
Offered Debt Securities in bearer form; (ix) whether and under
what circumstances ConAgra will pay additional amounts on Offered
Debt Securities held by a person which is not a U.S. person (as
defined in the Prospectus Supplement) in respect of any tax,
assessment or governmental charge withheld or deducted, and if
so, whether ConAgra will have the option to redeem such Debt
Securities rather than pay such additional amounts; and (x) any
other specific terms of the Offered Debt Securities, including
any additional events of default or covenants provided for with
respect to Offered Debt Securities, and any terms which may be
required by or advisable under United States laws or regulations.
Debt Securities may be presented for exchange, and
registered Debt Securities may be presented for transfer in the
manner, at the places and subject to the restrictions set forth
in the Debt Securities and the Prospectus Supplement. Such
services will be provided without charge, other than any tax or
other governmental charge payable in connection therewith, but
subject to the limitations provided in the Indenture. Debt
Securities in bearer form and the coupons, if any, appertaining
thereto will be transferable by delivery.
Debt Securities will bear interest at a fixed rate (a "Fixed
Rate Security") or a floating rate (a "Floating Rate Security").
Debt Securities bearing no interest or interest at a rate which,
at the time of issuance, is below the prevailing market rate,
will be sold at a discount below their stated principal amount.
Special United States federal income tax considerations
applicable to any such discounted Debt Securities or to certain
Debt Securities issued at par which are treated as having been
issued at a discount for United States federal income tax
purposes will be described in the relevant Prospectus Supplement.
Debt Securities may be issued, from time to time, with the
principal amount payable on any principal payment date, or the
amount of interest payable on any interest payment date, to be
determined by reference to one or more currency exchange rates,
commodity prices, equity indices or other factors. Holders of
such Debt Securities may receive a principal amount on any
principal payment date, or a payment of interest on any interest
payment date, that is greater than or less than the amount of
principal or interest otherwise payable on such dates, depending
upon the value on such dates of the applicable currency,
commodity, equity index or other factor. Information as to the
methods for determining the amount of principal or interest
payable on any date, the currencies, commodities, equity indices
or other factors to which the amount payable on such date is
linked and certain additional tax considerations will be set
forth in the applicable Prospectus Supplement.
The Indentures contain no covenants or other specific
provisions to afford protection to holders of the Debt Securities
in the event of a highly leveraged transaction or a change in
control of ConAgra, except to the limited extent (i) described
under "Limitations on Liens", "Limitation on Sale and Lease-Back
Transactions" and "Consolidation, Merger, Conveyance or Transfer"
below with respect to the Senior Indenture and (ii) described
under "Consolidation, Merger, Conveyance or Transfer" below with
respect to the Subordinated Indenture. Such covenants or
provisions are not subject to waiver by ConAgra's Board of
Directors without the consent of the holders of not less than a
majority in principal amount of Debt Securities of each series as
described under "Modification of Indenture" below.
Registered Global Securities
The registered Debt Securities of a series may be issued in
the form of one or more fully registered global Debt Securities
(a "Registered Global Security") that will be deposited with a
depositary (the "Depositary"), or with a nominee for a Depositary
identified in the Prospectus Supplement relating to such series.
In such cases, one or more Registered Global Securities will be
issued in a denomination or aggregate denominations equal to the
portion of the aggregate principal amount of outstanding
registered Debt Securities of the series to be represented by
such Registered Global Security or Securities. Unless and until
it is exchanged in whole or in part for Debt Securities in
definitive registered form, a Registered Global Security may not
be transferred except as a whole by the Depositary for such
Registered Global Security to a nominee of such Depositary or by
a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such
nominee to a successor of such Depositary or a nominee of such
successor.
The specific terms of the depositary arrangement with
respect to any portion of a series of Debt Securities to be
represented by a Registered Global Security will be described in
the Prospectus Supplement relating to such series. ConAgra
anticipates that the following provisions will apply to all
depositary arrangements.
Upon the issuance of a Registered Global Security, the
Depositary for such Registered Global Security will credit, on
its book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such
Registered Global Security to the accounts of persons that have
accounts with such Depositary ("participants"). The accounts to
be credited shall be designated by any underwriters or agents
participating in the distribution of such Debt Securities or by
ConAgra if such Debt Securities are offered and sold directly by
ConAgra. Ownership of beneficial interest in a Registered Global
Security will be limited to participants or persons that may hold
interests through participants. Ownership of beneficial
interests in such Registered Global Security will be shown on,
and the transfer of that ownership will be effected only through,
records maintained by the Depositary for such Registered Global
Security (with respect to interests of participants) or by
participants or persons that hold through participants (with
respect to interests of persons other than participants). The
laws of some states require that certain purchasers of securities
take physical delivery of such securities in definitive form.
Such limits and such laws may impair the ability to transfer
beneficial interests in a Registered Global Security.
So long as the Depositary for a Registered Global Security,
or its nominee, is the registered owner of such Registered Global
Security, such Depositary or such nominee, as the case may be,
will be considered the sole owner or holder of the Debt
Securities represented by such Registered Global Security for all
purposes under the respective Indenture. Except as set forth
below, owners of beneficial interests in a Registered Global
Security will not be entitled to have the Debt Securities
represented by such Registered Global Security registered in
their names, will not receive or be entitled to receive physical
delivery of such Debt Securities in definitive form and will not
be considered the owners or holders thereof under the respective
Indenture.
Principal, premium, if any, and interest payments on Debt
Securities represented by a Registered Global Security registered
in the name of a Depositary or its nominee will be made to such
Depositary or its nominee, as the case may be, as the registered
owner of such Registered Global Security. None of ConAgra, the
Trustee under the respective Indenture or any paying agent for
such Debt Securities will have any responsibility or liability
for any aspect of the records to or payments made on account of
beneficial ownership interests in such Registered Global Security
or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
ConAgra expects that the Depositary for any Debt Securities
represented by a Registered Global Security, upon receipt of any
payment of principal, premium or interest, will immediately
credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the
principal amount of such Registered Global Security as shown on
the records of such Depositary. ConAgra also expects that
payments by participants to owners of beneficial interest in such
Registered Global Security held through such participants will be
governed by standing instructions and customary practices, as is
now the case with the securities held for the accounts of
customers in bearer form registered in "street names," and will
be the responsibility of such participants.
If the Depositary for any Debt Securities represented by a
Registered Global Security is at any time unwilling or unable to
continue as Depositary and a successor Depositary is not
appointed by ConAgra within ninety days or an Event of Default
has occurred and is continuing with respect to such Debt
Securities, ConAgra will issue such Debt Securities in definitive
form in exchange for such Registered Global Security. In
addition, ConAgra may at any time and in its sole discretion
determine not to have the Debt Securities of a series represented
by one or more Registered Global Securities and, in such event,
will issue Debt Securities of such series in definitive form in
exchange for the Registered Global Securities or Securities
representing such Debt Securities.
Further, if ConAgra so specifies with respect to the Debt
Securities of a series, an owner of a beneficial interest in a
Registered Global Securities representing such Debt Securities
may, on terms acceptable to ConAgra and the Depositary for such
Registered Global Securities, receive such Debt Securities in
definitive form. In any such instance, an owner of a beneficial
interest in such a Registered Global Securities will be entitled
to have Debt Securities equal in principal amount to such
beneficial interest registered in its name and will be entitled
to physical delivery of such Debt Securities in definitive form.
Debt Securities so issued in definitive form will, except as set
forth in the applicable Prospectus Supplement, be issued in
denominations of $100,000 and integral multiples of $1,000 in
excess thereof and will be issued in registered form only without
coupons.
Certain Covenants of ConAgra in the Senior Indenture
The following restrictions apply to the Offered Debt
Securities issued under the Senior Indenture unless the
Prospectus Supplement provides otherwise.
Limitations on Liens
The Senior Indenture states that, unless the terms of any
series of Debt Securities provide otherwise, ConAgra will not and
will not permit any Consolidated Subsidiary to issue, assume or
guarantee any indebtedness for money borrowed ("Secured
Indebtedness") secured by a mortgage, pledge security interest or
other lien (a "Lien") upon or with respect to any Principal
Property or on the capital stock of any Consolidated Subsidiary
that owns Principal Property unless (a) ConAgra makes effective
provision whereby the Offered Debt Securities shall be secured by
such Lien equally and ratably with any and all other obligations
and indebtedness thereby secured, or (b) the aggregate amount of
all such Secured Indebtedness of ConAgra and its Consolidated
Subsidiaries, together with all Attributable Debt (as defined in
the Indenture) in respect of Sale and Lease-Back Transactions
existing at such time (with the exception of transactions which
are not subject to the limitation described in "Limitation on
Sale and Lease-Back Transactions" below), would not exceed 10% of
the net tangible assets (as defined in the Indenture) of ConAgra
and the Consolidated Subsidiaries, as shown on the audited
consolidated balance sheet contained in the latest annual report
to stockholders of ConAgra.
Such limitation will not apply to (a) any Lien existing on
any Principal Property at the date of the Indenture, (b) any Lien
created by a Consolidated Subsidiary in favor of ConAgra or any
wholly-owned Consolidated Subsidiary, (c) any Lien existing on
any asset of any corporation at the time such corporation becomes
a Consolidated Subsidiary or at the time such corporation is
merged or consolidated with or into ConAgra or a Consolidated
Subsidiary, (d) any lien on any asset existing at the time of
acquisition thereof, (e) any lien on any asset securing Secured
Indebtedness incurred or assumed for the purpose of financing all
or any part of the cost of acquiring or improving such asset, if
such Lien attaches to such asset concurrently with or without 180
days after the acquisition or improvement thereof, (f) any Lien
incurred in connection with pollution control, industrial revenue
or any similar financing or (g) any refinancing, extension,
renewal or replacement of any of the Liens described in this
paragraph if the principal amount of the Secured Indebtedness
secured thereby is not increased and is not secured by any
additional assets.
The Senior Indenture defines the term "Principal Property"
to mean, as of any date, any building structure or other facility
together with the land upon which it is erected and fixtures
comprising a part thereof, used primarily for manufacturing,
processing or production, in each case located in the United
States, and owned or leased or to be owned or leased by ConAgra
or any Consolidated Subsidiary, and in each case the net book
value of which as of such date exceeds 2% of the net tangible
assets (as defined in the Indenture) of ConAgra and the
Consolidated Subsidiaries, as shown on the audited consolidated
balance sheet contained in the latest annual report to
stockholders of ConAgra, other than any such land, building,
structure or other facility or portion thereof which, in the
opinion of the Board of Directors of ConAgra, is not of material
importance to the business conducted by ConAgra and its
Consolidated Subsidiaries, considered as one enterprise.
The Senior Indenture defines the term "Consolidated
Subsidiary" to mean a subsidiary of ConAgra the accounts of which
are consolidated with those of ConAgra in accordance with
generally accepted accounting principles. (Section 3.6)
Limitation on Sale and Lease-Back Transactions
The Senior Indenture states that, unless the terms of any
series of Debt Securities provide otherwise, neither ConAgra nor
any Consolidated Subsidiary may enter into any arrangement with
any person (other than ConAgra) providing for the leasing by
ConAgra or a Consolidated Subsidiary of any Principal Property
(except for temporary leases for a term of not more than three
years), which property has been or is to be sold or transferred
by ConAgra or a Consolidated Subsidiary to such person (herein
referred as a "Sale and Lease-Back Transaction"). (Sections 3.6
and 3.7)
Such limitation will not apply to any Sale and Lease-Back
Transaction if (a) the net proceeds to ConAgra or such
Consolidated Subsidiary from the sale or transfer equal or exceed
the fair value (as determined by the Board of Directors of
ConAgra) of the property so leased, (b) ConAgra or such
Consolidated Subsidiary would be entitled to incur indebtedness
secured by a Lien on the property to be leased as described in
"Limitation on Liens" above or (c) ConAgra, within 90 days of the
effective date of any such Sale and Lease-Back Transaction,
applies an amount equal to the fair value (as determined by the
Board of Directors of ConAgra) of the property so leased to the
retirement of Funded Indebtedness of ConAgra. (Section 3.7)
Subordination Under the Subordinated Indenture
The Debt Securities issued under the Subordinated Indenture
will be subordinate and junior in right of payment, to the extent
and in the manner set forth in the Subordinated Indenture, to all
"Senior Indebtedness" of ConAgra. The Subordinated Indenture
defines "Senior Indebtedness" as obligations (other than non-
recourse obligations or Debt Securities issued under the
Subordinated Indenture) of, or guaranteed or assumed by, ConAgra
for borrowed money or evidenced by bonds, debentures, notes or
other similar instruments, and amendments, renewals, extensions,
modifications and refundings of any such indebtedness or
obligation, whether existing as of the date of the Subordinated
Indenture or subsequently incurred by ConAgra. (Section 1.1 and
Article Thirteen)
In the event (a) of any insolvency or bankruptcy
proceedings, or any receivership, liquidation, or any proceedings
for liquidation, dissolution or other winding up of ConAgra or a
substantial part of its property, whether or not involving
insolvency or bankruptcy, or (b) that (i) a default shall have
occurred with respect to the payment of principal of (and
premium, if any) or interest on or other monetary amounts due and
payable on any Senior Indebtedness or (ii) there shall have
occurred an event of default (other than a default in the payment
of principal (or premium, if any) or interest, or other monetary
amounts due and payable) with respect to any Senior Indebtedness,
as defined therein or in the instrument under which the same is
outstanding, permitting the holder or holders thereof to
accelerate the maturity thereof (with notice or lapse of time, or
both), and such event of default shall have continued beyond the
period of grace, if any, in respect thereof, and, in the cases of
subclauses (i) and (ii) of this clause (b), such default or event
of default shall not have been cured or waived or shall not have
ceased to exist, or (c) that the principal of or the accrued
interest on the Debt Securities of any series shall have been
declared due and payable upon an Event of Default pursuant to
Section 5.1 of the Subordinated Indenture and such declaration
shall not have been rescinded and annulled as provided therein,
then the holders of all Senior Indebtedness shall first be
entitled to receive payment of the full amount due thereon, or
provision shall be made for such payment in money or money's
worth, before the holders of any of the Debt Securities issued
under the Subordinated Indenture are entitled to receive a
payment on account of the principal of (and premium, if any) or
any interest on the indebtedness evidenced by the Debt
Securities. (Section 13.1)
Events of Default
An Event of Default will occur under the applicable
Indenture with respect to Debt Securities of any series if (a)
ConAgra shall fail to pay when due any installment of interest on
any of the Debt Securities of such series and such default shall
continue for 30 days, (b) ConAgra shall fail to pay when due all
or any part of the principal of (and premium, if any, on) any of
the Debt Securities of such series (whether at maturity, upon
redemption, upon acceleration or otherwise), (c) ConAgra shall
fail to perform or observe any other term, covenant or agreement
contained in the Indenture (other than a covenant included in the
Indenture solely for the benefit of a series of Debt Securities
other than such series) for a period of 90 days after written
notice thereof, as provided in the Indenture, (d) certain events
of bankruptcy, insolvency or reorganization shall have occurred
or (e) ConAgra has not complied with any other covenant the
noncompliance with which would specifically constitute an Event
of Default with respect to Debt Securities of such series.
(Section 5.1)
Each Indenture provides that (a) if an Event of Default due
to the default in payment of principal of, or interest on, any
series of Debt Securities or due to the default in the
performance or breach of any other covenant or warranty of
ConAgra applicable to the Debt Securities of such series but not
applicable to all outstanding Debt Securities shall have occurred
and be continuing, either the Trustee or the holders of 25% in
principal amount of the Debt Securities of such series may then
declare the principal of all Debt Securities of such series and
interest accrued thereon to be due and payable immediately
(provided, with respect to Debt Securities issued under the
Subordinated Indenture, that the payment of principal and
interest on such Debt Securities of such series shall remain
subordinated to the extent provided in Article Thirteen of the
Subordinated Indenture), and (b) if an Event of Default due to
default in the performance of any other of the covenants or
agreements in the Indenture applicable to all outstanding Debt
Securities or due to certain events of bankruptcy, insolvency and
reorganization of ConAgra, shall have occurred and be continuing,
either the Trustee or the holders of 25% in principal amount of
all Debt Securities then outstanding (treated as one class) may
declare the principal of all Debt Securities and interest accrued
thereon to be due and payable immediately (provided, with respect
to Debt Securities issued under the Subordinated Indenture, that
the payment of principal and interest on such Debt Securities of
such series shall remain subordinated to the extent provided in
Article Thirteen of the Subordinated Indenture), but upon certain
conditions such declarations may be annulled and past defaults
may be waived (except a continuing default in payment of
principal of (or premium, if any) or interest on the Debt
Securities) by the holders of a majority in principal amount of
the Debt Securities of such series (or all series, as the case
may be) then outstanding. (Sections 5.1 and 5.10)
The holders of a majority in principal amount of the
outstanding Debt Securities of any series may direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power
conferred on the Trustee, provided that such direction shall not
be in conflict with any rule of law or the applicable Indenture.
(Section 5.9) Before proceeding to exercise any right of power
under the applicable Indenture at the direction of such holders,
the Trustee shall be entitled to receive from such holders
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with any
such direction. (Section 5.6)
ConAgra will be required to furnish to the Trustee under
each Indenture annually a statement of certain officers of
ConAgra to the effect that, to the best of their knowledge,
ConAgra is not in default of the performance of the terms of the
Indenture or, if they have knowledge that ConAgra is in default,
specifying such default. (Section 3.5)
Each Indenture provides that no holder of Debt Securities
issued under the Indenture may institute any action against
ConAgra under the Indenture (except actions for payment of
overdue principal or interest) unless (a) the holder previously
shall have given to the Trustee written notice of default and
continuance thereof and unless the holders of not less than 25%
in principal amount of the Debt Securities of such affected
series issued under the Indenture and then outstanding shall have
requested the Trustee to institute such action and shall have
offered the Trustee reasonable indemnity, (b) the Trustee shall
not have instituted such action within 60 days of such request,
and (c) the Trustee shall not have received direction
inconsistent with such written request by the holders of a
majority in principal amount of the Debt Securities of such
affected series issued under the Indenture and then outstanding.
(Sections 5.6 and 5.9)
Each Indenture requires the Trustee to give to all holders
of outstanding Debt Securities of any series notice of any
default by ConAgra with respect to that series, unless such
default shall have been cured or waived; however, except in the
case of a default in the payment of principal of (and premium, if
any) or interest on any outstanding Debt Securities of that
series or in the payment of any sinking fund installment, the
Trustee is entitled to withhold such notice in the event that the
board of directors, the executive committee or a trust committee
of directors or certain officers of the Trustee in good faith
determines that withholding such notice is in the interest of the
holders of the outstanding Debt Securities of that series.
(Section 5.11)
Defeasance and Discharge
The following defeasance provision will apply to the Offered
Debt Securities unless the Prospectus Supplement provides
otherwise.
