As filed with the Securities and Exchange Commission on December 20, 1994
Registration Statement No. 33-_____________
and No. 33-_____________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________
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
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this registration statement.
If the securities being registered on this Form are being offered
pursuant to dividend or interest reimbursement plans, please check the
following box. /__/
If any of the securities being registered on this Form are being
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. /X/
__
__________________________
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
---------------------------------------------------------------------------
-
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH AMOUNT OFFERING AGGREGATE AMOUNT OF
CLASS OF SECURITIES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED SECURITY(1) PRICE(2)
FEE
<S> <C> <C> <C> <C>
ConAgra, Inc. Debt
Securities ...........
ConAgra Capital, L.C.
Preferred Securities..
ConAgra, Inc. Backup
Undertakings consisting {$250,000,000 100% $250,000,000 $86,207
of certain obligations
to be incurred by
ConAgra, Inc. with
respect to ConAgra
Capital L.C. Preferred
Securities(2).........
__________________________
------------
<FN>
(1) Estimated solely for the purposes of calculating the registration fee.
(2) Backup Undertakings consist of certain obligations which may be
incurred by ConAgra, Inc. in connection with ConAgra Capital, L.C.
securities, including debentures of ConAgra, Inc., a ConAgra Guarantee
Agreement, and a ConAgra Expense Payment Agreement. No separate
consideration will be received for the Backup Undertakings offered
with respect to the ConAgra Capital, L.C. Preferred Securities.
</TABLE>
The registrants hereby amend this registration statement on such date
or dates as may be necessary to delay its effective date until the
registrants shall file a further amendment which specifically states that
this registration statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the registration
statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
Pursuant to Rule 429 of the General Rules and Regulations under the
Securities Act of 1933, the Prospectus which is a part of this registration
statement is a combined Prospectus relating also to registration statements
Nos. 33-52649 and 33-52649-01.
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.
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--
Subject to completion dated December __, 1994.
PROSPECTUS
[ConAgra Logo]
$425,000,000
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 $425,000,000, 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 $425,000,000 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
limited basis (the "Limited 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 Limited 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 Limited
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.
_______________
_______________
The date of this Prospectus is December __, 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
3
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 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
4
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 29, 1994;
2. Quarterly Report on Form 10-Q of ConAgra for the fiscal
quarter ended August 28, 1994; and
3. Current Report on Form 8-K dated June 8, 1994.
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
5
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's prepared food brands
include Armour, Chun King Frozen, Banquet, Healthy Choice, Kid
Cuisine, Country Pride, Country Skillet, Monfort, Longmont,
Morton, Patio, Taste O'Sea, Decker, Golden Star, Webber Farms,
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, Act II. and Marie Callender's.
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 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
6
Australia, Golden Valley Microwave Foods, Universal Frozen Foods
and MC Retail Foods. ConAgra anticipates that it will continue
to grow internally and through acquisitions.
ConAgra is divesting certain non-core businesses. These
include but are not limited to specialty retailing businesses, a
pet accessories business and Geldermann, Inc., a financial
services business. The Geldermann divestiture has been
completed. Sales and earnings of businesses divested and
identified for divestiture account for less than five percent of
ConAgra's total sales and earnings and are not material to
ConAgra's results of operations.
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
7
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.
<TABLE>
<CAPTION>
Three Months
Ended Fiscal Years Ended May
August 28, -------------------------------------
1994 1994 1993 1992 1991 1990
---------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
2.2 2.7 2.5 2.2 2.2 2.5
</TABLE>
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
8
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 written actions 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 are set forth 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
9
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 any additional 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.
Series A Preferred Securities
ConAgra Capital has $100,000,000 aggregate principal amount
of its 9% Series A Cumulative Preferred Securities (the "Series A
Preferred Securities") outstanding entitled to cumulative
preferential cash dividends at an annual rate of 9% of the
liquidation preference of $25 per security, accruing from April
27, 1994, and payable monthly in arrears on the last day of each
calendar month of each year, commencing May 31, 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 May 31, 1999 at $25 per security plus
accumulated and unpaid dividends to the date of redemption
("Series A Applicable Price"), and will be redeemed at such price
from the proceeds of any permanent repayment of the Series A
Debentures issued by ConAgra to ConAgra Capital upon the loan to
ConAgra of the proceeds from the sale of the Series A Preferred
Securities. ConAgra may, at any time following a Tax Event (as
defined under "Redemption and Exchange" below) occurring after
April 20, 1994, cause ConAgra Capital (i) to exchange the Series
A Preferred Securities for Series A Debentures or (ii) in
certain circumstances relating to the nondeductibility of
interest on the Series A Debentures, to redeem the Series A
Preferred Securities at the Series A Applicable Price. The
10
Series A Preferred Securities were sold on April 27, 1994 and are
listed on the New York Stock Exchange.
The Series A Preferred Securities and the Series B Preferred
Securities, described below, rank pari passu with each other with
respect to dividends, payments under the Limited Guarantee and
payments upon liquidation of the assets of ConAgra Capital.
Series B Preferred Securities
ConAgra Capital has $175,000,000 aggregate principal amount
of its Series B Adjustable Rate Cumulative Preferred Securities
(the "Series B Preferred Securities") outstanding entitled to
cumulative preferential cash dividends equal to the highest of
certain treasury bill rates. Dividends are payable monthly in
arrears on the last day of each calendar month of each year,
commencing June 30, 1994 and the dividend rate is adjusted
quarterly. The dividend rate for the dividend periods ending
December 31, 1994 and January 31 and February 28, 1995 will be
7.695% per annum. The Series B Preferred Securities are
redeemable, at the option of ConAgra Capital (with ConAgra's
consent), in whole or in part, from to time, on or after June 30,
1999 at $25.00 per security plus accumulated and unpaid dividends
to the date of redemption ("Series B Applicable Price"), and will
be redeemed at such price from the proceeds of any permanent
repayment of the Series B Debentures issued by ConAgra to ConAgra
Capital upon the loan to ConAgra of the proceeds from the sale of
the Series B Preferred Securities. ConAgra may, at any time
following a Tax Event occurring after June 1, 1994, cause ConAgra
Capital (i) to exchange the Series B Preferred Securities for
Series B Debentures or (ii) in certain circumstances relating to
the nondeductibility of interest on the Series B Debentures, to
redeem the Series B Preferred Securities at the Series B
Applicable Price. The Series B Preferred Securities were sold on
June 8, 1994, and are listed on the New York Stock Exchange.
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 applicable to the Preferred Securities of a
particular series will be the fixed rate per annum specified in
the Prospectus Supplement relating to such series or will be
determined pursuant to the formula specified in such Prospectus
Supplement. 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
11
may only pay dividends to the extent it has funds legally
available to make such payments. See "Description of the Limited
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
12
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."
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
13
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 are in compliance with the
Investment Company Act of 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 and Exchange
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.
14
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
15
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 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 Preferred Securities of any series at the Redemption
Price for such series 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
Debentures relating to the Preferred Securities of such series
for federal income tax purposes even if the Preferred Securities
of such series were exchanged for such 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 Preferred Securities of a series for Debentures relating to
the Preferred Securities of such series having an aggregate
principal amount and accrued and unpaid interest equal to the
Redemption Price of such Preferred Securities and an interest
rate thereon equal to the dividend rate on such 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
relating to the Preferred Securities of such series, 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 Debentures relating
to such Preferred Securities for federal income tax purposes or
(ii) ConAgra Capital is subject to federal income tax with
respect to the interest received on such Debentures.
After the date fixed for any such exchange, (i) the
Preferred Securities of such series will no longer be deemed to
be outstanding, (ii) DTC or its nominee, as the record holder of
such Preferred Securities, will exchange the global certificate
or certificates representing such Preferred Securities for a
registered global certificate or certificates representing the
Debentures to be delivered upon such exchange and (iii) any
certificates representing such Preferred Securities not held by
DTC or its nominee will be deemed to represent Debentures having
a principal amount equal to the stated liquidation preference of
16
such Preferred Securities until such certificates are presented
to ConAgra Capital or its agent for exchange.
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
Limited 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
17
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 Limited Guarantee (as described under
"Description of the Limited Guarantee -- Certain Covenants of
ConAgra"), then the holders of a majority in stated liquidation
18
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 Limited
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
19
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
20
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
21
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
22
Capital believes to be reliable, but neither ConAgra Capital nor
ConAgra takes responsibility for the accuracy thereof.