The Indenture provides that, unless the terms of any series
of Debt Securities provide otherwise, ConAgra will be discharged
from obligations in respect of the Indenture and the outstanding
Debt Securities of such series (including, with respect to the
Senior Indenture, its obligation to comply with the provisions
referred to under "Certain Covenants of ConAgra", if applicable,
but excluding under each Indenture certain other obligations,
such as the obligation to pay principal of (and premium, if any)
and interest on the Debt Securities of such series then
outstanding and obligations to register the transfer or exchange
of such outstanding Debt Securities and to replace stolen, lost
or mutilated certificates), upon the irrevocable deposit, in
trust, of cash or, in the case of Debt Securities payable only in
U.S. dollars, U.S. Government Obligations (as defined in the
Indenture) which through the payment of interest and principal
thereof in accordance with their terms will provide cash in an
amount sufficient to pay any installment of principal of (and
premium, if any) and interest on and mandatory sinking fund
payments in respect of such outstanding Debt Securities on the
stated maturity of such payments in accordance with the terms of
the Indenture and such outstanding Debt Securities provided that
ConAgra has received an opinion of counsel or officers'
certificate to the effect that such a discharge will not be
deemed, or result in, a taxable event with respect to holders of
the outstanding Debt Securities of such series and that certain
other conditions are met. In addition, with respect to the
Subordinated Indenture, in order to be discharged (i) no event or
condition shall exist that, pursuant to certain provisions
described under "Subordination" above, would prevent ConAgra from
making payments of principal of (and premium, if any) and
interest on the Debt Securities issued under the Subordinated
Indenture at the date of the irrevocable deposit referred to
above or at any time during the period ending on the 121st day
after such deposit date, and (ii) ConAgra delivers to the Trustee
under the Subordinated Indenture an opinion of counsel to the
effect that (a) the trust funds will not be subject to any rights
of holders of Senior Indebtedness, and (b) after the 121st day
following the deposit, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally except that
if a court were to rule under any such law in any case or
proceeding that the trust refunds remained the property of
ConAgra, then the Trustee under the Subordinated Indenture and
the holders of the Debt Securities issued under the Subordinated
Indenture would be entitled to certain rights as secured
creditors in such trust funds. (Section 10.1)
Modification of the Indenture
Each Indenture provides that ConAgra and the Trustee may
enter into supplemental indentures without the consent of the
holders of Debt Securities to: (a) secure any Debt Securities,
(b) evidence the assumption by a successor corporation of the
obligations of ConAgra, (c) add covenants for the protection of
the holders of Debt Securities, (d) cure any ambiguity or correct
any inconsistency in the Indenture, (e) establish the form or
terms of Debt Securities of any series, and (f) evidence the
acceptance of appointment by a successor trustee. (Section 8.1)
Each Indenture also contains provisions permitting ConAgra
and the Trustee, with the consent of the holders of not less than
a majority in principal amount of Debt Securities of each series
then outstanding and affected, to add any provisions to, or
change in any manner or eliminate any of the provisions of, the
Indenture or modify in any manner the rights of the holders of
the Debt Securities of each series so affected, provided that
ConAgra and the Trustee may not, without the consent of the
holder of each outstanding Debt Security affected thereby, (a)
extend the stated maturity of the principal of any Debt Security,
or reduce the principal amount thereof or reduce the rate or
extend the time of payment of interest thereon, or reduce any
amount payable on redemption thereof or change the currency in
which the principal thereof (including any amount in respect of
original issue discount) or interest thereon is payable or reduce
the amount of any original issue discount security payable upon
acceleration or provable in bankruptcy or alter certain
provisions of the Indenture relating to Debt Securities not
denominated in U.S. dollars or impair the right to institute suit
for the enforcement of any payment on any Debt Security when due
or (b) reduce the aforesaid percentage in principal amount of
Debt Securities of any series the consent of the holders of which
is required for any such modification. (Section 8.2)
In addition, the Subordinated Indenture may not be amended
to alter the subordination of any of the outstanding Debt
Securities issued thereunder without the written consent of each
holder of Senior Indebtedness then outstanding that would be
adversely affected thereby. (Section 8.6 of the Subordinated
Indenture).
Consolidation, Merger, Conveyance or Transfer
ConAgra may, without the consent of the Trustee under the
applicable Indenture or the holders of Debt Securities,
consolidate or merge with, or convey, transfer or lease its
properties and assets substantially as an entirety to any other
corporation, provided that any successor corporation is organized
under the laws of the United States of America or any state
thereof and expressly assumes all obligations of ConAgra under
the Debt Securities and that certain other conditions are met,
and, thereafter, except in the case of a lease, ConAgra shall be
relieved of all obligations thereunder. (Article Nine)
Applicable Law
The Debt Securities and the Indenture will be governed by
and construed in accordance with the laws of the State of New
York. (Section 11.8)
Concerning the Trustee
The Chase Manhattan Bank (National Association) is the
Trustee under the Senior Indenture and is also the trustee under
a prior indenture between ConAgra and The Chase Manhattan Bank
(National Association). The First Trust National Association is
the Trustee under the Subordinated Indenture. First Bank System,
Inc. owns substantially all of the capital stock of such Trustee
and First Bank National Association. The Chase Manhattan Bank
(National Association) and First Bank National Association are
among a number of banks with which ConAgra and its subsidiaries
maintain ordinary banking relationships and with which ConAgra
and its subsidiaries maintain credit facilities.
PLAN OF DISTRIBUTION
Offered Securities may be sold (i) through agents, (ii)
through underwriters including, Smith Barney Shearson Inc., (iii)
through dealers or (iv) directly to purchasers (through a
specific bidding or auction process or otherwise).
Offers to purchase Offered Securities may be solicited by
agents designated by ConAgra from time to time. Any such agent
involved in the offer or sale of the Offered Securities will be
named, and any commissions payable by ConAgra to such agent will
be set forth, in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be
acting on a best efforts basis for the period of its appointment.
Any such agent may be deemed to be an underwriter, as that term
is defined in the Securities Act of 1933, as amended (the "1933
Act") of the Offered Securities so offered and sold. Agents may
be entitled under agreements which may be entered into with
ConAgra to indemnification by ConAgra against certain
liabilities, including liabilities under the 1933 Act, and may be
customers of, engaged in transactions with or perform services
for ConAgra in the ordinary course of business.
If an underwriter or underwriters are utilized in the sale
of Offered Securities, ConAgra will execute an underwriting
agreement with such underwriter or underwriters at the time an
agreement for such sale is reached, and the names of the specific
managing underwriter or underwriters, as well as any other
underwriters, and the terms of the transactions, including
compensation of the underwriters and dealers, if any, will be set
forth in the Prospectus Supplement, which will be used by the
underwriters to make resales of Offered Securities. The
underwriters may be entitled, under the relevant underwriting
agreement, to indemnification by ConAgra against certain
liabilities, including liabilities under the 1933 Act and such
underwriters or their affiliates may be customers of, engage in
transaction with or perform service for, ConAgra in the ordinary
course of business. Only underwriters named in the Prospectus
Supplement are deemed to be underwriters in connection with the
Offered Securities.
If a dealer is utilized in the sale of Offered Securities,
ConAgra will sell such Offered Securities to the dealer, as
principal. The dealer may then resell such Offered Securities to
the public at varying prices to be determined by such dealer at
the time of resale. Dealers may be entitled, under agreements
which may be entered into with ConAgra, to indemnification by
ConAgra against certain liabilities, including liabilities under
the 1933 Act and such dealers or their affiliates may be
customers of, extend credit to or engage in transactions with or
perform services for ConAgra in the ordinary course of business.
The name of the dealer and the terms of the transactions will be
set forth in the Prospectus Supplement relating thereto.
Offers to purchase Offered Securities may be solicited
directly by ConAgra and sales thereof may be made by ConAgra
directly to institutional investors or others. The terms of any
such sales, including the terms of any bidding or auction
process, if utilized, will be described in the Prospectus
Supplement relating thereto.
Offered Securities may also be offered and sold, if so
indicated in the Prospectus Supplement, in connection with a
remarketing upon their purchase, in accordance with a redemption
or repayment pursuant to their terms, or otherwise, by one or
more firms ("remarketing firms"), acting as principals for their
own accounts or as agents for ConAgra. Any remarketing firm will
be identified and the terms of its agreement, if any, with
ConAgra and its compensation will be described in the Prospectus
Supplement. Remarketing firms may be deemed to be underwriters
in connection with the Debt Securities remarketed thereby.
Remarketing firms may be entitled under agreements which may be
entered into with ConAgra to indemnification by ConAgra against
certain liabilities, including liabilities under the 1933 Act,
and may be customers of, engage in transactions with or perform
services for ConAgra in the ordinary course of business.
If so indicated in the Prospectus Supplement, ConAgra will
authorize agents and underwriters to solicit offers by certain
institutions to purchase Debt Securities from ConAgra at the
public offering price set forth in the Prospectus Supplement
pursuant to Delayed Delivery Contracts ("Contracts") providing
for payment and delivery on the date stated in the Prospectus
Supplement. Such Contracts will be subject to only those
conditions set forth in the Prospectus Supplement. A commission
indicated in the Prospectus Supplement will be paid to
underwriters and agents soliciting purchases of Debt Securities
pursuant to Contracts accepted by ConAgra.
EXPERTS
The financial statements and related financial statement
schedules incorporated in this prospectus by reference from
ConAgra's annual report on Form 10-K for the year ended May 30,
1993 have been audited by Deloitte & Touche, independent
auditors, as stated in their reports, which are incorporated
herein by reference, and have been so incorporated in reliance
upon the reports of such firm given upon their authority as
experts in accounting and auditing.
Documents incorporated herein by reference in the future
will include financial statements, related schedules (if
required) and auditors' reports, which financial statements and
schedules will have been examined to the extent and for the
period set forth in such reports by the firm or firms rendering
such reports, and, to the extent so examined and consent to
incorporation by reference is given, will be incorporated herein
by reference in reliance upon such reports given upon the
authority of such firms as experts in accounting and auditing.
LEGAL MATTERS
The validity of the Offered Securities other than Preferred
Securities offered hereby has been passed upon for ConAgra by
McGrath, North, Mullin & Kratz, P.C., Omaha, Nebraska 68102.
The validity of the Preferred Securities offered hereby have
been passed upon for ConAgra and ConAgra Capital by Dickinson,
Mackaman, Tyler & Hagen, P.C., Des Moines, Iowa.
Certain legal matters with respect to the Offered Securities
have been passed upon for the underwriters by Davis Polk &
Wardwell, New York, New York. Tax matters described under
"Certain United States Federal Income Tax Consequences" in this
Prospectus relating to the Preferred Securities have been passed
upon by Davis Polk & Wardwell, New York, New York.
No dealer, salesperson or other individual has been
authorized to give any information or to make any
representations, other than those contained in or incorporated by
reference in this Prospectus Supplement or the accompanying
Prospectus, in connection with the offer contained in this
Prospectus Supplement and the accompanying Prospectus, and, if
given or made, any such information or representation must not be
relied upon as having been authorized by the Company and ConAgra
or any underwriter, dealer or agent. This Prospectus Supplement
and the accompanying Prospectus do not constitute an offer to
sell or a solicitation of an offer to buy any of the securities
offered hereby by anyone in any jurisdiction in which such offer
or solicitation is not authorized or in which the person making
such offer or solicitation is not qualified to do so or to any
person to whom it is unlawful to make such offer or solicitation.
Neither the delivery of this Prospectus Supplement and the
accompanying Prospectus nor any sale made hereunder shall, under
any circumstances, create any implication that there has been no
change in the affairs of the Company or ConAgra since the date
hereof.
TABLE OF CONTENTS
Prospectus Supplement Page
Prospectus Supplement Summary
ConAgra
ConAgra Capital, L.C.
Certain Investment Considerations
Selected Financial Data of ConAgra
Use of Proceeds
Capitalization
Certain Terms of the Series A
Preferred Securities
Certain Terms of the Series A
Debentures
Underwriting
Validity of Securities
Prospectus
Available Information
Incorporation of Certain Information
by Reference
The Company
ConAgra Capital
Use of Proceeds
Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends
Description of Preferred Securities
Description of the Guarantee
Description of the Debentures
Certain United States Federal Income
Tax Consequences
Description of the Indentures
Plan of Distribution
Experts
Legal Matters
____________ Preferred Securities
ConAgra Capital, L.C.
_____% Series A Cumulative
Preferred Securities
(liquidation preference $25 per security)
guaranteed on a subordinated basis to the
extent set forth herein by
ConAgra, Inc.
PROSPECTUS SUPPLEMENT
Dated , 1994
Smith Barney Shearson Inc.
Merrill Lynch & Co.
Bear, Stearns & Co. Inc.
Dean Witter Reynolds Inc.
A.G. Edwards & Sons, Inc.
Goldman, Sachs & Co.
Lehman Brothers
Morgan Stanley & Co. Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
Salomon Brothers Inc
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following sets forth estimated expenses to be incurred
by ConAgra in connection with the offering described in this
Registration Statement:
Item Amount
Registration Fee $155,173
Blue Sky Fees and Expenses $ 7,500
Printing Expenses $ 45,000
Listing Fees $ 86,300
Accounting Fees and Expenses $ 20,000
Trustee Fees $ 3,000
Legal Fees and Expenses $ 75,000
Rating Agency Fees $ 70,000
Miscellaneous Expenses $ 13,027
--------
TOTAL $475,000
Item 15. Indemnification of Directors and Officers.
Pursuant to Article V of the Certificate of Incorporation of
ConAgra, ConAgra shall, to the extent required, and may, to the
extent permitted, by Section 102 and Section 145 of the General
Corporation Law of the State of Delaware, as amended from time to
time, indemnify and reimburse all persons whom it may indemnify
and reimburse pursuant thereto. No director shall be liable to
ConAgra or its stockholders for monetary damages for breach of
fiduciary duty as a director with respect to acts or omissions
occurring on or after September 18, 1986. A director shall
continue to be liable for (i) any breach of a director's duty of
loyalty to ConAgra or its stockholders; (ii) acts or omissions
not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) paying a dividend or approving a
stock repurchase which would violate Section 174 of the General
Corporation Law of the State of Delaware; or (iv) any transaction
from which the director derived an improper personal benefit.
The by-laws of ConAgra provide for indemnification of
ConAgra officers and directors against all expenses, liabilities
or losses reasonably incurred or suffered by them, including
liability arising under the Securities Act of 1933, to the extent
legally permissible under Section 145 of the General Corporation
Law of the State of Delaware where any such person was, is, or is
threatened to be made a party to or is involved in any action,
suit or proceeding whether civil, criminal, administrative or
investigative, by reason of the fact such person was serving
ConAgra in such capacity. Generally, under Delaware law,
indemnification will only be available where an officer or
director can establish that such person acted in good faith and
in a manner such person reasonably believed to be in or not
opposed to the best interests of ConAgra.
ConAgra also maintains a director and officer insurance
policy which insures the officers and directors of ConAgra and
its subsidiaries against damages, judgments, settlements and
costs incurred by reason of certain wrongful acts committed by
such persons in their capacities as officers and directors.
Item 16. List of Exhibits.
Exhibit 1.1 - Form of Underwriting Agreement incorporated by
reference to ConAgra's Registration Statement on
Form S-3 (33-55626).
Exhibit 1.2 - Form of U.S. Distribution Agreement incorporated
by reference to ConAgra's Registration Statement
on Form S-3 (33-55626).
Exhibit 1.3 - Underwriting Agreement with respect to the
Preferred Securities.
Exhibit 4.1 - Indenture, dated as of October 8, 1990, between
ConAgra and The Chase Manhattan Bank (National
Association), Trustee incorporated by reference to
ConAgra's Registration Statement on Form S-3 (33-
36967).
Exhibit 4.2 - Forms of Notes incorporated by reference to
ConAgra's Registration Statement on Form S-3 (33-
55626).
Exhibit 4.4 - Articles of Organization of ConAgra Capital
and Articles of Correction.
Exhibit 4.5 - Revised Form of Operating Agreement of
ConAgra Capital .
Exhibit 4.6 - Revised Form of Resolutions
Establishing the Preferred Securities.
Exhibit 4.7 - Form of Indenture, dated as of March 10, 1994,
between ConAgra and First Trust National
Association, Trustee.
Exhibit 4.8 Form of First Supplemental Indenture, dated as of
March __, 1994 to the Form of Indenture, dated as
of March 10, 1994, between ConAgra and First Trust
National Association, Trustee.
Exhibit 5.1 - Opinion of McGrath, North, Mullin & Kratz, P.C.
Exhibit 5.2 - Opinion of Dickinson, Mackaman, Tyler & Hagen,
P.C.
Exhibit 8 - Opinion of Davis Polk & Wardwell with respect to
certain tax matters.
Exhibit 8.1 Supplemental Opinion of Davis Polk & Wardwell with
respect to certain tax matters.
Exhibit 10.1 - Revised Form of Payment and Guarantee
Agreement with respect to the Preferred
Securities.
Exhibit 10.2 - Form of Agreement as to Expenses and Liabilities
with respect to the Preferred Securities.
Exhibit 12 - Statement re: Computation of Ratio of Earnings to
Fixed Charges and Preferred Stock Dividends
incorporated by reference to Exhibit 12 of
ConAgra's Annual Report on Form 10-K for the
Fiscal Year ended May 30, 1993 and Exhibit A of
ConAgra's Quarterly Report on Form 10-Q for the
quarter ended November 28, 1993.
Exhibit 23.1 - Consent of Deloitte & Touche.
Exhibit 23.2 - Consent of McGrath, North, Mullin & Kratz, P.C.
(included in Exhibit 5.1).
Exhibit 23.3 - Consent of Davis Polk & Wardwell (included in
Exhibit 8 and Exhibit 8.1 ).
Exhibit 23.4 - Consent of Dickinson, Mackaman, Tyler & Hagen,
P.C. (included in Exhibit 5.2)
Exhibit 24 - Powers of Attorney.
Exhibit 25.1 - Statement of Eligibility and Qualification of the
Trustee under the Trust Indenture Act.
Exhibit 25.2 - Statement of Eligibility and Qualification of the
Trustee under the Trust Indenture Act.
_______________
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
registration statement to include any material
information with respect to the plan of distribution
not previously disclosed in the registration statement
or any material change to such information in the
registration statement.
(b) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-
effective amendment shall be deemed to be a new
registration statement relating to the securities
offered herein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(c) To remove from registration by means of a post-
effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(d) That, for the purposes of determining any liability
under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in the registration
statement shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(e) That, insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be
permitted to directors, officers or persons controlling
the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been informed that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed
in the Act and is therefore unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by the registrant
of expenses incurred or paid by a director, officer, or
controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in
connection with the securities being registered, the
registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the
question of whether such indemnification by it is
against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(f) That, for purposes of determining any liability under
the Securities Act of 1933, the information omitted
from the form of prospectus filed as a part of this
Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
of the Securities Act of 1933 shall be deemed to part
of this Registration Statement as of the time it was
declared effective.
(g) That, (i) for purposes of determining any liability
under the Securities Act of 1933, the information
omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A
and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act of 1933 shall be deemed to be
part of this registration statement as of the time it
was declared effective, and
(ii) For the purpose of determining any liability under
the Securities Act of 1933, each post-effective
amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to
the securities offered therein, and the offering of
such securities at that time shall be deemed to be the
initial bona fide offering thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant, ConAgra, Inc., a Delaware corporation, certifies
that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this
Amendment to Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Omaha,
State of Nebraska, on the 30th day of March, 1994.
CONAGRA, INC.