Registrar, Transfer Agent and Paying Agent
Chemical Bank will 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 have entered into an agreement
(the "Expense Agreement") pursuant to which ConAgra agrees to
guarantee the payment of any liabilities incurred by ConAgra
Capital other than obligations to holders of Preferred
Securities, which are separately guaranteed to the extent set
forth in the Limited Guarantee. See "Description of the Limited
Guarantee." The Expense Agreement expressly provides that it is
for the benefit of, and is enforceable by, third parties to whom
ConAgra Capital owes such obligations. A copy of the Expense
Agreement has been filed as an exhibit to the Registration
Statement of which this Prospectus forms a part.
DESCRIPTION OF THE LIMITED GUARANTEE
Set forth below is condensed information concerning the
limited guarantee (the "Limited Guarantee") 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 Limited Guarantee but does not purport
to be complete. References to provisions of the Limited
Guarantee are qualified in their entirety by reference to the
text of the Limited Guarantee, which has been filed as an exhibit
to the Registration Statement of which this Prospectus forms a
part.
General
23
ConAgra has irrevocably and unconditionally agreed, 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 Limited 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 Limited Guarantee, ConAgra covenants 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 Limited 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 Limited 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 Limited Guarantee, ConAgra also covenants 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,
24
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 Limited 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 Limited 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 Limited Guarantee
The Limited 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
Limited 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
Limited Guarantee.
Status of the Limited Guarantee
The Limited Guarantee constitutes an unsecured obligation of
ConAgra and ranks (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
25
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 Limited Guarantee are entitled must be
shared with holders of any preferred or preference stock to which
the Limited Guarantee is stated to be pari passu ("Pari Passu
Stock") to the same extent as would be required under applicable
law if instead the Limited Guarantee constituted a class of
preferred or preference stock of ConAgra ranking pari passu with
such Pari Passu Stock as to such payments.
The Limited Guarantee constitutes a guarantee of payment and
not of collection. Accordingly, a holder of Preferred Securities
may enforce the Limited 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 Limited 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 Limited
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 Limited 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, which has
been incorporated by reference as an exhibit to the Registration
Statement of which this Prospectus forms a part. All Debentures
will be issued under the Subordinated Indenture. As of the date
of this Prospectus, ConAgra had $100,000,000 of Series A
Debentures, $26,600,000 Series AA Debentures, $175,000,000 Series
26
B Debentures and $46,519,000 of Series BB Debentures outstanding
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 the Debentures relating to
Preferred Securities of any series 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 fortyninth anniversary of the
issuance of the Preferred Securities of such series, 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 fixed annual rate set forth in the
Prospectus Supplement for such series, or shall bear interest in
the manner otherwise specified in such Prospectus Supplement, in
each case accruing from the date they are issued until maturity.
27
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. The amount of interest
payable for any full monthly interest 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 interest period, will be
computed on the basis of the actual number of days elapsed in
such period.
Option to Extend Interest Payment Period
ConAgra shall have the right at any time or times during the
term of the Debentures relating to Preferred Securities of a
series, 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
on each monthly installment of interest at the rate used to
compute such monthly installment 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
28
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.
29
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
thedate ofsuch paymentmaking, apayment underthe LimitedGuarantee.
Subordination
The Subordinated Indenture provides 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
30
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 covenants 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 Limited 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 Limited 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 also covenants 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
31
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 has 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 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
32
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 has 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 are
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
33
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 the ownership and
disposition of Debentures received by holders of the Preferred
Securities. The summary 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 and Debentures 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 and Debentures 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 AND THE OWNERSHIP AND DISPOSITION OF THE
DEBENTURES, 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 (which is allocated monthly)
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.
34
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.
Sale, Exchange or Redemption 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 -- Effect on
Securityholders
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. The Debentures will, therefore,
be treated as issued at an "original issue discount" under
Treasury Regulations if the interest payment period of such
Debentures can be extended by ConAgra. The likelihood of
extension of the payment period is, in the view of ConAgra
Capital and ConAgra, remote because ConAgra may not declare
dividends on any shares of its preferred or common stock in the
event that ConAgra exercises its right to extend the interest
payment period. However, 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
35
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.