/s/ Philip B. Fletcher
By:____________________________
Philip B. Fletcher
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933
this Amendment to the Registration Statement has been signed
below by the following persons in the capacities with ConAgra,
Inc. indicated on the 30th day of March, 1994.
SIGNATURE TITLE
/s/ Philip B. Fletcher
__________________________________ Chief Executive Officer
Philip B. Fletcher
/s/ Stephen L. Key
__________________________________ Executive Vice President
Stephen L. Key and Chief Financial Officer
/s/ Dwight J. Goslee
__________________________________ Vice President and Controller
Dwight J. Goslee (Principal Accounting Officer)
C. M. Harper* Director
Robert A. Krane* Director
Gerald Rauenhorst* Director
Carl E. Reichardt* Director
Ronald W. Roskens* Director
Walter Scott, Jr.* Director
William G. Stocks* Director
Frederick B. Wells* Director
Thomas R. Williams* Director
Clayton K. Yeutter* Director
*Philip B. Fletcher, by signing his name hereto, signs the
Amendment to Registration Statement on behalf of each of the
persons indicated. A Power-of-Attorney authorizing Philip B.
Fletcher to sign this Amendment to Registration Statement on
behalf of each of the indicated Directors of ConAgra, Inc. has
been previously filed as Exhibit 24.
/s/ Philip B. Fletcher
By:________________________________
Philip B. Fletcher
Attorney-in-Fact
Pursuant to the requirements of the Securities Act of 1933,
ConAgra Capital, L.C. certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this amendment to registration statement
to be signed on its behalf by the undersigned, thereunto duly
authorized in the city of Omaha and state of Nebraska, on the
30th day of March, 1994.
ConAgra Capital L.C.
CP Nebraska, Inc.,
as Managing Member
/s/ Steven L. Key
By:____________________________
Stephen L. Key
President and Chief
Executive Officer
HW Nebraska, Inc.,
as Managing Member
/s/ Steven L. Key
By:____________________________
Stephen L. Key
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this amendment to registration statement has been signed by the
following persons in the capacities with ConAgra Capital, L.C.
and the Managing Members indicated and on the 30th day of March,
1994.
SIGNATURE TITLE
/s/ Stephen L. Key
__________________________________ President and Chief Executive
Stephen L. Key Officer of CP Nebraska, Inc.
(Principal Executive Officer)
/s/ James P. O'Donnell
__________________________________ Vice President, Finance/
James P. O'Donnell Treasurer and Chief Financial
Officer of CP Nebraska, Inc.
(Principal Financial and
Accounting Officer)
/s/ Stephen L. Key
__________________________________ President and Chief Executive
Stephen L. Key Officer of HW Nebraska, Inc.
(Principal Executive Officer)
/s/ James P. O'Donnell
__________________________________ Vice President, Finance/
James P. O'Donnell Treasurer and Chief Financial
Officer of HW Nebraska, Inc.
(Principal Financial and
Accounting Officer)
INDEX OF EXHIBITS
Number Description Page
No.
Exhibit 1.1 - Form of Underwriting Agreement
incorporated by reference to
ConAgra's Registration Statement on
Form S-3 (33-55626).
Exhibit 1.2 - Form of U.S. Distribution Agreement
incorporated by reference to
ConAgra's Registration Statement on
Form S-3 (33-55626).
Exhibit 1.3 - Form of Underwriting Agreement with
respect to the Preferred Securities. *
Exhibit 4.1 - Indenture, dated as of October 8,
1990, between ConAgra and The Chase
Manhattan Bank (National
Association), Trustee incorporated
by reference to ConAgra's
Registration Statement on Form S-3
(33-36967).
Exhibit 4.2 - Forms of Notes incorporated by
reference to ConAgra's Registration
Statement on Form S-3 (33-55626).
Exhibit 4.4 - Articles of Organization of ConAgra
Capital and Articles of Correction. *
Exhibit 4.5 - Revised Form of Operating
Agreement of ConAgra Capital ...........
Exhibit 4.6 - Revised Form of Resolutions
Establishing the Preferred Securities ..
Exhibit 4.7 - Form of Indenture, dated as of
March 10, 1994, between ConAgra and
First Trust National Association,
Trustee. *
Exhibit 4.8 - Form of First Supplemental
Indenture, dated as of March __,
1994 to the Form of Indenture,
dated as of March 10, 1994, between
ConAgra and First Trust National
Association, Trustee ...................
Exhibit 5.1 - Opinion of McGrath, North, Mullin &
Kratz, P.C. *
Exhibit 5.2 - Opinion of Dickinson, Mackaman, Tyler &
Hagen, P.C. *
Exhibit 8 - Opinion of Davis Polk & Wardwell with
respect to certain tax matters *
Exhibit 8.1 - Supplemental Opinion of Davis Polk
& Wardwell with respect
to certain tax matters ....................
Exhibit 10.1 - Revised Form of Payment and Guarantee
Agreement with respect to the Preferred
Securities.
Exhibit 10.2 - Form of Agreement as to Expenses and
Liabilities with respect to the
Preferred Securities *
Exhibit 12 - Statement re: Computation of Ratio
of Earnings to Fixed Charges and
Preferred Stock Dividends
incorporated by reference to
Exhibit 12 of ConAgra's Annual
Report on Form 10-K for the Fiscal
Year ended May 30, 1993 and Exhibit
A of ConAgra's Quarterly Report on
Form 10-Q for the quarter ended
November 28, 1993.
Exhibit 23.1 - Consent of Deloitte & Touche *
Exhibit 23.2 - Consent of McGrath, North, Mullin &
Kratz, P.C. (included in
Exhibit 5.1).
Exhibit 23.3 - Consent of Davis Polk & Wardwell
(included in Exhibit 8 and
Exhibit 8.1 ).
Exhibit 23.4 - Consent of Dickinson, Mackaman, Tyler &
Hagen, P.C. (included in Exhibit 5.2)...
Exhibit 24 - Powers of Attorney *
Exhibit 25.1 - Statement of Eligibility and
Qualification of the Trustee under
the Trust Indenture Act *
Exhibit 25.2 - Statement of Eligibility and
Qualification of the Trustee under
the Trust Indenture Act *
____________________
* previously filed
Exhibit 4.5
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
dated as of March 11, 1994, by and among HW
Nebraska, Inc., a Nebraska corporation, CP
Nebraska, Inc., a Nebraska corporation, both
as Common Members (as defined herein) and as
the managing members (the "Managing
Members"), as signatories hereto and,
pursuant to the Articles of Organization
referred to below, the other non-signatory
members (collectively, the "Members") from
time to time of ConAgra Capital, L.C., an
Iowa limited liability company (the
"Company").
Preliminary Statement
The Managing Members, as Common Members, have formed
the Company under the Iowa Limited Liability Company Act (the
"Act") for the purpose of the Company issuing membership
interests (the "Membership Interests"), on the terms and
conditions set forth herein, and lending the net proceeds thereof
to ConAgra, Inc. ("ConAgra") in exchange for one or more
debentures (the "Debentures").
In that connection, the Managing Members and the
Preferred Members (as defined herein) desire to enter into a
written agreement, in accordance with Section 490A.703 of the
Act, as to the affairs of the Company and the conduct of its
business. Pursuant to the Articles of Organization of the
Company, the Preferred Members are bound by this Agreement.
Accordingly, in consideration of the mutual promises
made herein, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. Capitalized terms used but
not otherwise defined herein shall have the meanings assigned to
them in the Act.
ARTICLE II
General Provisions
SECTION 2.01. Company Name. The name of the Company
is "ConAgra Capital, L.C.". The name of the Company may be
changed from time to time by the Managing Members in their
discretion.
SECTION 2.02. Registered Office; Registered Agent. The
Company shall maintain a registered office in the State of Iowa
at, and the name and address of the Company's registered agent in
the State of Iowa is, The Prentice-Hall Corporation System, Inc.,
729 Insurance Exchange Building, Des Moines, Iowa 50309. Such
office and such agent may be changed from time to time by the
Managing Members in their discretion. The initial business
address and office of the Company shall be in care of ConAgra,
Inc., at the address of One ConAgra Drive, Omaha, Nebraska 68102-
5001.
SECTION 2.03. Nature of Business Permitted; Powers.
The primary purpose of the Company is to finance the business
operation of ConAgra and companies controlled by ConAgra.
Subject to the foregoing and in compliance with any requirements
necessary to remain eligible for exemption from the definition of
"investment company" under the Investment Company Act of 1940, as
amended, and exempt from the periodic reporting requirements
under the Securities Exchange Act of 1934, as amended, the
Company may carry on any lawful business, purpose or activity.
SECTION 2.04. Business Transactions of a Member or the
Managing Members with the Company. Subject to Section 490A.708
of the Act, the Managing Members or their affiliates may lend
money to, borrow money from, act as surety, guarantor or endorser
for, guarantee or assume one or more specific obligations of,
provide collateral for, and transact other business with, the
Company and, subject to other applicable law, shall have the same
rights and obligations with respect to any such matter as persons
who are not Managing Members or affiliates thereof.
SECTION 2.05. Fiscal Year. The fiscal year of the
Company for federal income tax purposes shall, except as
otherwise required in accordance with the Internal Revenue Code
of 1986, as amended (the "Code"), end on
December 31 of each year.
ARTICLE III
Members
SECTION 3.01. Admission of Members. (a) A person
shall be admitted as a Member, or shall become an assignee of a
Membership Interest or other rights or powers of a Member to the
extent assigned, and shall become bound by the terms of this
Agreement, without execution of this Agreement, if such person
(or a representative authorized by such person orally, in writing
or by other action such as payment for a Membership Interest)
complies with the conditions for becoming a Member or assignee,
as the case may be, as set forth in Section 3.01(b) and requests
(which request shall be deemed to have been made by such person
effective upon payment for its Membership Interest) that the
records of the Company reflect such admission or assignment.
The Company shall be promptly notified by any assignor
of any assignment. The Company will reflect admission of a
Member in the records of the Company as soon as is reasonably
practicable after either of the following events: (i) in the case
of a person acquiring a Membership Interest directly from the
Company, at the time of payment therefor, and (ii) in the case of
an assignment, upon notification thereof (the Company being
entitled to assume, in the absence of knowledge to the contrary,
that proper payment has been made by the assignee).
(b) Whether acquiring a Membership Interest directly
from the Company or by assignment, a person shall be admitted as
a Member upon the acquisition or assignment, as the case may be,
of such Membership Interest and the reflection of such person's
admission as a Member in the records of the Company. The consent
of any other Member shall not be required for the admission of a
Member.
SECTION 3.02. Classes and Voting. (a) The Membership
Interests of the Company shall be divided into two classes: (i)
Series Preferred Membership Interests ("Preferred Interests") and
(ii) Common Membership Interests ("Common Interests"). Members
holding Preferred Interests shall be referred to herein as
"Preferred Members", and Members holding Common Interests shall
be referred to herein as "Common Members". Common Interests
shall be non-assignable and non-transferable, and may only be
issued to and held by the Managing Members. Preferred Interests
shall be freely assignable and transferable.
(b) The Preferred Interests may be issued from time to
time in one or more series, the Membership Interests of each
series to have such relative rights, powers and duties as may
from time to time be established in a written action or actions
of the Managing Members providing for the issue of such series as
hereinafter provided. Authority is hereby expressly granted to
the Managing Members, subject to the provisions of this Section
3.02, to authorize the issue of one or more series of Preferred
Interests, and with respect to each such series to establish by a
written action or actions providing for the issue of such series:
(i) the maximum number of Preferred Interests to
constitute such series and the distinctive designation
thereof;
(ii) whether the Preferred Interests of such series
shall have voting rights and, if so, the terms of such
voting rights;
(iii) the periodic distribution rate, if any, on the
Preferred Interests of such series, the conditions and dates
upon which such distributions shall be payable, the dates
from which such distributions shall accrue, the preference
or relation which such distributions have with respect to
distributions payable on any other class or classes of
Membership Interests or on any other series of Preferred
Interests, and whether such distributions shall be
cumulative or noncumulative;
(iv) whether the Preferred Interests of such series
shall be subject to redemption by the Company, and, if made
subject to redemption, the times and other terms and
conditions of such redemption (including the amount and kind
of consideration to be received upon such redemption);
(v) the rights of the holders of Preferred Interests
of such series upon the liquidation, dissolution or winding
up of the Company;
(vi) whether or not the Preferred Interests of such
series shall be subject to the operation of a retirement or
sinking fund, and, if so, the extent to and manner in which
any such retirement or sinking fund shall be applied to the
purchase or redemption of the Preferred Interests of such
series for retirement or to other Company purposes and the
terms and provisions relative to the operation thereof;
(vii) whether or not the Preferred Interests of such
series shall be convertible into, or exchangeable for,
Membership Interests of any other class or classes, or of
any other series of Preferred Interests, or securities of
any other kind, including those issued by the Managing
Member or any of its affiliates, and if so convertible or
exchangeable, the price or prices or the rate or rates of
conversion or exchange and the method, if any, of adjusting
the same;
(viii) the limitations and restrictions, if any, to be
effective while any Preferred Interests of such series are
outstanding upon the payment of periodic distributions or
other distributions on, and upon the purchase, redemption or
other acquisition by the Company of, Common Interests or any
other series of Preferred Interests;
(ix) the conditions or restrictions, if any, upon the
creation of indebtedness of the Company or upon the issue of
any additional Membership Interests (including additional
Preferred Interests of such series or of any other series
ranking on a parity with or prior to the Membership
Interests of such series as to periodic distributions or
distribution of assets on liquidation, dissolution or
winding up);
(x) the times, prices and other terms and conditions
for the offering of the Preferred Interests;
(xi) the allocation of preferential profits or losses,
if any;
(xii) the circumstances under which a trustee may be
appointed as contemplated by Section 3.02(f); and
(xiii) any other relative rights, powers and duties as
shall not be inconsistent with this Section 3.02.
In connection with the foregoing and without limiting
the generality thereof and except as otherwise provided herein
(including, without limitation, in Sections 3.02(e) and 10.01),
the Managing Members are hereby expressly authorized to take any
action, including the amendment of this Agreement, without the
vote or approval of any Preferred Member, to create under the
provisions of this Agreement a class or group of Membership
Interests that was not previously outstanding.
An action or actions taken by the Managing Members
pursuant to the provisions of this paragraph (b) shall be deemed
an amendment and supplement to and part of this Agreement.
(c) All Preferred Interests of any one series shall
be identical with each other in all respects, except that
Preferred Interests of any one series issued at different times
may differ as to the dates from which periodic distributions, if
any, thereon shall be cumulative; and all series of Preferred
Interests shall rank equally and be identical in all respects,
except as permitted by the provisions of paragraph (b) of this
Section 3.02; and all Preferred Interests shall rank senior to
the Common Interests both as to periodic distributions and
distributions of assets upon liquidation dissolution or winding
up.
(d) In the event of any liquidation, dissolution or
winding up of the Company, the holders of Preferred Interests of
each series at the time outstanding will be entitled to receive
out of the assets of the Company legally available for
distribution to Members, before any distribution of assets is
made to holders of Common Interests or any other class of
interests ranking junior to such Preferred Interests as regards
participation in assets of the Company, but together with the
holders of Preferred Interests of any other series or any other
preferred interests of the Company outstanding ranking pari passu
with such Preferred Interests as regards participation in the
assets of the Company ("Capital Liquidation Parity Interests"),
an amount equal, in the case of the holders of the Preferred
Interests of such series, to the aggregate of the stated
liquidation preference for Preferred Interests of such series and
all accumulated and unpaid distributions (whether or not
declared) to the date of payment (the "Liquidation
Distribution"). If, upon any such liquidation, the Liquidation
Distributions can be paid only in part because the Company has
insufficient assets available to pay in full the aggregate
Liquidation Distributions and the aggregate maximum liquidation
distributions on Capital Liquidation Parity Interests, then the
amounts payable directly by the Company on the Preferred
Interests of such series and on such Capital Liquidation Parity
Interests shall be paid on a pro rata basis, so that
(i) (x) the aggregate amount paid as Liquidation
Distributions on the Preferred Interests of such series
bears to (y) the aggregate amount paid as liquidation
distributions on Capital Liquidation Parity Interests the
same ratio as
(ii) (x) the aggregate Liquidation Distribution bears
to (y) the aggregate maximum liquidation distributions on
Capital Liquidation Parity Interests.
For the purposes of this paragraph (d), the voluntary sale,
conveyance, exchange or transfer (for cash, shares of stock,
securities, or other consideration) of all or substantially all
the property or assets of the Company shall be deemed a voluntary
liquidation, dissolution or winding up of the Company, but a
consolidation or merger of the Company with one or more other
limited liability companies or corporations shall not be deemed
to be a liquidation, dissolution or winding up, voluntary or
involuntary.
(e) Except as shall be otherwise established herein or
in the action or actions of the Managing Members providing for
the issue of any series of Preferred Interests and except as
otherwise required by the Act, the Preferred Members holding such
Preferred Interests shall have, with respect to such Preferred
Interests, no right or power to vote on any question or matter or
in any proceeding or to be represented at, or to receive notice
of, any meeting of Members. Notwithstanding the foregoing, if
any resolution is proposed for adoption by the Members of the
Company providing for, or the Managing Members propose to take
any action to effect,
(x) any variation or abrogation of the rights,
preferences and privileges of the Preferred Interests of any
series by way of amendment of the Agreement or otherwise
(including, without limitation, the authorization or
issuance of any interests in the Company ranking, as to
participation in the profits or assets of the Company,
senior to the Preferred Interests) which variation or
abrogation adversely affects the Members of Preferred
Interests of such series,
(y) the liquidation, dissolution or winding up of the
Company, or
(z) the commencement of any bankruptcy, insolvency,
reorganization or other similar proceeding involving the
Company in the United States or any state thereof,
then the Members holding outstanding Preferred Interests of such
series (and, in the case of a resolution described in clause (x)
above which would adversely affect the rights, preferences or
privileges of any Capital Dividend Parity Interests or any
Capital Liquidation Parity Interests, such Capital Dividend
Parity Interests or such Capital Liquidation Parity Interests, as
the case may be, or, in the case of any resolution described in
clause (y) above, all Capital Liquidation Parity Interests or, in
the case of any resolution described in clause (z) above, other
than holders of any Preferred Interests of such series that are
also creditors of ConAgra or any of its subsidiaries) will be
entitled to vote together as a class on such resolution or action
of the Managing Members (but not any other resolution or action)
and such resolution or action shall not be effective except with
the approval of the holders of 66 2/3% in stated liquidation
preference of such outstanding Preferred Interests, provided that
no such resolution or action shall, without the consent of each
Preferred Member affected thereby, (1) change the terms
established pursuant to Section 3.02(b)(iii), (iv), (v), (vi),
(vii), (viii), (xi) or (xii) in a manner adverse to such
Preferred Member or (2) reduce the above-stated percentage of
stated liquidation preference necessary to approve such action or
(3) amend the provisions of Section 3.02(f); provided further,
however, that no such approval shall be required under clauses
(y) and (z) if the liquidation, dissolution or winding up of the
Company is proposed or initiated upon the initiation of
proceedings, or after proceedings have been initiated, for the
liquidation, dissolution, or winding up of either of the Managing
Members.
(f) If (i) the Company fails to pay distributions in
full on the Preferred Interests of any series for 18 consecutive
monthly periods, (ii) an Event of Default (as defined in the
Debentures) occurs and is continuing on the Debentures, or (iii)
ConAgra is in default on any of its payment or other obligations
under the Payment and Guarantee Agreement (the "Guarantee") to be
executed and delivered by ConAgra in respect of the issuance of
the Preferred Interests, then the holders of a majority in stated
liquidation preference of the outstanding Preferred Interests of
all series having the right to vote for the appointment of a
trustee in such event, acting as a single class, shall be
entitled to appoint and authorize a trustee to enforce the
Company's rights under the Debentures against ConAgra, enforce
the obligations undertaken by ConAgra under the Guarantee and
declare and pay distributions on the Preferred Interests. For
purposes of determining whether the Company has failed to pay
distributions in full for 18 consecutive monthly distribution
periods, distributions shall be deemed to remain in arrears,
notwithstanding any payments in respect thereof, until full
cumulative distributions have been or contemporaneously are
declared and paid with respect to all monthly distribution
periods terminating on or prior to the date of payment of such
full cumulative distributions. Not later than 30 days after such
right to appoint a trustee arises, the Managing Members shall
convene a meeting for the purpose of appointing a trustee. If
the Managing Members fail to convene such meeting within such 30-
day period, the holders of 10% in stated liquidation preference
of the outstanding Preferred Interests of all series having the
right to vote for the appointment of a trustee in such event,
acting as a single class, shall be entitled to convene such
meeting. Any such trustee so appointed shall vacate office
immediately, subject to the applicable terms of all such
Preferred Interests, if the Company shall have paid in full all
accumulated and unpaid distributions on the Preferred Interests
of such series or such default or breach by ConAgra shall have
been cured.
(g) All Common Interests shall be identical with each
other in every respect. The Common Interests shall entitle the
holders thereof to one vote for each such Common Interest upon
all matters upon which Common Members have the right to vote.
SECTION 3.03. Liability of Members. (a) Except as
otherwise provided in Section 3.03(b) below, the debts,
obligations and liabilities of the Company, whether arising in
contract, tort or otherwise, shall be solely the debts,
obligations and liabilities of the Company; and no Member of the
Company, other than the Managing Members as described in Section
3.03(b), shall be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being
a Member.
(b) The Common Members shall have unlimited liability
for the debts, obligations and liabilities of the Company,
whether arising in contract, tort or otherwise, and shall be
obligated personally for all such debts, obligations and
liabilities of the Company, in the same way and to the same
extent as if the Company were a partnership under the Iowa
Uniform Partnership Act, Chapter 486 of the Code of Iowa, of
which the Managing Members were general partners.
SECTION 3.04. Events of Cessation of Membership. A
person shall cease to be a Member only upon the lawful assignment
of its Membership Interests (including any redemption, exchange
or other repurchase by the Company or the Managing Members), and
the compliance, in cases other than any such redemption, exchange
or repurchase, of the assignee with the provisions of Section
3.01.
SECTION 3.05. Access to and Confidentiality of
Information; Records. (a) Each Member shall have the right,
subject to such reasonable standards (including standards
governing time, location and expense) as may be established by
the Managing Members from time to time, to obtain from the
Company from time to time upon reasonable demand for any purpose
reasonably related to the Member's interest as a Member of the
Company, the documents and other information described in Section
490A.709 of the Act.
(b) Any demand by a Member pursuant to this Section
3.05 shall be in writing and shall state the purpose of such
demand.
ARTICLE IV
Management
SECTION 4.01. Management of the Company. The business
and affairs of the Company shall be managed, and all actions
required under this Agreement shall be determined, solely and
exclusively by the Managing Members, in their capacity as Common
Members, which shall have all rights and powers on behalf and in
the name of the Company to perform all acts necessary and
desirable to the objects and purposes of the Company. Without
limiting the generality of the foregoing, but subject to Section
2.03 hereof, the Managing Members, in their capacity as Common
Members, shall have the power to:
(a) authorize and engage in transactions and dealings
on behalf of the Company, including transactions and
dealings with any Member or any affiliate of any Member or
the Managing Members (including, without limitation,
purchasing Debentures from and making loans to ConAgra);
(b) call meetings of Members or any class or series
thereof;
(c) issue Membership Interests;
(d) pay all expenses incurred in forming the Company;
(e) borrow money on behalf of the Company, issue or
guarantee evidences of indebtedness and obtain lines of
credit, loan commitments and letters of credit for the
account of the Company and secure the same by mortgage,
pledge or other lien on any assets of the Company;
(f) lend money, with or without security, to any
person, including the Managing Members, any Member or any
affiliate thereof;
(g) determine and make distributions, in cash or
otherwise, on Membership Interests, in accordance with the
provisions of this Agreement and of the Act;
(h) establish or set aside in their discretion any
reserve or reserves for contingencies and for any other
proper Company purpose;
(i) redeem or repurchase on behalf of the Company
Membership Interests which may be so redeemed or
repurchased;
(j) appoint (and dismiss from appointment) officers,
attorneys and agents on behalf of the Company, and employ
(and dismiss from employment) any and all persons providing
legal, accounting or financial services to the Company, or
such other employees or agents as the Managing Members deem
necessary or desirable for the management and operation of
the Company, including, without limitation, any Member or
any affiliate of the Managing Members or any Member;
(k) incur and pay all expenses and obligations incident
to the operation and management of the Company, including,
without limitation, the services referred to in the
preceding paragraph, taxes, interest, travel, rent,
insurance, supplies, salaries and wages of the Company's
employees and agents;
(l) acquire and enter into any contract of insurance
necessary or desirable for the protection or conservation of
the Company and its assets or otherwise in the interest of
the Company as the Managing Members shall determine;
(m) open accounts and deposit, maintain and withdraw
funds in the name of the Company in banks, savings and loan
associations, brokerage firms or other financial
institutions;
(n) effect a dissolution of the Company and to act as
liquidator or the person winding up the Company's affairs,
all in accordance with the provisions of this Agreement and
of the Act;
(o) bring and defend on behalf of the Company actions
and proceedings at law or equity before any court or
governmental, administrative or otherwise regulatory agency,
body or commission or otherwise;
(p) prepare and cause to be prepared reports,
statements and other relevant information for distribution
to Members as may be required or determined to be
appropriate by the Managing Members from time to time;
(q) prepare and file all necessary returns and
statements and pay all taxes, assessments and other
impositions applicable to the assets of the Company; and
(r) execute all other documents or instruments, perform
all duties and powers and do all things for and on behalf of
the Company in all matters necessary or desirable or
incidental to the foregoing.
The Managing Members are hereby authorized and directed
to conduct their affairs and to operate the Company in such a way
that the Company would not be deemed to be an "investment
company" for purposes of the Investment Company Act of 1940, as
amended. In this connection, the Managing Members are authorized
to take any action not inconsistent with applicable law, the
articles of organization or this Agreement which they determine
in their discretion to be necessary or desirable for such
purposes.
SECTION 4.02. Classes and Voting. All Common Members
shall have the right to vote separately as a class on any matter
on which the Common Members have the right to vote regardless of
the voting rights of any other Member.
SECTION 4.03. Books and Records; Accounting.
The Managing Members shall keep or cause to be kept at the
address of the Managing Members (or at such other place as the
Managing Members shall advise the other Members in writing) true
and full books and records regarding the status of the business
and financial condition of the Company.
SECTION 4.04. Company Tax Returns. (a) The Managing
Members shall cause to be prepared and timely filed all tax
returns required to be filed for the Company. The Managing
Members may, in their discretion, make or refrain from making any
federal, state or local income or other tax elections for the
Company that they deem necessary or advisable, including, without
limitation, any election under Section 754 of the Internal
Revenue Code or any successor provision.
(b) CP Nebraska, Inc. is hereby designated as the
Company's "Tax Matters Partner" under Code Section 6231(a)(7) and
shall have all the powers and responsibilities of such position
as provided in the Code. CP Nebraska, Inc. is specifically
directed and authorized to take whatever steps CP Nebraska, Inc.,
in its discretion, deems necessary or desirable to perfect such
designation, including filing any forms or documents with the
Internal Revenue Service and taking such other action as may from
time to time be required under the Regulations issued under the
Code. Expenses incurred by the Tax Matters Partner, in its
capacity as such will be borne by the Company.
SECTION 4.05 Reliance by Third Parties. Persons
dealing with the Company are entitled to rely conclusively upon
the power and authority of the Managing Members herein set forth.
SECTION 4.06 Expenses. Except as otherwise provided
in this Agreement, the Company shall be responsible for all and
shall pay all expenses out of funds of the Company determined by
the Managing Members to be available for such purpose, provided
that such expenses or obligations are those of the Company or are
otherwise incurred by the Managing Members in connection with
this Agreement, including, without limitation:
(a) all expenses incurred by the Managing Members or
its affiliates in organizing the Company;
(b) all costs and expenses related to the business of
the Company and all routine administrative expenses of the
Company, including the maintenance of books and records of
the Company, the preparation and dispatch to the Members of
checks, financial reports, tax returns and notices required
pursuant to this Agreement and the holding of any meetings
of the Members;
(c) all expenses incurred in connection with any
indebtedness or guarantees of the Company or any proposed or
definitive credit facility or other credit arrangement;
(d) all expenses incurred in connection with any
litigation involving the Company (including the cost of any
investigation and preparation) and the amount of any
judgment or settlement paid in connection therewith (other
than expenses incurred by the Managing Member in connection
with any litigation brought by or on behalf of any Member
against the Managing Member);
(e) all expenses for indemnity or contribution payable
by the Company to any Person;
(f) all expenses incurred in connection with the
collection of amounts due to the Company from any person;
(g) all expenses incurred in connection with the
preparation of amendments to this Agreement; and
(h) all expenses incurred in connection with the
liquidation, dissolution and winding up of the Company.
SECTION 4.07. Merger or Consolidation. The Company
may not consolidate or merge with or into, or convey, transfer or
lease its properties and assets substantially as an entirety to
any limited liability company, corporation or other body, except
as set forth in this Section 4.07. The Company may solely for
the purpose of changing its domicile or avoiding tax
consequences adverse to ConAgra or the Company or holders of
Preferred Securities, without the consent of the Preferred
Members, consolidate or merge with or into a limited liability
company or limited partnership organized as such under the laws
of any state of the United States of America; provided that
(i) such successor entity either (x) expressly assumes
all of the obligations of the Company under each series of
Preferred Securities then outstanding or (y) substitutes
for the Preferred Securities then outstanding other securities
having substantially the same terms as the Preferred Securities
then outstanding (the "Successor Securities") so long as the
Successor Securities rank, with respect to participation in the
profits or assets of the successor entity, at least as senior as
the respective Preferred Securities rank with respect to
participation in the profits or assets of the Company,
(ii) ConAgra expressly acknowledges such successor as the holder
of all of the Debentures relating to each series of Preferred
Interests then outstanding, (iii) such merger or consolidation
does not cause any series of Preferred Interests then outstanding
to be delisted by any national securities exchange or other
organization on which such series is then listed, (iv) the
Preferred Members do not suffer any adverse tax consequences as a
result of such merger or consolidation, (v) such merger or
consolidation does not cause any Preferred Interests to be
downgraded by any "nationally recognized statistical rating
organization," as that term is defined by the Securities and
Exchange Commission for purposes of Rule 436(g)(2) under the
Securities Act of 1933, as amended, and (vi) following such
merger or consolidation neither ConAgra nor such successor
limited liability company or limited partnership will be an
"investment company" for purposes of the Investment Company Act
of 1940, as amended.
ARTICLE V
Contributions and Allocations
SECTION 5.01. Form of Contribution. The contribution
of a Member to the Company may, as determined by the Managing
Members in their discretion, be in cash, or a promissory note or
other obligation to contribute cash.
SECTION 5.02. Contributions by the Common Members.
The Common Members shall make such contributions to the Company,
either in connection with the purchase of Common Membership
Interests or otherwise, so as to cause their Common Interests to
be entitled to at least 21% of all interest in the capital,
income, gain, loss, deduction, credit and distributions of the
Company at all times.
SECTION 5.03. Contributions by the Preferred Members.
The Preferred Members shall make such contributions to the
Company in accordance with the applicable terms of Section 3.02
of this Agreement. Preferred Members, in their capacity as
Members of the Company, shall not be required to make any
additional contribution to the Company and shall have no
additional liability solely by reason of being Preferred Members
in excess of their share of the Company's assets and
undistributed profits.
SECTION 5.04. Allocation of Profits and Losses. The
profits and losses of the Company shall, subject to the
applicable terms of Section 3.02 of this Agreement and of any
series of Preferred Interests (including the preferential
allocation of profits and losses, if any), be allocated entirely
to the Common Members.
SECTION 5.05. Allocation of Distributions. The
distributions of the Company shall, subject to the applicable
terms of Section 3.02 of this Agreement and of any series of
Preferred Interests (including the preferential allocation of
distributions, if any), be allocated entirely to the Common
Members.
ARTICLE VI
Distributions and Resignations
SECTION 6.01. Interim Distribution. Preferred Members
shall receive periodic distributions, if any, in accordance with
the applicable terms of Section 3.02 of this Agreement and of any
series of Preferred Interests, and Common Members shall receive
periodic distributions, subject to the applicable terms of
Section 3.02 of this Agreement and of any series of Preferred
Interests, and to the provisions of the Act, as and when declared
by the Managing Members, in their discretion out of funds legally
available therefor.
SECTION 6.02. Resignation of the Managing Members.
The Managing Members shall have no right to resign.
SECTION 6.03. Resignation of Member. A Member shall
resign from the Company prior to the dissolution and winding up
of the Company only upon the assignment of its Membership
Interests (including any redemption, exchange or other repurchase
by the Company) and, as the case may be, compliance with the
provisions of Section 3.01 of this Agreement.
SECTION 6.04. Distribution Upon Resignation. Upon
resignation, and except in accordance with the applicable terms
of its Membership Interest, any resigning Member shall not be
entitled to receive any distribution and shall not otherwise be
entitled to receive the fair value of its Membership Interest.
SECTION 6.05. Distribution in Kind. A Member, in the
discretion of the Managing Members and in accordance with any
applicable agreement, instrument, action or terms of the
Membership Interests, may receive distributions from the Company
in any form other than cash, and may be compelled to accept a
distribution of any asset in kind from the Company such that the
percentage of the asset distributed to him equals a percentage of
that asset which is equal to the percentage in which the Member
shares in distributions from the Company.
SECTION 6.06. Record Dates. The Managing Members in
their discretion, and in accordance with any applicable
agreement, instrument or action, shall have the right to
establish a record date with respect to allocations and
distributions by the Company.
ARTICLE VII
Assignment of Membership Interests
SECTION 7.01. Assignment of Membership Interests.
Notwithstanding anything to the contrary under this Agreement,
Common Interests shall be non-assignable and non-transferable,
and may only be issued to a Managing Member and held by the
Managing Member to which such Common Interest was originally
issued. Preferred Interests shall be freely assignable and
transferable, subject to the provisions of Section 3.01.
SECTION 7.02. Right of Assignee to Become a Member.
An assignee shall become a Member upon compliance with the
provisions of Section 3.01.
ARTICLE VIII
Dissolution
SECTION 8.01. Duration and Dissolution. The Company
shall be dissolved and its affairs shall be wound up upon the
first to occur of the following:
(a) May 15, 2094;
(b) any Managing Member makes an assignment for the
benefit of creditors, files a voluntary petition in
bankruptcy, is adjudged bankrupt or insolvent, or has
entered against it an order for relief, in any bankruptcy or
insolvency proceeding, files a petition or answer seeking
for itself any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or other similar
relief under any statute, law or regulation, files an answer
or other pleading admitting or failing to contest the
material allegations of a petition filed against it in any
proceeding of this nature, seeks, consents or acquiesces in
the appointment of a trustee, receiver or liquidator of any
Managing Member of any substantial part of its properties,
or 120 days after the commencement of any proceeding against
any Managing Member seeking reorganization, arrangement,
composition, readjustment, liquidation, dissolution or
similar relief under any statute, law or regulation, if the
proceeding has not been dismissed, or if within 90 days
after the appointment without its consent or acquiescence of
a trustee, receiver or liquidator of any Managing Member or
of all or any substantial part of its properties, the
appointment is not vacated or stayed, or within 90 days
after the expiration of any such stay, the appointment is
not vacated;
(c) upon the withdrawal, resignation, expulsion,
dissolution or liquidation of any Managing Member or the
occurrence of any other event that terminates the continued
membership of the Common Members;
(d) a decision made by the Managing Members (subject
to the voting rights of the holders of the Preferred
Interests set forth in Section 3.02(e)) to dissolve the
Company;
(e) the written consent of all Members; and
(f) the entry of a decree of judicial dissolution
under Section 490A.1302 of the Act.
The death, retirement, resignation, expulsion,
bankruptcy or dissolution of any other Member or the occurrence
of any other event which terminates the continued membership of
any other Member in the Company shall not cause the Company to be
dissolved and its affairs wound up.
SECTION 8.02. Winding Up. Subject to the provisions
of the Act, the Managing Members shall have the exclusive right
to wind up the Company's affairs in accordance with Section
490A.1303 of the Act (and shall promptly do so upon dissolution
of the Company in accordance with Section 8.01), and shall also
have the exclusive right to act as or appoint a liquidating
trustee in connection therewith.
SECTION 8.03. Distribution of Assets. Upon the
winding up of the Company the assets shall be distributed in the
manner provided in Section 490A.1304 of the Act, subject to the
applicable terms of Section 3.02 and of any series of Preferred
Interests.
ARTICLE IX
Reports
SECTION 9.01. Tax Reports and Financial Statements.
After the end of each fiscal year, the Managing Members shall, as
promptly as possible and in any event within 90 days of the close
of the fiscal year, (a) cause to be prepared and made available
upon request of any Preferred Member the financial statements of
the Company prepared in accordance with generally accepted
accounting principles and (b) cause to be prepared and
transmitted to each member federal income tax form K-1 or any
other forms which are necessary or advisable.
ARTICLE X
Miscellaneous
SECTION 10.01. Amendment to the Agreement. Except as
otherwise provided in this Agreement or by any applicable terms
of any Preferred Interests, this Agreement (other than Section
7.01 of this Agreement) may be amended by a written instrument
executed by the Managing Members.
SECTION 10.02. Successors; Counterparts. This
Agreement (a) shall be binding as to the executors,
administrators, estates, heirs and legal successors, or nominees
or representatives, of the Members and (b) may be executed in
several counterparts with the same effect as if the parties
executing the several counterparts had all executed one
counterpart.
SECTION 10.03. Governing Law; Severability. This
Agreement shall be governed by and construed in accordance with
the laws of the State of Iowa without giving effect to the
principles of conflict of laws thereof. In particular, this
Agreement shall be construed to the maximum extent possible to
comply with all of the terms and conditions of the Act. If,
nevertheless, it shall be determined by a court of competent
jurisdiction that any provisions or wording of this Agreement
shall be invalid or unenforceable under said Act or other
applicable law, such invalidity or unenforceability shall not
invalidate the entire Agreement. In that case, this Agreement
shall be construed as to limit any term or provision so as to
make it enforceable or valid within the requirements of
applicable law, and, in the event such term or provisions cannot
be so limited, this Agreement shall be construed to omit such
invalid or unenforceable provisions. If it shall be determined
by a court of competent jurisdiction that any provision relating
to the distributions and allocations of the Company or to any fee
payable by the Company is invalid or unenforceable, this
Agreement shall be construed or interpreted so as (a) to make it
enforceable or valid and (b) to make the distributions and
allocations as closely equivalent to those set forth in this
Agreement as is permissible under applicable law.