Exchange of the Preferred Securities for Debentures of ConAgra
Under certain circumstances as described under the caption
"Description of the Preferred Securities -- Redemption and
Exchange" in this Prospectus, ConAgra Capital may distribute the
Debentures relating to Preferred Securities of a series in
exchange for the Preferred Securities. Such an exchange will be
treated as a non-taxable exchange to each Securityholder whose
only interest in ConAgra Capital is Preferred Securities of such
series and will result in such Securityholder receiving an
aggregate tax basis in the Debentures relating to the Preferred
Securities of such series equal to such Securityholder's
aggregate tax basis in its Preferred Securities. Such
Securityholder's holding period in the Debentures so received in
exchange for Preferred Securities will include the period for
which the Preferred Securities were held by the Securityholder.
Income on the Debentures
As discussed above, the Debentures will be treated as issued
at an original issue discount if ConAgra is permitted to extend
the interest payment period under the terms of such Debentures.
Thus, after the exchange of Preferred Securities for Debentures,
holders of the Debentures will be required to include the daily
portions of the interest on the 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 Debentures will be increased by accrued
interest previously included as income by the holder. Periodic
payments of interest, however, will not be included in income;
instead, such amounts will reduce the holder's tax basis in the
Debentures.
Sale, Exchange or Retirement of Debentures
Upon the sale, exchange or retirement of 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 Debenture.
Subject to the following discussion concerning market discount
and bond premium, such gain or loss will be capital gain or loss.
Holders other than initial purchasers who acquire the
Preferred Securities at the original offering price may be
36
considered to have acquired the 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 ownership and disposition of the
Debentures.
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 or to any
holder of a Debenture 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
thereof 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 is not
a controlled foreign corporation that is related to ConAgra
through stock ownership, and (c) either (A) the beneficial
owner 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 or Debenture 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 or Debenture will not be subject to United States
federal withholding tax on any gain realized upon the sale
or other disposition of Preferred Securities or Debentures.
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
37
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 incorporated
by reference as an exhibit to the Registration Statement of which
this Prospectus forms a part, or (ii) the Subordinated Indenture,
as supplemented by the First Supplemental Indenture dated April
20, 1994, Second Supplemental Indenture dated April 20, 1994,
Third Supplemental Indenture dated June 1, 1994 and Fourth
Supplemental Indenture dated June 1, 1994, copies of which have
been incorporated by reference as exhibits 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
38
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.
39
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
40
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.
41
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
42
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.
43
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
44
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
45
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
46
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
47
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)
48
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)
49
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, (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 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
Securities 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 Securities 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
50
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 Securities 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 Securities
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
51
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 29,
1994 have been audited by Deloitte & Touche LLP, 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 audited 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 audited 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.
52
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 $ 86,207
Blue Sky Fees and Expenses $ 15,000*
Printing Expenses $ 70,000*
Listing Fees $ 72,300
Accounting Fees and Expenses $ 20,000*
Trustee Fees $ 3,000*
Legal Fees and Expenses $ 50,000*
Rating Agency Fees $ 70,000*
Miscellaneous Expenses $ 3,493*
--------
TOTAL $390,000*
* Estimated
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
53
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 - Form of Underwriting Agreement with respect to the
Preferred Securities incorporated by reference to
Exhibit 1.3 filed with ConAgra's Registration
Statement on Form S-3 (33-52649).
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 incorporated by reference
54
to Exhibit 4.4 filed with ConAgra's Registration
Statement on Form S-3 (33-52649).
Exhibit 4.5 - Operating Agreement of ConAgra Capital
incorporated by reference to Exhibit 12 filed with
ConAgra's Current Report on Form 8-K dated June 8,
1994
Exhibit 4.6 - Written Action establishing the terms of the
Series B Adjustable Rate Cumulative Preferred
Securities incorporated by reference to Exhibit 1
filed with ConAgra's Current Report on Form 8-K
dated June 8, 1994.
Exhibit 4.7 - Written Action establishing the terms of the 9%
Series A Preferred Securities incorporated by
reference to Exhibit 2 filed with ConAgra's
Current Report on Form 8-K dated June 8, 1994.
Exhibit 4.8 - Form of Written Action Establishing the Preferred
Securities.