SECTION 10.04. Filings. Following the execution and
delivery of this Agreement, the Managing Members shall promptly
prepare any documents required to be filed and recorded under the
Act, and the Managing Members shall promptly cause each such
document to be filed and recorded in accordance with Act and, to
the extent required by local law, to be filed and recorded or
notice thereof to be published in the appropriate place in each
jurisdiction in which the Company may hereafter establish a place
of business. The Managing Members shall also promptly cause to
be filed, recorded and published such statements of fictitious
business name and any other notices, certificates, statements or
other instruments required by any provision of any applicable law
of the United States or any state or other jurisdiction which
governs the conduct of its business from time to time.
SECTION 10.05. Power of Attorney. Each Member does
hereby constitute and appoint each Managing Member as its true
and lawful representative and attorney-in-fact, in its name,
place and stead to make, execute, sign, deliver and file (a)
Articles of Organization of the Company, any amendment thereof
required because of an amendment to this Agreement or in order to
effectuate any change in the membership of the Company, (b) this
Agreement, (c) any amendments to this Agreement and (d) all such
other instruments, documents and certificates which may from time
to time be required by the laws of the United States of America,
the State of Iowa or any other jurisdiction, or any political
subdivision of agency thereof, to effectuate, implement and
continue the valid and subsisting existence of the Company or to
dissolve the Company or for any other purpose consistent with
this Agreement and the transactions contemplated hereby.
The power of attorney granted hereby is coupled with an
interest and shall (a) survive and not be affected by the
subsequent death, incapacity, disability, dissolution,
termination or bankruptcy of the Member granting the same or the
transfer of all or any portion of such Member's Interest and (b)
extend to such Member's successors, assigns and legal
representatives.
SECTION 10.06. Headings. Section and other headings
contained in this Agreement are for reference purposes only and
are not intended to describe, interpret, define or limit the
scope or intent of this Agreement or any provision hereof.
SECTION 10.07. Additional Documents. Each Member,
upon the request of the Managing Members, agrees to perform all
further acts and execute, acknowledge and deliver any documents
that may be reasonably necessary to carry out the provisions of
this Agreement.
SECTION 10.08. Notices. All notices, requests and
other communications to any party hereunder shall be in writing
(including telecopier or similar writing) and shall be given to
such party (and any other person designated by such party) at its
address or telecopier number set forth in a schedule filed with
the records of the Company or such other address or telecopier
number as such party may hereafter specify for the purpose of
notice to the Managing Members (if such party is not a Managing
Member) or to all the other Members (if such party is a Managing
Member). Each such notice, request or other communication shall
be effective (a) if given by telecopier, when transmitted to the
number specified pursuant to this Section and the appropriate
confirmation is received, (b) if given by mail, 72 hours after
such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, or (c) if given by any
other means, when delivered at the address specified pursuant to
this Section.
IN WITNESS WHEREOF, the undersigned have hereto set their
hands as of the day and year first above written.
COMMON MEMBERS:
CP NEBRASKA, INC.
By:________________________
Name:
Title:
HW NEBRASKA, INC.
By:________________________
Name:
Title:
Exhibit 4.6
Terms of the
___% Series A Cumulative Preferred Securities
DATED AS OF __________ ___, 1994
WRITTEN ACTION OF THE MANAGING MEMBERS
PURSUANT TO SECTION 3.02 OF THE
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
The undersigned, constituting all of the Managing
Members of ConAgra Capital, L.C., an Iowa limited liability
company (the "Company"), pursuant to Section 3.02 of the Limited
Liability Company Operating Agreement (the "Operating Agreement"
dated as of March 11, 1994 by and among the Managing Members, do
hereby authorize the issue of, and establish the relative rights,
powers and duties of, a series of Series Preferred Membership
Interests (as defined in the Operating Agreement), as follows:
1. Definitions. All terms defined in the Operating
Agreement and not otherwise defined herein shall have for
purposes hereof the meanings provided for therein. The following
additional terms have the respective meanings specified below:
"Applicable Price" means as of any date of
determination and with respect to any Series A Preferred
Security, the stated liquidation preference of such Series A
Preferred Security, plus accumulated and unpaid dividends
(whether or not declared) to the date of such determination.
"Business Day" means any day other than a day on which
banking institutions in The City of New York are authorized or
required by law to close.
"Debentures" means all debentures issued and
outstanding under the Subordinated Indenture.
"DTC" means The Depository Trust Company, as depositary
for the Series A Preferred Securities (as defined below).
"Expense Agreement" means the Agreement as to Expenses
and Liabilities dated as of _________ ___, 1994 between ConAgra
and the Company.
"Guarantee" means the Payment and Guarantee Agreement
dated as of ____________ ___, 1994, executed and delivered by
ConAgra for the benefit of the holders from time to time of the
Series A Preferred Securities and other Preferred Interests of
the Company.
"Series A Debentures" means the $_____________
aggregate principal amount (or up to $___________ aggregate
principal amount if and to the extent the underwriters' over-
allotment option granted by the Company in the Underwriting
Agreement is exercised) of ConAgra's ___% Series A Debentures
issued pursuant to the Subordinated Indenture.
"Subordinated Indenture" means the Indenture, dated as
of March 10, 1994, between ConAgra and First Trust National
Association, as trustee.
"Underwriting Agreement" means the Underwriting
Agreement dated as of _________ ___, 1994, among ConAgra, the
Company, Smith Barney Shearson Inc., Merrill Lynch, Pierce,
Fenner & Smith Incorporated as representatives of the several
underwriters named therein.
2. Designation. __________ Series Preferred Membership
Interests (or up to __________ Series Preferred Membership
Interests if and to the extent the underwriters' over-allotment
option granted by the Company in the Underwriting Agreement is
exercised) with a liquidation preference of $25 per interest are
hereby authorized and designated as " ___% Series A Cumulative
Preferred Securities" (hereinafter called the "Series A Preferred
Securities").
3. Voting. Except as otherwise provided in the Act, the
Operating Agreement (including, without limitation, Section
3.02(e) thereof) or this Written Action, Preferred Members
holding the Series A Preferred Securities shall have, with
respect to such Series A Preferred Securities, no right or power
to vote on any question or matter or in any proceeding or to be
represented at, or to receive notice of, any meeting of Members.
4. Periodic Distributions. (a) Periodic distributions
(herein referred to as "dividends") on the Series A Preferred
Securities shall be cumulative. Dividends shall accrue from
_________ ___, 1994 and shall be payable monthly in arrears on
the last day of each calendar month of each year, commencing on
April 30, 1994.
(b) The dividend payable on the Series A Preferred
Securities shall be fixed at a rate of ___% per annum of the
liquidation preference of the Series A Preferred Securities. The
amount of dividends payable for any full monthly dividend period
shall be computed on the basis of twelve 30-day months and a 360-
day year and, for any period shorter than a full monthly dividend
period, shall be computed on the basis of the actual number of
days elapsed in such period. The Company shall only pay
dividends to the extent it has funds legally available to make
such payments.
(c) Dividends on the Series A Preferred Securities
shall be declared by the Managing Members to the extent that the
Managing Members reasonably anticipate that at the time of
payment the Company will have, and must be paid by the Company to
the extent that at the time of proposed payment it has, (i) funds
legally available for the payment of such dividends and (ii) cash
on hand sufficient to permit such payments.
(d) Dividends declared on the Series A Preferred
Securities shall be payable to the record holders thereof as they
appear on the register for the Series A Preferred Securities
maintained by or on behalf of the Company on the relevant record
date, which shall be one Business Day prior to the relevant
payment date. Subject to any applicable laws and regulations,
each such payment shall be made through the facilities of DTC.
If any date on which dividends are payable on the Series A
Preferred Securities is not a Business Day, then the payment of
the dividend payable on such date shall be made on the next
succeeding day which is a Business Day (and without any interest
or other payment in respect of any such delay) except that, if
such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on such
date.
(e) Except as described in the Operating Agreement and
in this Written Action, the Series A Preferred Securities shall
have no other right to participate in the profits of the Company.
(f) If dividends have not been paid in full on the
Series A Preferred Securities, the Company shall not:
(i) pay, or declare and set aside for payment, any
dividends on the Preferred Interests of any other series or
any other preferred interests of the Company ranking pari
passu with the Series A Preferred Securities as regards
participation in profits of the Company ("Dividend Parity
Securities"), unless the amount of any dividends declared on
any Dividend Parity Securities is paid on Dividend Parity
Securities and the Series A Preferred Securities on a pro
rata basis on the date such dividends are paid on such
Dividend Parity Securities, so that
(x) (A) the aggregate amount paid as dividends on
the Series A Preferred Securities bears to (B) the
aggregate amount paid as dividends on Dividend Parity
Securities the same ratio as
(y) (A) the aggregate of all accumulated arrears
of unpaid dividends on the Series A Preferred
Securities bears to (B) the aggregate of all
accumulated arrears of unpaid dividends on Dividend
Parity Securities;
(ii) pay, or declare and set aside for payment, any
dividends on any interests in the Company ranking junior to
the Series A Preferred Securities as to dividends ("Dividend
Junior Securities"); or
(iii) redeem, purchase or otherwise acquire any
Dividend Parity Securities or Dividend Junior Securities;
until, in each case, such time as all accumulated arrears of
unpaid dividends on the Series A Preferred Securities shall have
been paid in full for all dividend periods terminating on or
prior to, in the case of clauses (i) and (ii), such payment, and
in the case of clause (iii), the date of such redemption,
purchase or other acquisition. For purposes of the foregoing, so
long as the Preferred Interests of any series are represented by
one or more global certificates, dividends on such series of
Preferred Interests shall have been paid in full with respect to
any dividend payment date for such series when the amount of
dividends payable on such date has been paid to DTC.
5. Ranking; Liquidation. (a) The Series A Preferred
Securities shall, with respect to dividend rights and rights on
liquidation, dissolution or winding up, rank (i) pari passu with
all other series of Preferred Interests issued by the Company and
(ii) prior to any other interests of the Company, including the
Common Interests. So long as any Series A Preferred Securities
remain outstanding, the Company shall not issue any interests
ranking, as to participation in the profits or assets of the
Company, senior to the Series A Preferred Securities.
(b) In the event of the liquidation of the Company,
holders of Series A Preferred Securities shall be entitled to
receive for each Series A Preferred Security a liquidation
preference of $25 plus accumulated and unpaid dividends (whether
or not declared) to the date of payment. Prior to __________
___, 1999, payment of such liquidation preference shall be made
by distributing to each holder of Series A Preferred Securities
one or more Series A Debentures having an aggregate principal
amount and accrued and unpaid interest equal to such liquidation
preference. Such Series A Debentures shall have the terms
specified in Section 7(b) for exchanges of Series A Debentures
for Series A Preferred Securities.
6. Redemption. (a) The Series A Preferred Securities
shall be redeemable at the option of the Company and subject to
the prior consent of ConAgra, in whole or in part from time to
time, on or after _________ ___, 1999, upon not less than 30 nor
more than 60 days' notice, at the Applicable Price (with the date
of any such redemption being a "Redemption Date"). If a partial
redemption would result in a delisting of the Series A Preferred
Securities from the New York Stock Exchange, the Company may only
redeem the Series A Preferred Securities in whole.
(b) ConAgra shall have the right at any time to cause
ConAgra Captial, upon not less than 30 nor more than 60 days'
notice, to redeem the Series A Preferred Securities at the
Applicable Price if ConAgra and ConAgra Capital have been advised
by independent nationally recognized legal counsel that, as a
result of any change in U.S. law as described in Section 7(a)
hereof, there exists more than an insubstantial risk that ConAgra
would be precluded from deducting the interest on the Series A
Debentures for federal income tax purposes even if the Series A
Preferred Securities were exchanged for the Series A Debentures
as descibed in Section 7(a) hereof.
(c) The Series A Preferred Securities shall be subject
to mandatory redemption at the Applicable Price with the proceeds
from the repayment by ConAgra when due or prepayment by ConAgra
of the Series A Debentures, subject to the provisions in Section
4(f)(iii) hereof. Notwithstanding the foregoing, the Series A
Preferred Securities will not be subject to mandatory redemption
when the Series A Debentures relating to the Series A Preferred
Securities are due if ConAgra elects to exchange such Series A
Debentures for new debentures or to repay such Debentures and
reborrow the proceeds from such repayment nor will such Series A
Preferred Securities be subject to mandatory redemption if such
Series A Debentures are optionally prepaid and ConAgra elects to
reborrow the proceeds from such prepayment; provided that ConAgra
may not so elect to exchange any such Series A Debentures or to
reborrow the proceeds from any repayment or prepayment of such
Series A Debentures, unless at the time of each such exchange or
reborrowing the Company owns all of such Series A Debentures and,
as determined in the judgment of the Managing Members and the
Company's financial advisor (selected by the Managing Members and
who shall be unaffiliated with ConAgra and shall be among the 30
largest investment banking firms, measured by total capital, in
the United States at the time new debentures are to be issued in
connection with such exchange or reborrowing), (a) ConAgra is not
bankrupt, insolvent or in liquidation, (b) no event of
default or event which with the giving of notice or the passage
of time would constitute an event of default on any debenture
pertaining to Preferred Securities of any series has occurred and
is continuing, (c) ConAgra has made timely payments on the
repaid Series A Debentures for the immediately preceding 18
months, (d) the Company is not in arrears on payments of
dividends on the Series A Preferred Securities, (e) there is
then no present reason to believe ConAgra will be unable to
make timely payment of principal and interest on such new
debentures, (f) such new debentures are being issued on
terms, and under circumstances, that are consistent with those
which a lender would then require for a loan to an unrelated
party, (g) such new debentures are being issued at a rate
sufficient to provide payments equal to or greater than the
amount of distributions required under the Preferred Securities
of such series, (h) such new debentures are being issued for
a term that is consistent with market circumstances and ConAgra's
financial condition, (i) immediately prior to issuing such
new debentures, the senior unsecured long-term debt of
ConAgra is (or if no such debt is outstanding, would be) rated
not less than BBB (or the equivalent) by Standard & Poor's
Corporation and Baa1 (or the equivalent) by Moody's Investors
Service, Inc. (or if either of such rating organizations is not
then rating ConAgra's senior unsecured long-term debt, the
equivalent of such rating by any other "nationally recognized
statistical rating organization," as that term is defined by the
Securities and Exchange Commission for purposes of Rule 436(g)(2)
under the Securities Act) and any subordinated unsecured
long-term debt of ConAgra or, if there is no such debt then
outstanding, the Series A Preferred Securities, are rated not
less than BBB- (or the equivalent) by Standard & Poor's
Corporation or Baa3 (or the equivalent) by Moody's Investors
Service, Inc. or the equivalent of either such rating by any
other "nationally recognized statistical rating organization" and
(j) such new debentures will have a final maturity no later than
the one hundredth anniversary of the first issuance of the Series
A Preferred Securities.
(d) The Company may not redeem any Preferred Interests
of any series unless all accumulated arrearages of unpaid
dividends have been paid on all Series A Preferred Securities for
all monthly dividend periods terminating on or prior to the date
of redemption.
(e) If the Company gives a notice of redemption in
respect of the Series A Preferred Securities, then, by 12:00
noon, New York time, on the applicable Redemption Date, the
Company will irrevocably deposit with DTC funds sufficient to pay
the Applicable Price and will give DTC irrevocable instructions
and authority to pay the Applicable Price to the holders thereof.
If notice of redemption shall have been given and funds deposited
as required, then upon the date of such deposit, all rights of
holders of the Series A Preferred Securities so called for
redemption will cease, except the right of the holders of such
Series A Preferred Securities to receive the Applicable Price,
but without interest, and such interests will cease to be
outstanding. If any date on which any payment in respect of the
redemption of Series A Preferred Securities is not a Business
Day, then payment of the Applicable Price payable on such date
will be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of any such
delay), except that, if such Business Day falls in the next
calendar year, such payment will be made on the immediately
preceding Business Day. If payment of the Applicable Price in
respect of the Series A Preferred Securities is improperly
withheld or refused and not paid either by the Company or by
ConAgra pursuant to the Guarantee, dividends on such Series A
Preferred Securities will continue to accrue, at the then
applicable rate, from the Redemption Date originally established
by the Company for such interests to the date such Applicable
Price is actually paid, in which case the actual payment date
will be the date fixed for redemption for purposes of calculating
the Applicable Price.
(f) Subject to the foregoing and applicable law
(including, without limitation, U.S. federal securities laws)
ConAgra or its subsidiaries may at any time and from time to time
purchase outstanding Series A Preferred Securities by tender, in
the open market or by private agreement.
7. Exchange. (a) ConAgra may cause the Company, upon not
less than 30 nor more than 60 days' notice, to exchange the
Series A Preferred Securities for Series A Debentures having an
aggregate principal amount and accrued and unpaid interest equal
to the Applicable Price and an interest rate thereon equal to the
dividend rate on the Series A Preferred Securities if ConAgra and
the Company have been advised by independent nationally
recognized legal counsel that, as a result of any change after
_________ ___, 1994 in U.S. law (including the enactment or
imminent enactment of any legislation, the publication of any
judicial decisions or regulatory rulings or a change in the
official position or in the interpretation of law or
regulations), there exists more than an insubstantial risk that
(i) ConAgra will be precluded from deducting the interest on the
Series A Debentures for federal income tax purposes or (ii) the
Company is subject to federal income tax with respect to the
interest received on the Series A Debentures.
(b) Upon exchange of the Series A Preferred Securities
for Series A Debentures, (i) the Series A Debentures shall no
longer be subject to mandatory prepayment upon the dissolution,
winding up or liquidation of the Company, (ii) the Series A
Debentures shall not be subject to an election by ConAgra to
exchange the Series A Debentures for new debentures or to repay
the Series A Debentures and reborrow the proceeds from such
repayment, (iii) ConAgra shall use its best efforts to have the
Series A Debentures listed on the same exchange on which the
Series A Preferred Securities are listed, (iv) the Subordinated
Indenture or Series A Debentures may, thereafter, be modified or
amended only with the consent of the holders of not less than 66
2/3% in principal amount of the Debentures at the time
outstanding (excluding any such Debentures held by ConAgra or an
affiliate of ConAgra), provided, however, that no such
modification or amendment may, without the consent of the holder
of each Series A Debenture affected thereby, (a) extend the
stated maturity of the principal of any Series A Debenture, or
reduce the principal amount thereof or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount
payable on redemption thereof or change the currency in which the
principal thereof or interest thereon is payable or impair the
right to institute suit for the enforcement of any payment on any
Series A Debenture when due or (b) reduce the aforesaid
percentage in principal amount of Debentures of any series the
consent of the holders of which is required for any such
modification, (v) ConAgra's obligation to pay Additional Interest
(other than Additional Interest, if any, accrued and unpaid to
such date of exchange) shall cease and (vi) the provisions
relating to Events of Default contained in Section 5.1 of the
Subordinated Indenture (as in effect on the date hereof) rather
than those contained in the Series A Debentures shall apply.
(c) After the date fixed for any such exchange, (i)
the Series A Preferred Securities will no longer be deemed to be
outstanding, (ii) DTC or its nominee, as the record holder of the
Series A Preferred Securities, will exchange the global
certificate or certificates representing the Series A Preferred
Securities for a registered global certificate or certificates
representing the Series A Debentures to be delivered upon such
exchange and (iii) any certificates representing Series A
Preferred Securities not held by DTC or its nominee will be
deemed to represent Series A Debentures having a principal amount
equal to the stated liquidation preference of such Series A
Preferred Securities until such certificates are presented to the
Company or its agent for exchange.
8. No Sinking Fund. The Series A Preferred Securities
shall not be subject to the operation of a retirement or sinking
fund.
9. Appointment of Trustee in Certain Circumstances. The
provisions of Section 3.02(f) shall apply to the Series A
Preferred Securities and the holders of the Series A Preferred
Securities shall have the right to vote for the appointment of a
trustee as provided therein.
10. Meetings. (a) Any required approval of holders of
Series A Preferred Securities may be given at a separate meeting
of such holders convened for such purpose or at a meeting of
interestholders of the Company or pursuant to written consent.
The Company shall cause a notice of any meeting at which holders
of the Series A Preferred Securities are entitled to vote, or of
any matter upon which action may be taken by written consent of
such holders, to be mailed to each holder of record of the Series
A Preferred Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which such
holders are entitled to vote or of such matters upon which
written consent is sought and (iii) instructions for the delivery
of proxies or consents.
(b) Notwithstanding that holders of Series A Preferred
Securities are entitled to vote or consent under any of the
circumstances described herein, in the Articles of Organization
or in the Operating Agreement, any of the Preferred Interests of
any series that are owned by ConAgra or any entity owned more
than 50% by ConAgra, either directly or indirectly, shall not be
entitled to vote or consent and shall, for the purposes of such
vote or consent, be treated as if they were not outstanding.
11. Book-Entry-Only Issuance; The Depository Trust
Company. (a) DTC, New York, New York, will act as securities
depository for the Series A Preferred Securities. The Series A
Preferred Securities will be issued only as fully-registered
securities registered in the name of Cede & Co. (DTC's
partnership nominee).
(b) Redemption notices shall be sent to Cede & Co. If
less then all of the Series A Preferred Securities are being
redeemed, such securities shall be redeemed in accordance with
DTC's then current practice.
(c) DTC may discontinue providing its services as
securities depository with respect to the Series A Preferred
Securities by giving reasonable notice to the Company as provided
in the agreement between the Company and DTC. Under such
circumstances, if a successor securities depository is not
obtained, the Company at its expense shall cause certificates for
Series A Preferred Securities to be printed and delivered as
promptly as practicable.
12. Guarantee of Liabilities. It shall be a condition
precedent to the issuance of the Series A Preferred Securities
that ConAgra execute the Guarantee and the Expense Agreement.
13. Registrar and Transfer Agent. The Company hereby
appoints Chemical Bank as its initial registrar and transfer
agent for the Series A Preferred Securities.
14. Governing Law. This Written Action shall be governed
by and construed in accordance with the laws of the State of Iowa
without giving effect to the principles of conflict of laws
thereof.
IN WITNESS WHEREOF, the undersigned Managing Members of
the Company have hereto set their hands as of the day and year
first above written.
CP NEBRASKA, INC.
By:________________________
Name:
Title:
HW NEBRASKA, INC.
By:________________________
Name:
Title:
EXHIBIT 4.8
==========================================================
CONAGRA, INC.
AND
FIRST TRUST NATIONAL ASSOCIATION
Trustee
First Supplemental Indenture
Dated as of , 1994
Providing for Issuance of
____% Series A Debentures due 2043
in connection with the issuance by
ConAgra Capital, L.C. of its
___% Series A Cumulative Preferred Securities
==========================================================
FIRST SUPPLEMENTAL INDENTURE (the "Supplemental
Indenture"), dated as of , 1994, between CONAGRA,
INC., a Delaware corporation (the "Issuer"), and FIRST TRUST
NATIONAL ASSOCIATION, a national banking corporation (the
"Trustee").
W I T N E S S E T H :
WHEREAS, in accordance with Sections 2.1, 2.3 and 8.1
of the Subordinated Indenture dated as of March 10, 1994, between
the Issuer and the Trustee (the "Indenture"), this Supplemental
Indenture is being entered into in order to establish the form
and terms of a series of Securities to be issued in connection
with the issuance by ConAgra Capital, L.C., an Iowa limited
liability company ("Capital"), of its ___% Series A Cumulative
Preferred Securities (the "Series A Preferred Securities");
WHEREAS, the Issuer has duly authorized the execution
and delivery of this Supplemental Indenture to provide, among
other things, for the authentication, delivery and administration
of such series of Securities;
WHEREAS, all things necessary to make this Supplemental
Indenture a valid supplement to Indenture according to its terms
and the terms of the Indenture have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of
such series of Securities by the holders thereof, the Issuer and
the Trustee mutually covenant and agree for the equal and
proportionate benefit of the respective holders from time to time
of such series of Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined in the Indenture.
All capitalized terms used herein without definition shall have
the meanings specified in the Indenture.
SECTION 1.2 Additional Terms Defined. As used in this
Supplemental Indenture, the additional terms set forth below
shall have the following meanings:
"Additional Interest" shall have the meaning set forth
in Section 2.8 hereof.
"Common Interests" shall mean Common Membership
Interests as defined in the Operating Agreement.
"DTC" shall mean The Depository Trust Company as
initial depositary of the Series A Debentures upon a Preferred
Security Exchange.
"Event of Default" shall (a) prior to a Preferred
Security Exchange, have the meaning set forth in Section 2.12
hereof and (b) on and after a Preferred Security Exchange, have
the meaning set forth in Section 5.1 of the Indenture.
"Expense Agreement" means the Agreement as to Expenses
and Liabilities dated as of _________ ___, 1994 between the
Issuer and Capital.
"Guarantee" means the Payment and Guarantee Agreement
dated as of ____________ ___, 1994, executed and delivered by the
Issuer for the benefit of the holders from time to time of the
Series A Preferred Securities and other Preferred Interests of
Capital.
"Managing Members" means HW Nebraska, Inc., a Nebraska
corporation, and CP Nebraska, Inc., a Nebraska corporation, as
managing members of Capital.
"Operating Agreement" means the Limited Liability
Company Operating Agreement dated as of March 11, 1994 by and
among the Managing Members.
"Preferred Interests" means Series Preferred Membership
Interests as defined in the Operating Agreement.
"Preferred Security Exchange" means an exchange of
Series A Debentures for Series A Preferred Securities pursuant to
Section 7 of the Written Action.
"Underwriting Agreement" means the underwriting
agreement dated as of _________ ___, 1994, among the Issuer,
Capital and Smith Barney Shearson Inc. and Merrill Lynch, Pierce,
Fenner & Smith Incorporated as representatives of the several
underwriters named therein.
"Written Action" means the Written Action of the
Managing Members Pursuant to Section 3.02 of the Operating
Agreement dated , 1994, establishing the terms of the
Series A Preferred Securities.
ARTICLE TWO
ISSUANCE OF ___% SERIES A DEBENTURES
SECTION 2.1 Issuance of ___% Series A Debentures.
There shall be a series of Securities designated "___% Series A
Debentures due 2043" (the "Series A Debentures") and such Series
A Debentures shall have the terms set forth in this Article Two
in accordance with the provisions of the Indenture and this
Supplemental Indenture.
SECTION 2.2 Limitation on Aggregate Principal Amount.
The aggregate principal amount of the Series A Debentures which
may be authenticated and delivered shall be limited to
$___________ (or up to $___________ aggregate principal amount if
and to the extent the underwriters' over-allotment option granted
by the Issuer in the Underwriting Agreement is exercised).
SECTION 2.3 Maturity of the Series A Debentures.
Subject to the provisions of Sections 2.4 and 2.5, the entire
principal amount of the Series A Debentures shall become due and
payable, together with any accrued and unpaid interest thereon,
including Additional Interest, if any, on the earlier of (a)
, 2043 (subject to the Issuer's right to exchange the
Series A Debentures for new debentures pursuant to Section 2.6)
and (b) the date upon which Capital shall be dissolved, wound-up
or liquidated; provided that the parenthetical to clause (a) and
the entirety of clause (b) shall be inapplicable on and after the
date of any Preferred Security Exchange.
SECTION 2.4 Mandatory Prepayment of Series A
Debentures upon redemption of Series A Preferred Securities.
Notwithstanding the provisions of Section 2.3, if Capital redeems
the Series A Preferred Securities in accordance with the terms
thereof, the Series A Debentures pertaining to the Series A
Preferred Securities shall become due and payable in a principal
amount equal to the aggregate stated liquidation preference of
the Series A Preferred Securities so redeemed, together with any
and all accrued interest thereon, including Additional Interest,
if any. Any payment pursuant to this Section 2.4 shall be made
prior to 12:00 noon, New York time, on the date fixed for such
redemption or at such other time on such earlier date as Capital
and the Issuer shall agree.
SECTION 2.5 Optional Prepayment. Upon not less than
30 nor more than 60 days' prior notice, the Issuer shall have the
right to prepay the Series A Debentures relating to the Series A
Preferred Securities (together with any accrued but unpaid
interest, including Additional Interest, if any, on the portion
being prepaid), without premium or penalty,
(i) in whole or in part, as the case may be, at any
time on or after , 1999; and
(ii) in whole at any time if the Issuer and Capital
have been advised by independent nationally recognized legal
counsel that, as a result of any change after , 1994
in United States law (including the enactment or imminent
enactment of any legislation, the publication of any
judicial decisions or regulatory rulings or a change in the
official position or in the interpretation of law or
regulations), there exists more than an insubstantial risk
that the Issuer will be precluded from deducting the
interest on the Series A Debentures for federal income tax
purposes even if the Series A Preferred Securities are
exchanged for the Series A Debentures pursuant to a
Preferred Security Exchange.
SECTION 2.6 Exchange of Series A Debentures for New
Debentures. Notwithstanding the provisions of Section 2.3, prior
to a Preferred Security Exchange, in lieu of repaying the Series
A Debentures relating to the Series A Preferred Securities when
due, the Issuer may elect to exchange such Series A Debentures
for new debentures with an equal aggregate principal amount
issued under the Indenture with terms substantially identical to
the Series A Debentures; provided that the Issuer may not so
elect to exchange any Series A Debentures, unless at the time of
such exchange Capital owns all of the Series A Debentures and, as
determined in the judgment of the Managing Members and Capital's
financial advisor (selected by the Managing Members and who shall
be unaffiliated with the Issuer and shall be among the 30 largest
investment banking firms, measured by total capital, in the
United States at the time of such exchange), (a) the Issuer is
not bankrupt, insolvent or in liquidation, (b) no Event of
Default or event that with the giving of notice or the passage of
time would constitute an Event of Default on any Securities
pertaining to Preferred Interests of any series, has occurred and
is continuing, (c) the Issuer has made timely payments on the
Series A Debentures for the immediately preceding 18 months, (d)
Capital is not in arrears on payments of distributions on the
Series A Preferred Securities, (e) there is then no present
reason to believe the Issuer will be unable to make timely
payment of principal and interest on such new debentures, (f)
such new debentures are being issued on terms, and under
circumstances, that are consistent with those which a lender
would then require for a loan to an unrelated party, (g) such new
debentures are being issued at a rate sufficient to provide
payments equal to or greater than the amount of distributions
required under the Series A Preferred Securities, (h) such
debentures are being issued for a term that is consistent with
market circumstances and the Issuer's financial condition, (i)
immediately prior to issuing such new debentures, the senior
unsecured long-term debt of the Issuer is (or if no such debt is
outstanding, would be) rated not less than BBB (or the
equivalent) by Standard & Poor's Corporation and Baa1 (or the
equivalent) by Moody's Investors Service, Inc. (or if either of
such rating organizations is not then rating the Issuer's senior
unsecured long-term debt, the equivalent of such rating by any
other "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act of 1933, as amended) and any
subordinated unsecured long-term debt of the Issuer or, if there
is no such debt then outstanding, the Series A Preferred
Securities, are rated not less than BBB- (or the equivalent) by
Standard & Poor's Corporation or Baa3 (or the equivalent) by
Moody's Investors Service, Inc. or the equivalent of either such
rating by any other "nationally recognized statistical rating
organization" and (j) such new debentures will have a final
maturity no later than the one hundredth anniversary of the
issuance of the Preferred Interests of the first series issued.
SECTION 2.7 Denomination and Interest on the Series A
Debentures. (a) The Series A Debentures shall be issuable as
Registered Securities in denominations of $25 and any multiple
thereof.
(b) The Series A Debentures shall bear interest at a
rate of ___% per annum accruing from , 1994 or from the
most recent Interest Payment Date (as defined below) to which
interest has been paid or provided for on the Series A
Debentures. To the extent allowed by law, the Issuer will also
pay interest on overdue installments of principal and interest at
such rate. The amount of interest payable for any full monthly
interest period shall be computed on the basis of twelve 30-day
months and a 360-day year and, for any period shorter than a full
monthly interest period, shall be computed on the basis of the
actual number of days elapsed in such period. Such interest
shall be payable monthly on the last day (an "Interest Payment
Date") of each calendar month, commencing on [April 30, 1994] to
the holder or holders of the Series A Debenture on the relevant
record date (each, a "Record Date"), which shall be one Business
Day prior to the relevant Interest Payment Date. If Interest
Payment Date is not a Business Day, then payment of the interest
payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day
(and the Record Date for such Interest Payment Date shall be one
Business Day prior to the date on which payment is to be made),
in each case with the same force and effect as if made on such
date.
SECTION 2.8 Additional Interest. If at any time
following the issuance of the Series A Preferred Securities and
prior to a Preferred Security Exchange, Capital shall be required
to pay, with respect to its income derived from the interest
payments on the Series A Debentures relating to the Series A
Preferred Securities, any amounts, for or on account of any
taxes, duties, assessments or governmental charges of whatever
nature imposed by the United States or any other taxing
authority, then, in any such case, the Issuer will pay as
interest such additional amounts ("Additional Interest") as may
be necessary in order that the net amounts received and retained
by Capital after the payment of such taxes, duties, assessments
or governmental charges shall result in Capital's having such
funds as it would have had in the absence of the payment of such
taxes, duties, assessments or governmental charges.
SECTION 2.9 Extension of Interest Period.
Notwithstanding the provisions of Section 2.7 hereof, the Issuer
shall have the right at any time or times during the term of the
Series A Debentures, so long as the Issuer is not in default in
the payment of interest under any of the Securities, to extend
the interest payment period for the Series A Debentures up to 18
months; provided that at the end of such period the Issuer shall
pay all interest then accrued and unpaid (together with interest
thereon at the rate specified for the Series A Debentures to the
extent permitted by applicable law); provided further that,
during any such extended interest period, neither the Issuer nor
any majority owned subsidiary of the Issuer shall pay or declare
any dividends on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock
(other than payments to redeem common share purchase rights under
the Issuer's shareholder rights plan dated July 10, 1986, as
amended, or to declare a dividend of similar share purchase
rights in the future); and provided further that any such
extended interest period may only be selected with respect to the
Series A Debentures if an extended interest period of identical
length is simultaneously selected for all Securities. Prior to
the termination of any such extended interest payment period for
the Series A Debentures, the Issuer may further extend the
interest payment period for the Series A Debentures; provided
that such extended interest payment period for the Series A
Debentures together with all such further extensions thereof, may
not exceed 18 months; and provided further that any such further
extended interest period may only be selected with respect to the
Series A Debentures if a further extended interest period of
identical length is simultaneously selected for all Securities.
Following the termination of any extended interest payment
period, if the Issuer has paid all accrued and unpaid interest
required by the Debentures for such period, then the Issuer shall
have the right to again extend the interest payment period up to
18 months as herein described. Prior to any Preferred Security
Exchange, the Issuer shall give Capital notice of its selection
of any extended interest payment period one Business Day prior to
the earlier of (i) the date Capital declares the related
distribution to holders of the Series A Preferred Securities or
(ii) the date Capital is required to give notice of the record or
payment date of such related distribution to the New York Stock
Exchange or other applicable self-regulatory organization or to
holders of the Series A Preferred Securities, but in any event
not less than two Business Days prior to such record date; the
Issuer shall cause Capital to give such notice of the Issuer's
selection of any extended interest payment period to all holders
of such Series A Preferred Securities. After any Preferred
Security Exchange, the Issuer shall give the Holders of the
Series A Debentures notice of its selection of any extended
interest payment prior to the date it is required to give notice
of the record or payment date of such interest payment to the New
York Stock Exchange or other applicable self-regulatory
organization, but in any event not less than two Business Days
prior to such Record Date.
SECTION 2.10 Set-off. Notwithstanding anything to the
contrary herein, prior to any Preferred Security Exchange the
Issuer shall have the right to set off any payment it is
otherwise required to make hereunder with and to the extent the
Issuer has theretofore made, or is concurrently on the date of
such payment making, a payment under the Guarantee.
SECTION 2.11 Certain Covenants. (a) So long as the
Series A Preferred Securities remain outstanding, neither the
Issuer nor any majority-owned subsidiary of the Issuer shall
declare or pay any dividend on, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of the Issuer's
capital stock or make any guarantee payments with respect to the
foregoing (other than payments under the Guarantee, payments to
redeem common share purchase rights under the Issuer's
shareholder rights plan dated July 10, 1986, as amended, or the
declaration of a dividend of similar share purchase rights in the
future) if at such time the Issuer is in default with respect to
its payment obligations under the Guarantee or the Expense
Agreement or there shall have occurred an Event of Default or any
event that, with the giving of notice or the lapse of time or
both, would constitute an Event of Default under the Securities.