Exhibit 4.9 - Indenture, dated March 10, 1994, between ConAgra
and First Trust National Association, Trustee
incorporated by reference to Exhibit 3 filed with
ConAgra's Current Report on Form 8-K dated June 8,
1994.
Exhibit 4.10 - First Supplemental Indenture dated April 20, 1994
to the Indenture dated March 10, 1994 between
ConAgra, Inc. and First Trust National Association
as Trustee incorporated by reference to Exhibit 4
filed with ConAgra's Current Report on Form 8-K
dated June 8, 1994.
Exhibit 4.11 - Second Supplemental Indenture dated April 20, 1994
to the Indenture dated March 10, 1994 between
ConAgra, Inc. and First Trust National Association
as Trustee incorporated by reference to Exhibit 5
filed with ConAgra's Current Report on Form 8-K
dated June 8, 1994.
Exhibit 4.12 - Third Supplemental Indenture dated June 1, 1994 to
the Indenture dated March 10, 1994 between
ConAgra, Inc. and First Trust National Association
as Trustee incorporated by reference to Exhibit 6
filed with ConAgra's Current Report on Form 8-K
dated June 8, 1994.
Exhibit 4.13 - Fourth Supplemental Indenture dated June 1, 1994
to the Indenture dated March 10, 1994 between
ConAgra, Inc. and First Trust National Association
as Trustee incorporated by reference to Exhibit 7
55
filed with ConAgra's Current Report on Form 8-K
dated June 8, 1994.
Exhibit 4.14 Form of Supplemental Indenture
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 10.1 - Payment and Guarantee Agreement dated April 20,
1994 with respect to the Preferred Securities
incorporated by reference to Exhibit 13 filed with
ConAgra's Current Report on Form 8-K dated June 8,
1994.
Exhibit 10.2 - Agreement as to Expenses and Liabilities with
respect to the Preferred Securities incorporated
by reference to Exhibit 14 filed with ConAgra's
Current Report on Form 8-K dated June 8, 1994.
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 29, 1994 and Exhibit 12.1 of
ConAgra's Quarterly Report on Form 10-Q for the
quarter ended August 28, 1994.
Exhibit 23.1 - Consent of Deloitte & Touche LLP.
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).
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 incorporated
by reference to Exhibit 25.1 filed with ConAgra's
Registration Statement on Form S-3 (33-52649).
Exhibit 25.2 - Statement of Eligibility and Qualification of the
Trustee under the Trust Indenture Act incorporated
56
by reference to Exhibit 25.2 filed with ConAgra's
Registration Statement on Form S-3 (33-52649).
_______________
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
57
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.
58
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
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Omaha,
State of Nebraska, on the 20th day of December, 1994.
CONAGRA, INC.
By: /s/ Philip B. Fletcher
Philip B. Fletcher
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933
this Registration Statement has been signed below by the
following persons in the capacities with ConAgra, Inc. indicated
on the 20th day of December, 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/ Kenneth D. DiFonzo Vice President & Controller
Kenneth DiFonzo (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
Marjorie Scardino* 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
Registration Statement on behalf of each of the persons
indicated. A Power-of-Attorney authorizing Philip B. Fletcher to
59
sign this Registration Statement on behalf of each of the
indicated Directors of ConAgra, Inc. has been filed herewith as
Exhibit 24.
By: /s/ Philip B. Fletcher
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 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 20th day of
December, 1994.
ConAgra Capital L.C.
CP Nebraska, Inc.,
as Managing Member
By: /s/ Stephen L. Key
Stephen L. Key
President and Chief
Executive Officer
HW Nebraska, Inc.,
as Managing Member
By: /s/ Stephen L. Key
Stephen L. Key
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this 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 20th day of December, 1994.
60
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)
61
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 incorporated by
reference to Exhibit 1.3 filed with ConAgra's
Registration Statement on Form S-3 (33-52649).
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 Articles
Capital and Articles of Correction
incorporated by reference to Exhibit 4.4
filed with ConAgra's Registration Statement
on Form S-3 (33-52649).
Exhibit 4.5 - Operating Agreement of ConAgra Capital
incorporated by reference to Exhibit 12 filed
with ConAgra's Current Report on Form 8-K
dated June 8, 1994.
Exhibit 4.6 - Written Action establishing the terms of the
Series B Adjustable Rate Cumulative Preferred
Securities incorporated by reference to
Exhibit 1 filed with ConAgra's Current Report
on Form 8-K dated June 8, 1994.
Exhibit 4.7 - Written Action establishing the terms of the
9% Series A Preferred Securities incorporated
by reference to Exhibit 2 filed with ConAgra's
Current Report on Form 8-K dated June 8, 1994.
Exhibit 4.8 - Form of Written Action Establishing the
Preferred Securities.
Exhibit 4.9 - Indenture, dated March 10, 1994, between
ConAgra and First Trust National Association,
62
Trustee incorporated by reference to Exhibit 3
filed with ConAgra's Current Report on Form 8-K
dated June 8, 1994.
Exhibit 4.10 - First Supplemental Indenture dated April 20,
1994 to the Indenture dated March 10, 1994
between ConAgra, Inc. and First Trust National
Association in Trustee incorporated by reference
to Exhibit 4 filed with ConAgra's Current Report
on Form 8-K dated June 8, 1994.
Exhibit 4.11 - Second Supplemental Indenture dated April 20,
1994 to the Indenture dated March 10, 1994
between ConAgra, Inc. and First Trust National
Association in Trustee incorporated by reference
to Exhibit 5 filed with ConAgra's Current Report
on Form 8-K dated June 8, 1994.
Exhibit 4.12 - Third Supplemental Indenture dated June 1,
1994 to the Indenture dated March 10, 1994
between ConAgra, Inc. and First Trust National
Association in Trustee incorporated by reference
to Exhibit 6 filed with ConAgra's Current Report
on Form 8-K dated June 8, 1994.
Exhibit 4.13 - Fourth Supplemental Indenture dated June 1,
1994 to the Indenture dated March 10, 1994
between ConAgra, Inc. and First Trust National
Association in Trustee incorporated by reference
to Exhibit 7 filed with ConAgra's Current Report
on Form 8-K dated June 8, 1994.
Exhibit 4.14 - Form of Supplemental Indenture
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 10.1 - Payment and Guarantee Agreement with respect to
the Preferred Securities incorporated by reference
to Exhibit 13 filed with ConAgra's Form 8-K dated
June 8, 1994.
Exhibit 10.2 - Agreement as to Expenses and Liabilities
with respect to the Preferred Securities
incorporated by reference to Exhibit 14 filed
with ConAgra's Current Report on Form 8-K dated
June 8, 1994.
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
63
Fiscal Year ended May 29, 1994 and Exhibit 12.1
of ConAgra's Quarterly Report on Form 10-Q for
the quarter ended August 28, 1994.
Exhibit 23.1 - Consent of Deloitte & Touche LLP.
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).
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
incorporated by reference to Exhibit 25.1 filed
with ConAgra's Registration Statement on Form
S-3 (33-52649).
Exhibit 25.2 - Statement of Eligibility and Qualification of
the Trustee under the Trust Indenture Act
incorporated by reference to Exhibit 25.2 filed
with ConAgra's Registration Statement on Form
S-3 (33-52649).
____________________
64
EXHIBIT 4.8
FORM OF WRITTEN ACTION
Terms of the
Series __ Cumulative Preferred Securities
DATED AS OF , 199__
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 __ Preferred
Security, the stated liquidation preference of such Series
__ 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 __ Preferred Securities (as
defined below).
"Expense Agreement" means the Agreement as to
Expenses and Liabilities dated as of April 20, 1994 between
ConAgra and the Company.
"Guarantee" means the Payment and Guarantee
Agreement dated as of April 20, 1994, executed and delivered
by ConAgra for the benefit of the holders from time to time
of the Series __ Preferred Securities and other Preferred
Interests of the Company.
"Series __ Debentures" means the $
aggregate principal amount of ConAgra's Series __ Debentures
issued pursuant to the Subordinated Indenture.
"Subordinated Indenture" means the Indenture,
dated as of March 10, 1994, the First Supplemental Indenture
dated April 20, 1994, the Second Supplemental Indenture
dated April 20, 1994, the Third Supplemental Indenture dated
June 1, 1994, the Fourth Supplemental Indenture dated June
1, 1994, the Fifth Supplemental Indenture dated __________,
and the Sixth Supplemental Indenture dated __________,
between ConAgra and First Trust National Association, as
trustee.