(b) So long as the Series A Preferred Securities
remain outstanding, the Issuer shall (i) not cause or permit any
Common Interests to be transferred, (ii) maintain direct or
indirect ownership of all outstanding securities in Capital other
than the Preferred Interests of any series and any other
securities permitted to be issued by Capital that would not cause
Capital to become an "investment company" under the Investment
Company Act of 1940, as amended, (iii) cause at least 21% of the
total value of Capital and at least 21% of all interests in the
capital, income, gain, loss, deduction and credit of Capital to
be represented by Common Interests, (iv) not voluntarily
dissolve, windup or liquidate Capital or either of the Managing
Members, (v) cause HW Nebraska, Inc. and CP Nebraska, Inc. to
remain the Managing Members of Capital and timely perform all of
their respective duties as Managing Members of Capital, and (vi)
use reasonable efforts to cause Capital to remain a limited
liability company and otherwise continue to be treated as a
partnership for U.S. federal income tax purposes; provided that
the Issuer may permit Capital, solely for the purpose of changing
its domicile or avoiding tax consequences adverse to the Issuer,
Capital or holders of Series A Preferred Securities, to
consolidate or merge with or into a limited liability company or
a limited partnership formed under the laws of any state of the
United States of America; provided that (1) such successor
limited liability company or limited partnership (x) expressly
assumes all of the obligations of Capital under the Series A
Preferred Securities and other series of Preferred Interests then
outstanding or (y) substitutes for the Series A Preferred
Securities and other series of Preferred Interests then
outstanding other securities having substantially the same terms
as the Series A Preferred Securities and such other Preferred
Interests (the "Successor Securities") so long as the Successor
Securities rank, with respect to participation in the profits and
assets of such successor entity, at least as senior as the Series
A Preferred Securities and such other Preferred Interests rank
with respect to participation in the profits and assets of
Capital, (2) the Issuer expressly acknowledges such successor as
the holder of all of the Series A Debentures and other series of
debentures issued under the Indenture then outstanding, (3) such
merger or consolidation does not cause any series of Preferred
Interests then outstanding to be delisted by any national
securities exchange or other organization on which such series is
then listed, (4) the holders of Series A Preferred Securities and
such other Preferred Interests do not suffer any adverse tax
consequences as a result of such merger or consolidation,
(5) such merger or consolidation does not cause any Preferred
Interests to be downgraded by any "nationally recognized
statistical rating organization," as that term is defined by the
Securities and Exchange Commission for purposes of Rule 436(g)(2)
under the Securities Act of 1933, as amended, and (6) following
such merger or consolidation, neither the Issuer nor such
successor limited liability company or limited partnership will
be an "investment company" for purposes of the Investment Company
Act of 1940, as amended.
(c) So long as the Series A Preferred Securities
remain outstanding, the Issuer shall not consolidate with or
merge into any other Person or sell its property and assets as,
or substantially as, an entirety to any Person and shall not
permit any Person to merge into or consolidate with the Issuer
unless (i) in case the Issuer shall consolidate with or merge
into another Person or sell its properties and assets as, or
substantially as, an entirety to any Person, the Person formed by
such consolidation or into which the Issuer is merged or the
Person which purchases the properties and assets of the Issuer
as, or substantially, as an entirety shall be a corporation,
partnership or trust, shall be organized and validly existing
under the laws of the United States of America, any State or the
District of Columbia, and shall expressly assume the Issuer's
obligations under the Indenture, this Supplemental Indenture and
the Series A Debentures and (ii) immediately after giving effect
to the transaction no Event of Default shall have occurred and be
continuing.
SECTION 2.12 Events of Default; Remedies. Prior to
any Preferred Security Exchange, "Event of Default" means any one
of the following events:
(a) failure to pay when due any interest under any
Securities, including any Additional Interest, and such failure
shall continue for a period of 30 days (whether or not payment is
prohibited by the provisions contained in Article Thirteen of the
Indenture or otherwise); provided that a valid extension of the
interest payment period by the Issuer shall not constitute a
default in the payment of interest for this purpose;
(b) failure to pay when due any principal under any
Securities (whether or not payment is prohibited by the
provisions contained in Article Thirteen of the Indenture or
otherwise);
(c) failure on the part of the Issuer duly to observe
or perform any other covenant or agreement on the part of the
Issuer in respect of the Securities (other than a covenant or
warranty in respect of the Series A Debentures a default in the
performance or breach of which is elsewhere in this Section
specifically dealt with) or contained in the Indenture, this
Supplemental Indenture or the Series A Debentures, and
continuance of such default or breach for a period of 90 days
after there as been given, by registered or certified mail, to
the Issuer by the Trustee or any Holder hereof, a written notice
specifying such failure or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder;
(d) the dissolution, or winding up or liquidation of
Capital;
(e) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Issuer or
any Consolidated Subsidiary in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar
official) of the Issuer or any subsidiary or for any substantial
part of its property or ordering the winding up or liquidation of
its affairs, and such decree or order shall remain unstayed and
in effect for a period of 60 consecutive days; or
(f) the Issuer or any Consolidated Subsidiary shall
commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary
case under any such law, or consent to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official) of the Issuer or
any Consolidated Subsidiary or for any substantial part of its
property, or make any general assignment for the benefit of
creditors.
If an Event of Default shall occur and be continuing,
then Capital will have the right (i) to declare the principal of
and the interest on the Series A Debentures (including any
Additional Interest and any interest subject to an extension
election) and any other amounts payable under the Series A
Debentures to be forthwith due and payable, whereupon the same
shall become and be forthwith due and payable, without
presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived, anything in the Indenture,
this Supplemental Indenture or the Series A Debentures to the
contrary notwithstanding and (ii) to enforce its other rights
hereunder and thereunder. Capital may not accelerate the
principal amount of any Series A Debenture unless the principal
amount of all Securities is accelerated.
If an Event of Default specified in clauses (d), (e) or
(f) above shall have occurred, the principal of and interest on
the Series A Debentures shall thereupon and concurrently become
due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived,
anything in the Indenture, this Supplemental Indenture or the
Series A Debentures to the contrary notwithstanding.
If an Event of Default specified in clause (a) or (b)
above shall have occurred and be continuing and Capital shall
have failed to pay any distributions on the Series A Preferred
Securities when due (other than as a result of any valid
extension of the interest payment period by the Issuer for the
Series A Debentures Securities) or to pay any portion of the
redemption price of the Series A Preferred Securities called for
redemption, then any Holder of Series A Preferred Securities may,
as set forth in the terms of the Series A Preferred Securities,
enforce directly against the Issuer Capital's right hereunder to
receive payments of principal and interest on the Series A
Debentures relating to such Series A Preferred Securities but
only in an amount sufficient to enable Capital to pay such
distributions or redemption price.
The Issuer expressly acknowledges that under the terms
of Section 3.02(f) of the Operating Agreement and Section 9 of
the Written Action, the holders of the outstanding Series A
Preferred Securities together with the holder of other Preferred
Interests shall in certain circumstances have the right to
appoint a trustee, which trustee shall be authorized to exercise
Capital's creditor rights under the Indenture, this Supplemental
Indenture and the Series A Debentures and the Issuer agrees to
cooperate with such trustee; provided that nay trustee so
appointed shall vacate office immediately in accordance with
Section 3.02(f) of the Operating Agreement if all Events of
Default giving rise to such right of appointment have been cured
by the Issuer.
Except as provided in this Section 2.12, Holders of
Series A Preferred Securities shall have no rights to enforce any
obligations of the Issuer under the Indenture, this Supplemental
Indenture or the Series A Debentures.
On and after a Preferred Security Exchange, the
provisions of Article Five of the Indenture, including without
limitation the definition of an "Event of Default", shall apply
to the Series A Debentures and this Section 2.12 shall be of no
further force or effect.
SECTION 2.13 Book-Entry-Only Issuance; The Depository
Trust Company. On and after a Preferred Security Exchange, the
provisions of this Section 2.13 shall apply.
(a) DTC, New York, New York, will act as securities
depository for the Series A Debentures. The Series A Debentures
will be issued as one or more global certificates only as fully-
registered securities registered in the name of Cede & Co. (DTC's
partnership nominee). Such global certificates shall bear a
legend in the following form:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL, INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
THIS DEBENTURE IS IN GLOBAL FORM WITHIN THE MEANING OF
THE INDENTURE AND SUPPLEMENTAL INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A
NOMINEE OF DTC. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE
OR IN PART FOR DEBENTURES IN CERTIFICATED FORM, THIS
DEBENTURE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO
A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
or any other legend then customary for securities of a similar
nature held by DTC.
(b) Redemption notices shall be sent to Cede & Co. If
less then all of the Series A Debentures are being redeemed, such
securities shall be redeemed in accordance with DTC's then
current practice.
(c) DTC may discontinue providing its services as
securities depository with respect to the Series A Debentures by
giving reasonable notice to the Issuer as provided in the
agreement between the Issuer and DTC. Under such circumstances,
if a successor securities depository is not obtained, the Issuer
at its expense shall cause certificates for Series A Debentures
to be printed and delivered as promptly as practicable.
SECTION 2.14 Listing on the New York Stock Exchange.
Prior to a Preferred Security Exchange, the Issuer will use its
best efforts to have the Series A Debentures listed on the same
exchange on which the Series A Preferred Securities are listed.
ARTICLE THREE
MISCELLANEOUS
SECTION 3.1 Notices. All notices hereunder shall be
deemed given by a party hereto if in writing and delivered
personally or by telegram or facsimile transmission or by
registered or certified mail (return receipt requested) to the
other party at the following address for such party (or at such
other address as shall be specified by like notice):
If to Capital, to:
ConAgra Capital, L.C.
c/o ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Vice President-Finance
If to the Issuer, to:
ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Vice President-Finance
Any notice given by mail or telegram or facsimile
transmission shall be effective when received.
SECTION 3.2 Assignment; Binding Effect. The Issuer
shall have the right at all times to assign any of its rights or
obligations under the Indenture, this Supplemental Indenture and
the Series A Debentures to a direct or indirect wholly owned
subsidiary of the Issuer(other than to any Managing Member);
provided that, in the event of any such assignment, the Issuer
shall remain jointly and severally liable for all such
obligations; and provided further that in the event of an
assignment prior to a Preferred Security Exchange the Issuer
shall have received an opinion of nationally recognized tax
counsel that such assignment shall not constitute a taxable event
of the holders of Series A Preferred Securities for federal
income tax purposes. Except as otherwise provided in this
Supplemental Indenture, Capital may not assign any of its rights
under the Series A Debentures without the prior written consent
of the Issuer. Subject to the foregoing, the Indenture, this
Supplemental Indenture and the Series A Debentures shall be
binding upon and inure to the benefit of the Issuer, Capital, the
Holders from time to time of the Series A Debentures and their
respective successors and assigns. Except as provided in this
Section 3.2 or elsewhere in this Supplemental Indenture, none of
the Indenture, this Supplemental Indenture nor the Series A
Debentures may be assigned by either the Issuer or Capital and
any assignment by the Issuer or Capital in contravention of this
Section 3.2 shall be null and void.
SECTION 3.3 Governing Law. THIS SUPPLEMENTAL
INDENTURE AND THE SERIES A DEBENTURES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 3.4 Counterparts. This Supplemental Indenture
may be executed in counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one
and the same instrument.
Section 3.5 Amendments. This Supplemental Indenture
may be amended as set forth in Article Eight of the Indenture.
Notwithstanding the foregoing, so long as any Series A Preferred
Securities shall remain outstanding, (i) no amendment to the
provisions of the Indenture, this Supplemental Indenture or the
Series A Debentures shall be made that adversely affects the
holders of any Preferred Interests then outstanding, or terminate
the Indenture, this Supplemental Indenture or the Series A
Debentures, without in each case the prior consent of holders of
66-2/3% in stated liquidation preference of all Preferred
Interests then outstanding, unless and until all Securities and
all accrued and unpaid interest thereon (including Additional
Interest, if any) shall have been paid in full and (ii) without
the prior consent of holders of 100% in stated liquidation
preference of all Series A Preferred Securities then outstanding,
no amendment shall be made to the provisions of this clause (ii)
of Section 3.5 or to (a) extend the stated maturity of the
principal of any Debenture, or reduce the principal amount
thereof or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption
thereof or change the currency in which the principal thereof or
interest thereon is payable or impair the right to institute suit
for the enforcement of any payment on any Debenture when due or
(b) reduce the aforesaid percentage in principal amount of
Debentures of any series the consent of the holders of which is
required for any such modification. Any required consent of
holders of Preferred Interests pursuant to this Section 3.5 shall
be in writing or shall be obtained at a meeting of Preferred
Interestholders convened in the manner specified in 3.02(e) of
the Operating Agreement.
Section 3.6 Waivers. Capital may not waive compliance
or waive any default in compliance by the Issuer of any covenant
or other term in the Indenture, this Supplemental Indenture or
the Series A Debentures without the approval of the same
percentage of holders of Preferred Interests, obtained in the
same manner, as would be required for an amendment of the
Indenture, this Supplemental Indenture or the Series A Debentures
to the same effect; provided that if no approval would be
required for any such amendment, then Capital may waive such
compliance or default in any manner that the parties shall agree.
Section 3.7 Third Party Beneficiaries. The Issuer
hereby acknowledges that until a Preferred Security Exchange, the
holders from time to time of the Series A Preferred Securities
shall expressly be third party beneficiaries of this Supplemental
Indenture.
Section 3.8 Amendment to Indenture. Pursuant to
Section 8.1 of the Indenture, Section 8.2 of the Indenture is
hereby amended for purposes of any and all Securities, including
without limitation the Series A Debentures, issued under the
Indenture by substituting the phrase "of not less than 66-2/3%"
for the phrase "of not less than a majority" in the first clause
of such Section 8.2.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as of
the date and year first above written.
CONAGRA, INC.
By
Name:
Title:
[SEAL]
Attest:
__________________________
Name:
Title:
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By
Name:
Title:
[SEAL]
Attest:
__________________________
Name:
Title:
Exhibit A
[Form of Face of Series A Debenture]
No. $
ConAgra, Inc.
____% Series A Debentures due 2043
ConAgra, Inc., a Delaware corporation (the "Issuer"),
for value received, hereby promises to pay to
or registered assigns, at the office or agency of the Issuer in
The City of New York, the principal sum of
Dollars
on 2043, in such coin or currency of the United States
of America as at the time of payment shall be legal tender for
the payment of public and private debts, and to pay interest, at
a rate of ___% per annum accruing from , 1994 or from
the most recent Interest Payment Date (as defined below) to which
interest has been paid or provided for on the Series A
Debentures. To the extent allowed by law, the Issuer will also
pay interest on overdue installments of principal and interest at
such rate. The amount of interest payable for any full monthly
interest period shall be computed on the basis of twelve 30-day
months and a 360-day year and, for any period shorter than a full
monthly interest period, shall be computed on the basis of the
actual number of days elapsed in such period. Such interest
shall be payable monthly on the last day (an "Interest Payment
Date") of each calendar month, commencing on [April 30, 1994] to
the holder or holders of this Debenture on the relevant record
date (each, a "Record Date"), which shall be one Business Day
prior to the relevant Interest Payment Date. If Interest Payment
Date is not a Business Day, then payment of the interest payable
on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in
respect of any such delay) except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day (and the Record Date
for such Interest Payment Date shall be one Business Day prior to
the date on which payment is to be made), in each case with the
same force and effect as if made on such date. If at any time
following the issuance of the Series A Preferred Securities and
prior to a Preferred Security Exchange, Capital shall be required
to pay, with respect to its income derived from the interest
payments on the Series A Debentures relating to the Series A
Preferred Securities, any amounts, for or on account of any
taxes, duties, assessments or governmental charges of whatever
nature imposed by the United States or any other taxing
authority, then, in any such case, the Issuer will pay as
interest such additional amounts ("Additional Interest") as may
be necessary in order that the net amounts received and retained
by Capital after the payment of such taxes, duties, assessments
or governmental charges shall result in Capital's having such
funds as it would have had in the absence of the payment of such
taxes, duties, assessments or governmental charges.
Notwithstanding the forgoing, the Issuer shall have the right at
any time or times during the term of the Series A Debentures, so
long as the Issuer is not in default in the payment of interest
under any of the Securities, to extend the interest payment
period for the Series A Debentures up to 18 months; provided that
at the end of such period the Issuer shall pay all interest then
accrued and unpaid (together with interest thereon at the rate
specified for the Series A Debentures to the extent permitted by
applicable law); provided further that, during any such extended
interest period, neither the Issuer nor any majority owned
subsidiary of the Issuer shall pay or declare any dividends on,
or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock (other than payments to
redeem common share purchase rights under the Issuer's
shareholder rights plan dated July 10, 1986, as amended, or to
declare a dividend of similar share purchase rights in the
future); and provided further that any such extended interest
period may only be selected with respect to the Series A
Debentures if an extended interest period of identical length is
simultaneously selected for all Securities. Prior to the
termination of any such extended interest payment period for the
Series A Debentures, the Issuer may further extend the interest
payment period for the Series A Debentures; provided that such
extended interest payment period for the Series A Debentures
together with all such further extensions thereof, may not exceed
18 months; and provided further that any such further extended
interest period may only be selected with respect to the Series A
Debentures if a further extended interest period of identical
length is simultaneously selected for all Securities. Following
the termination of any extended interest payment period, if the
Issuer has paid all accrued and unpaid interest required by the
Debentures for such period, then the Issuer shall have the right
to again extend the interest payment period up to 18 months as
herein described. Prior to any Preferred Security Exchange, the
Issuer shall give Capital notice of its selection of any extended
interest payment period one Business Day prior to the earlier of
(i) the date Capital declares the related distribution to the
holders of the Series A Preferred Securities or (ii) the date
Capital is required to give notice of the record or payment date
of such related distribution to the holders of the Series A
Preferred Securities to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the
Series A Preferred Securities, but in any event not less than two
Business Days prior to such record date; the Issuer shall cause
Capital to give such notice of the Issuer's selection of any
extended interest payment period to all holders of such Series A
Preferred Securities. After any Preferred Security Exchange, the
Issuer shall give the Holders of the Series A Debentures notice
of its selection of any extended interest payment prior to the
date it is required to give notice of the record or payment date
of such interest payment to the New York Stock Exchange or other
applicable self-regulatory organization, but in any event not
less than two Business Days prior to such Record Date.
Reference is made to the further provisions of this
Debenture set forth on the reverse hereof. Such further
provisions shall for all purposes have the same effect as though
fully set forth at this place.
This Debenture shall not be valid or become obligatory
for any purpose until the certificate of authentication hereon
shall have been signed by the Trustee under the Indenture
referred to on the reverse hereof.
IN WITNESS WHEREOF, ConAgra, Inc. has caused this
instrument to be signed by facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be
affixed hereunto or imprinted hereon.
Dated:
ConAgra, Inc.
By______________________________
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
First Trust National Association,
as Trustee
By__________________________
Authorized Officer
[FORM OF REVERSE OF NOTE]
ConAgra, Inc.
____% Series A Debentures due 2043
This Debenture is one of a duly authorized issue of
debentures, notes, bonds or other evidences of indebtedness of
the Issuer (hereinafter called the "Securities") of the series
hereinafter specified, all issued or to be issued under and
pursuant to an indenture dated as of March 10, 1994 and a
Supplemental Indenture dated as of , 1994 (herein
collectively called the "Indenture"), duly executed and delivered
by the Issuer and First Trust National Association, as Trustee
(herein called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Issuer and
the holders of the Securities. The Securities may be issued in
one or more series, which different series may be issued in
various aggregate principal amounts, may mature at different
times, may bear interest (if any) at different rates, may be
subject to different redemption provisions (if any), may be
subject to different sinking, purchase or analogous funds (if
any) and may otherwise vary as in the Indenture provided. This
Debenture is one of a series designated as the "___% Series A
Debentures due 2043" (the "Series A Debentures") of the Issuer,
limited in aggregate principal amount to $___________ (or up to
$___________ aggregate principal amount if and to the extent the
underwriters' over-allotment option granted by the Issuer in the
Underwriting Agreement is exercised).