"Underwriting Agreement" means the Underwriting
Agreement dated as of , 199__, among ConAgra, the
Company, ______________________________________________ as
representative(s) of the several underwriters named therein.
2. Designation. Series Preferred
Membership Interests with a liquidation preference of $25
per interest are hereby authorized and designated as "Series
__ Cumulative Preferred Securities" (hereinafter called the
"Series __ 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 __ Preferred Securities shall
have, with respect to such Series __ 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 __ Preferred Securities shall be cumulative.
Dividends shall accrue from , 199__ and shall be
payable monthly in arrears on the last day of each calendar
month of each year, commencing on ___________, 199__.
(b) The dividend rate for dividends payable on
the Series __ Preferred Securities from and including
_______________, 199__, to and including _________, 1994
will be % per annum. [In the case of fixed rate preferred
securities ___% per annum, or in the case of adjustable rate
the dividend rate for each monthly dividend period
2
thereafter will be the rate per annum equal to the
Applicable Rate (as defined below) in effect for the
Quarterly Period (as defined below) in which such dividend
period occurs.]
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 __ 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 __ Preferred
Securities shall be payable to the record holders thereof as
they appear on the register for the Series __ 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 __ 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 __
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 __ 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 __ Preferred
Securities as regards participation in profits of the
3
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 __ 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 __ 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 __
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 __ 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 __ 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 __ 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 __ 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 __ Preferred Securities.
4
(b) In the event of the liquidation of the
Company, holders of Series __ Preferred Securities shall be
entitled to receive for each Series __ Preferred Security a
liquidation preference of $25 plus accumulated and unpaid
dividends (whether or not declared) to the date of payment.
Prior to _____________-, 199__, payment of such liquidation
preference shall be made by distributing to each holder of
Series __ Preferred Securities one or more Series __
Debentures having an aggregate principal amount and accrued
and unpaid interest equal to such liquidation preference.
Such Series __ Debentures shall have the terms specified in
Section 7(b) for exchanges of Series __ Debentures for
Series __ Preferred Securities.
6. Redemption. (a) The Series __ 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 _____________, 199__,
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 __ Preferred Securities from
the New York Stock Exchange, the Company may only redeem the
Series __ Preferred Securities in whole.
(b) ConAgra shall have the right at any time to
cause ConAgra Capital, upon not less than 30 nor more than
60 days' notice, to redeem the Series __ 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 __
Debentures for federal income tax purposes even if the
Series __ Preferred Securities were exchanged for the Series
__ Debentures as described in Section 7(a) hereof.
(c) The Series __ 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 __ Debentures, subject
to the provisions in Section 4(f)(iii) hereof.
Notwithstanding the foregoing, the Series __ Preferred
Securities will not be subject to mandatory redemption when
the Series __ Debentures relating to the Series __ Preferred
Securities are due if ConAgra elects to exchange such Series
__ Debentures for new debentures or to repay such Debentures
and reborrow the proceeds from such repayment nor will such
Series __ Preferred Securities be subject to mandatory
redemption if such Series __ Debentures are optionally
prepaid and ConAgra elects to reborrow the proceeds from
such prepayment; provided that ConAgra may not so elect to
5
exchange any such Series __ Debentures or to reborrow the
proceeds from any repayment or prepayment of such Series __
Debentures, unless at the time of each such exchange or
reborrowing the Company owns all of such Series __
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 __ Debentures for the
immediately preceding 18 months, (d) the Company is not in
arrears on payments of dividends on the Series __ 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 __ 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 __ Preferred Securities.
(d) The Company may not redeem any Preferred
Interests of any series unless all accumulated arrearages of
6
unpaid dividends have been paid on all Series __ 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 __ 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 __ Preferred Securities so called for redemption will
cease, except the right of the holders of such Series __
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 __ 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 __
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 __ Preferred Securities
will continue to accrue, at the applicable rate from time to
time, 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 __ 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 __ Preferred Securities for Series __ Debentures
having an aggregate principal amount and accrued and unpaid
interest equal to the Applicable Price and an adjustable
interest rate thereon equal to the adjustable dividend rate
on the Series __ Preferred Securities if ConAgra and the
Company have been advised by independent nationally
recognized legal counsel that, as a result of any change
after , 199__ in U.S. law (including the enactment
7
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 __ 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 __
Debentures.
(b) Upon exchange of the Series __ Preferred
Securities for Series __ Debentures, (i) the Series __
Debentures shall no longer be subject to mandatory
prepayment upon the dissolution, winding up or liquidation
of the Company, (ii) the Series __ Debentures shall not be
subject to an election by ConAgra to exchange the Series __
Debentures for new debentures or to repay the Series __
Debentures and reborrow the proceeds from such repayment,
(iii) ConAgra shall use its best efforts to have the Series
__ Debentures listed on the same exchange on which the
Series __ Preferred Securities are listed, (iv) the
Subordinated Indenture or Series __ 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 __
Debenture affected thereby, (a) extend the stated maturity
of the principal of any Series __ 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 __ 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 (as defined in the
Series __ Debentures), 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 __ Debentures shall apply.
(c) After the date fixed for any such exchange,
(i) the Series __ Preferred Securities will no longer be
deemed to be outstanding, (ii) DTC or its nominee, as the
record holder of the Series __ Preferred Securities, will
exchange the global certificate or certificates representing
the Series __ Preferred Securities for a registered global
8
certificate or certificates representing the Series __
Debentures to be delivered upon such exchange and (iii) any
certificates representing Series __ Preferred Securities not
held by DTC or its nominee will be deemed to represent
Series __ Debentures having a principal amount equal to the
stated liquidation preference of such Series __ Preferred
Securities until such certificates are presented to the
Company or its agent for exchange.
8. No Sinking Fund. The Series __ 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
__ Preferred Securities and the holders of the Series __
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 __ 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 __ 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 __
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 __
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 __ Preferred
Securities. The Series __ Preferred Securities will be
issued only as fully-registered securities registered in the
name of Cede & Co. (DTC's partnership nominee).
9
(b) Redemption notices shall be sent to Cede &
Co. If less then all of the Series __ 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 __
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 __ 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 __ Preferred
Securities that ConAgra has executed 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 __ 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: James P. O'Donnell
Title: Vice President,
Finance and Treasurer
HW NEBRASKA, INC.
By:______________________
Name: James P. O'Donnell
Title: Vice President,
Finance
and Treasurer
10
Exhibit 4.14
Form of Supplemental Indenture
========================================
CONAGRA, INC.
AND
FIRST TRUST NATIONAL ASSOCIATION
Trustee
_____ Supplemental Indenture
Dated as of ___________, 199__
Providing for Issuance of
Series __ Debentures due _____
in connection with the issuance by
ConAgra Capital, L.C. of its
Series __ Cumulative Preferred Securities
========================================
SUPPLEMENTAL INDENTURE (the "Supplemental
Indenture"), dated as of ___________, 199__, 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 __ Cumulative Preferred
Securities (the "Series __ 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.
1
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 __ 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 April 20, 1994, between
the Issuer and Capital.
"Guarantee" means the Payment and Guarantee
Agreement dated as of April 20, 1994, executed and delivered
by the Issuer for the benefit of the holders from time to
time of the Series __ 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 __ Debentures for Series __ Preferred Securities
pursuant to Section 7 of the Written Action.
"Underwriting Agreement" means the underwriting
agreement dated as of _____________, 199__, among the
Issuer, Capital and __________________________________ as
representative(s) of the several underwriters named therein.
"Written Action" means the Written Action of the
Managing Members Pursuant to Section 3.02 of the Operating
2
Agreement dated __________________, 199__, establishing the
terms of the Series __ Preferred Securities.
ARTICLE TWO
ISSUANCE OF SERIES __ DEBENTURES
SECTION 2.1 Issuance of Series __ Debentures.
There shall be a series of Securities designated "Series __
Debentures due _____" (the "Series __ Debentures") and such
Series __ 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 __
Debentures which may be authenticated and delivered shall be
limited to $__________.
SECTION 2.3 Maturity of the Series __ Debentures.
Subject to the provisions of Sections 2.4 and 2.5, the
entire principal amount of the Series __ Debentures shall
become due and payable, together with any accrued and unpaid
interest thereon, including Additional Interest, if any, on
the earlier of (a) _____________ (subject to the