In case an Event of Default with respect to the Series
A Debentures, as defined in the Indenture, shall have occurred
and be continuing, the principal hereof may be declared, and upon
such declaration shall become, due and payable, in the manner,
with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Issuer
and the Trustee, with the consent of the Holders of not less than
66-2/3% in aggregate principal amount of the Securities at the
time Outstanding (as defined in the Indenture) of all series to
be affected (voting as one class), evidenced as in the Indenture
provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or
modifying in any manner the rights of the Holders of the
Securities of each such series; provided, however, that no such
supplemental indenture shall (i) extend the final maturity of any
Security, or reduce the principal amount thereof or any premium
thereon, or reduce the rate or extend the time of payment of any
interest thereon, or impair or affect the rights of any Holder to
institute suit for the payment thereof, without the consent of
the Holder of each Security so affected, or (ii) reduce the
aforesaid percentage of Securities, the Holders of which are
required to consent to any such supplemental indenture, without
the consent of the Holder of each Security affected. It is also
provided in the Indenture that, with respect to certain defaults
or Events of Default regarding the Securities of any series,
prior to any declaration accelerating the maturity of such
Securities, the Holders of a majority in aggregate principal
amount Outstanding of the Securities of such series (or, in the
case of certain defaults or Events of Default, all or certain
series of the Securities) may on behalf of the Holders of all the
Securities of such series (or all or certain series of the
Securities, as the case may be) waive any such past default or
Event of Default and its consequences. The preceding sentence
shall not, however, apply to a continuing default in the payment
of the principal of or premium, if any, or interest on any of the
Securities. Any such consent or waiver by the Holder of this
Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future
Holders and owners of this Debenture and any Debenture which may
be issued in exchange or substitution herefor, irrespective of
whether or not any notation thereof is made upon this Debenture
or such other Debentures.
No reference herein to the Indenture and no provision
of this Debenture or of the Indenture shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to
pay the principal of and any premium and interest on this
Debenture in the manner, at the respective times, at the rate and
in the coin or currency herein prescribed.
The Series A Debentures are issuable in registered form
without coupons in denominations of $25 and any integral multiple
of $25 at the office or agency of the Issuer in the Borough of
Manhattan, The City of New York, and in the manner and subject to
the limitations provided in the Indenture, but without the
payment of any service charge, notes may be exchanged for a like
aggregate principal amount of Series A Debentures of other
authorized denominations.
Upon not less than 30 nor more than 60 days' prior
notice, the Issuer shall have the right to prepay the Series A
Debentures relating to the Series A Preferred Securities
(together with any accrued but unpaid interest, including
Additional Interest, if any, on the portion being prepaid),
without premium or penalty,
(i) in whole or in part, as the case may be, at any
time on or after , 1999; and
(ii) in whole at any time if the Issuer and Capital
have been advised by independent nationally recognized legal
counsel that, as a result of any change after , 1994
in United States law (including the enactment or imminent
enactment of any legislation, the publication of any
judicial decisions or regulatory rulings or a change in the
official position or in the interpretation of law or
regulations), there exists more than an insubstantial risk
that the Issuer will be precluded from deducting the
interest on the Series A Debentures for federal income tax
purposes even if the Series A Preferred Securities are
exchanged for the Series A Debentures pursuant to a
Preferred Security Exchange,
all as further provided in the Indenture.
The Series A Debentures are, to the extent and in the
manner provided in the Indenture, expressly subordinate and
junior in right of payment of all Senior Indebtedness as provided
in the Indenture, and each holder of this Debenture, by his
acceptance hereof, agrees to and shall be bound by such
provisions of the Indenture and authorizes and directs the
Trustee in his behalf to take such action as appropriate to
effectuate such subordination and appoints the Trustee his
attorney-in-fact for any and all such purposes. The Indenture
defines Senior Indebtedness as obligations (other than non-
recourse obligations and the Securities) of, or guaranteed or
assumed by, the Issuer for borrowed money (including both senior
and subordinated indebtedness for borrowed money (other than the
Securities)) or evidenced by bonds, debentures, notes or other
similar instruments, and amendments, renewals, extensions,
modifications and refundings of any such indebtedness or
obligation, whether existing as of the date hereof or
subsequently incurred by the Issuer.
Upon due presentment for registration of transfer of
this Debenture at the office or agency of the Issuer in the
Borough of Manhattan, The City of New York, a new Debenture or
Debentures of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture,
without charge except for any tax or other governmental charge
imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the
Issuer or the Trustee may deem and treat the registered Holder
hereof as the absolute owner of this Debenture (whether or not
this Note shall be overdue and notwithstanding any notation of
ownership or other writing hereon), for the purpose of receiving
payment of, or on account of, the principal hereof and premium,
if any, and subject to the provisions on the face hereof,
interest hereon, and for all other purposes, and neither the
Issuer nor the Trustee nor any authorized agent of the Issuer or
the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or
agreement of the Issuer in the Indenture or any indenture
supplemental thereto or in any Debenture, or because of the
creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as
such, of the Issuer or of any successor corporation, either
directly or through the Issuer or any successor corporation,
under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly
waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
Terms used herein which are defined in the Indenture
shall have the respective meanings assigned thereto in the
Indenture.
EXHIBIT 8.1
DAVIS POLK & WARDWELL
450 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017
(212) 450-4000
March 30, 1994
ConAgra, Inc.
ConAgra Capital, L.C.
One ConAgra Drive
Omaha, Nebraska 68102-5001
Re: Prospectus Supplement - ConAgra Capital, L.C.
___% Series A Cumulative Preferred Securities
Dear Sirs:
We have acted as special tax counsel for ConAgra
Capital, L.C. ("ConAgra Capital") and ConAgra, Inc. in connection
with the registration of U.S.$450,000,000 ConAgra Capital
Preferred Securities and ConAgra Debt Securities. In connection
therewith, we have reviewed the discussion set forth under the
caption "CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES"
(the "Discussion") in the prospectus supplement (the "Prospectus
Supplement") relating to ConAgra Capital's ___% Series A
Cumulative Preferred Securities filed by ConAgra Capital and
ConAgra with the Securities and Exchange Commission on March 30,
1994.
In rendering our opinion, we have relied upon, among
other things, (i) certain representations and covenants of
ConAgra Capital and ConAgra and (ii) the opinion of Dickinson,
Mackaman, Tyler & Hagen, P.C. Assuming the proceeds of the
offering of the Preferred Securities are used as described in the
Prospectus under the caption "Use of Proceeds," it is our opinion
that the Discussion is accurate.
We hereby consent to the use of our name under the
caption "CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES"
in the Prospectus Supplement. The issuance of such a consent
does not concede that we are an "expert" for the purposes of the
Securities Act of 1933.
Very truly yours,
/s/ Davis Polk & Wardwell
EXHIBIT 10.1
PAYMENT AND GUARANTEE AGREEMENT
THIS PAYMENT AND GUARANTEE AGREEMENT (the "Guarantee"),
dated as of _______________, is executed and delivered by
ConAgra, Inc., a Delaware corporation ("ConAgra" or the
"Guarantor") for the benefit of the Holders (as defined below)
from time to time of the Preferred Interests (as defined below)
of ConAgra Capital L.C., a limited liability company organized
under the laws of the state of Iowa (the "Issuer").
WHEREAS, the Issuer intends to issue its Common
Membership Interests (the "Common Interests") to and receive
related capital contributions (the "Common Interest Payments")
from HW Nebraska, Inc. and CP Nebraska, Inc. (the "Managing
Members") and to issue and sell from time to time, in one or more
series, Series Preferred Membership Interests (the "Preferred
Interests") with a liquidation preference (the "Liquidation
Preference") established by a written action or actions of the
Managing Members providing for the issue of such series;
WHEREAS, the Issuer will purchase debentures (the
"Debentures") issued pursuant to the Subordinated Indenture (the
"Subordinated Indenture") dated as of March 10, 1994, between the
Guarantor and First Trust National Association, a national
banking corporation, as trustee, with the proceeds from the
issuance and sale of the Preferred Interests and with the
proceeds from the issuance and sale of the Common Interest
Payments; and
WHEREAS, the Guarantor desires hereby to irrevocably
and unconditionally agree to the extent set forth herein to pay
to the Holders the Guarantee Payments (as defined below) and to
make certain other payments on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the purchase by
each Holder of the Preferred Interests, which purchase the
Guarantor hereby agrees shall benefit the Guarantor and which
purchase the Guarantor acknowledges will be made in reliance upon
the execution and delivery of this Guarantee, the Guarantor
executes and delivers this Guarantee for the benefit of the
Holders.
ARTICLE I
As used in this Guarantee, the terms set forth below
shall, unless the context otherwise requires, have the following
meanings. Capitalized terms used but not otherwise defined
herein shall have the meanings assigned to such terms in the
Limited Liability Company Operating Agreement of the Issuer dated
as of March __, 1994.
"Expense Agreement" shall mean the Agreement as to
Expenses and Liabilities entered into between the Issuer and
ConAgra pursuant to which ConAgra has agreed to guarantee the
payment of any indebtedness or liabilities incurred by the Issuer
(other than obligations to Holders of Preferred Interests in such
Holders' capacities as holders of such Preferred Interests).
"Guarantee Payments" shall mean the following payments,
without duplication, to the extent not paid by the Issuer: (i)
any accumulated and unpaid distributions which have been
theretofore declared on the Preferred Interests of any series out
of funds legally available therefor, (ii) the redemption price
(including all accumulated and unpaid distributions) payable out
of funds legally available therefor with respect to any Preferred
Interests of any series called for redemption by the Issuer and
(iii) upon the liquidation of the Issuer, the lesser of (a) the
Liquidation Distribution (as defined below) and (b) the amount of
assets of the Issuer legally available for distribution to
Holders of Preferred Interests of such series in liquidation.
"Holder" shall mean any holder from time to time of any
Preferred Interests of any series of the Issuer; provided,
however, that in determining whether the Holders of the requisite
percentage of Preferred Interests have given any request, notice,
consent or waiver hereunder, "Holder" shall not include the
Guarantor or any entity owned 50% or more by the Guarantor,
either directly or indirectly.
"Liquidation Distribution" shall mean the aggregate of
the stated Liquidation Preference of all series of Preferred
Interests issued and outstanding and all accumulated and unpaid
distributions (whether or not declared) to the date of payment.
"Managing Members" refers to HW Nebraska, Inc. and CP
Nebraska, Inc. in their capacity as holders of all of the
Issuer's Common Interests.
"Redemption Price" shall mean the stated Liquidation
Preference per Preferred Interest plus accumulated and unpaid
distributions (whether or not declared) to the date fixed for
redemption.
ARTICLE II
Section 2.01. The Guarantor irrevocably and
unconditionally agrees, to the extent set forth herein, to pay in
full, to the Holders the Guarantee Payments, as and when due
(except to the extent paid by the Issuer), regardless of any
defense, right of set-off or counterclaim which the Issuer may
have or assert.
This Guarantee is continuing, irrevocable,
unconditional and absolute. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to such Holders.
Section 2.02. The Guarantor hereby waives notice of
acceptance of this Guarantee and of any liability to which it
applies or may apply, presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption
and all other notices and demands.
Section 2.03. The obligations, covenants, agreements
and duties of the Guarantor under this Guarantee shall in no way
be affected or impaired by reason of the happening from time to
time of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer of
any express or implied agreement, covenant, term or
condition relating to the Preferred Interests to be
performed or observed by the Issuer;
(b) the extension of time for the payment by the
Issuer of all or any portion of the redemption price,
liquidation or other distributions or any other sums payable
under the terms of the Preferred Interests or the extension
of time for the performance of any other obligation under,
arising out of, or in connection with, the Preferred
Interests;
(c) any failure, omission, delay or lack of diligence
on the part of the Holders to enforce, assert or exercise
any right, privilege, power or remedy conferred on the
Holders pursuant to the terms of the Preferred Interests, or
any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership,
insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, any
of the Preferred Interests; or
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of
any of the foregoing.
Section 2.04. This is a guarantee of payment and not
of collection. A Holder may enforce this Guarantee directly
against the Guarantor, and the Guarantor waives any right or
remedy to require that any action be brought against the Issuer
or any other person or entity before proceeding against the
Guarantor. Subject to Section 2.05 hereof, all waivers herein
contained shall be without prejudice to the Holders' right at the
Holders' option to proceed against the Issuer, whether by
separate action or by joinder. The Guarantor agrees that this
Guarantee shall not be discharged except by payment of the
Guarantee Payments in full (to the extent not paid by the Issuer)
and by complete performance of all obligations of the Guarantor
contained in this Guarantee.
Section 2.05. The Guarantor shall be subrogated to all
(if any) rights of the Holders against the Issuer in respect of
any amounts paid to the Holders by the Guarantor under this
Guarantee and shall have the right to waive payment of any amount
of distributions in respect of which payment has been made to the
Holders by the Guarantor pursuant to Section 2.01 hereof;
provided, however, that the Guarantor shall not (except to the
extent required by mandatory provisions of law) exercise any
rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a
result of a payment under this Guarantee, if, at the time of any
such payment, any amounts are due and unpaid under this
Guarantee. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to pay
over such amount to the Holders.
Section 2.06. The Guarantor acknowledges that its
obligations hereunder are independent of the obligations of the
Issuer with respect to the Preferred Interests and that the
Guarantor shall be liable as principal and sole debtor hereunder
to make Guarantee Payments pursuant to the terms of this
Guarantee notwithstanding the occurrence of any event referred to
in subsections (a) through (f), inclusive, of Section 2.03
hereof.
ARTICLE III
Section 3.01. So long as any Preferred Interests of
any series remain outstanding, the Guarantor shall not and shall
not permit any of its majority owned subsidiaries to declare or
pay any dividends on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Guarantor's
capital stock or make any guarantee payments with respect to the
foregoing (other than (i) payments under this Guarantee or (ii)
payments to redeem common share purchase rights under the
Guarantor's shareholder rights plan dated July 10, 1986, as
amended, or the declaration of a dividend of similar share
purchase rights in the future), if at such time the Guarantor
shall be in default with respect to its payment obligations
hereunder or there shall have occurred any event that, with the
giving of notice or the lapse of time or both, would constitute
an Event of Default under the Debentures.
Section 3.02. The Guarantor covenants, so long as any
Preferred Interests of any series remain outstanding it will: (i)
not cause or permit any Common Interests of the Issuer to be
transferred; (ii) maintain direct or indirect 100% ownership of
all outstanding interests of the Issuer other than the Preferred
Interests of any series and any other securities permitted to be
issued by the Issuer that would not cause it to become an
"investment company" under the Investment Company Act of 1940, as
amended; (iii) cause at least 21% of the total value of the
Issuer and at least 21% of all interests in the capital, income,
gain, loss, deduction and credit of the Issuer to be represented
by Common Interests; (iv) not voluntarily dissolve, wind-up or
liquidate the Issuer or either of the Managing Members; (v) cause
HW Nebraska, Inc. and CP Nebraska, Inc. to remain the Managing
Members of the Issuer and timely perform all of their respective
duties as Managing Members (including the duty to declare and pay
distributions on the Preferred Interests) and (vi) to use
reasonable efforts to cause the Issuer to remain a limited
liability company under the laws of the State of Iowa and
otherwise continue to be treated as a partnership for United
States federal income tax purposes; provided that the Guarantor
may, solely to change the domicile of the Issuer or to avoid
tax consequences adverse to the Guarantor or Issuer or holders of
Preferred Interests , permit the Issuer to consolidate or
merge with or into a limited liability company or limited
partnership organized as such under the laws of any state of the
United States of America so long as:
(a) such successor entity either (x)
expressly assumes all of the obligations of the Issuer under
each series of Preferred Interest then outstanding or
(y) substitutes for the Preferred Securities then
outstanding other securities having substantially the same
terms as the Preferred Interests then outstanding (the
"Successor Securities") so long as the Successor Securities
rank with respect to participation in the profits or assets
of the successor entity, at least as senior as the
respective Preferred Interests rank with respect to
participation in the profits or assets of Issuer ,
(b) the Guarantor expressly acknowledges such
successor as the holder of all of the Debentures relating to
each series of Preferred Interests then outstanding,
(c) such merger or consolidation does not cause any
series of Preferred Interests then outstanding to be
delisted by any national securities exchange or other
organization on which such series is then listed,
(d) Holders of outstanding Preferred Interests do not
suffer any adverse tax consequences as a result of such
merger or consolidation,
(e) such merger or consolidation does not cause any
series of Preferred Interests to be downgraded by any
"nationally recognized statistical rating organization," as
such term is defined by the Securities and Exchange
Commission for purposes of Rule 436(g)(2) under the
Securities Act of 1933, as amended, and
(f) following such merger or consolidation, neither
the Guarantor nor such successor limited liability company
are an "investment company" under the Investment Company Act
of 1940, as amended.
Section 3.03. The Guarantee will constitute an
unsecured obligation of the Guarantor and will rank (i)
subordinate and junior in right of payment to all other
liabilities of the Guarantor, (ii) pari passu with the most
senior preferred stock now or hereafter issued by the Guarantor
and with any guarantee now or hereafter entered into by the
Guarantor in respect of any preferred or preference stock of any
affiliate of the Guarantor and (iii) senior to the Guarantor's
common stock.
ARTICLE IV
This Guarantee shall terminate and be of no further
force and effect as to any series of Preferred Interest upon full
payment of the Redemption Price of all Preferred Interests of
such series, and shall terminate completely upon full payment of
the amounts payable to the Holders upon liquidation of the
Issuer; provided, however, that this Guarantee shall continue to
be effective or shall be reinstated, as the case may be, if at
any time any holder of Preferred Interests of any series must
restore payment of any sums paid under the Preferred Interests of
such series or under this Guarantee for any reason whatsoever.
The Guarantor agrees to indemnify each Holder and hold it
harmless against any loss it may suffer in such circumstances.
ARTICLE V
Section 5.01. All guarantees and agreements contained
in this Guarantee shall bind the successors, assigns, receivers,
trustees and representatives of the Guarantor and shall inure to
the benefit of the Holders. The Guarantor shall not assign its
obligations hereunder without the prior approval of the Holders
of not less than 66-2/3% in liquidation preference of all
Preferred Interests of all series then outstanding voting as a
single class.
Section 5.02. Except with respect to any changes which
do not adversely affect the rights of Holders (in which cases no
vote will be required), this Guarantee may only be amended by
instrument in writing signed by the Guarantor with the prior
approval of the Holders of not less than 66-2/3% in stated
liquidation preference of all Preferred Interests of all series
then outstanding voting as a single class.
Section 5.03. Any notice, request or other
communication required or permitted to be given hereunder to the
Guarantor shall be given in writing by delivering the same
against receipt therefor by facsimile transmission (confirmed by
mail), addressed to the Guarantor, as follows (and if so given,
shall be deemed given when mailed), to wit:
ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102-5001
Attn: Treasurer
Fax: (402) 595-4438
Telephone: (402) 595-4000
Any notice, request or other communication required or
permitted to be given hereunder to the Holders shall be given by
the Guarantor in the same manner as notices sent by the Issuer to
the Holders.
Section 5.04. The masculine and neuter genders used
herein shall include the masculine, feminine and neuter genders.
Section 5.05. This Guarantee is solely for the benefit
of the Holders and is not separately transferable from the
Preferred Interests.
Section 5.06. THIS GUARANTEE SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
THIS GUARANTEE is executed as of the day and year first
above written.
ConAgra, Inc.
By _____________________
Name:
Title:
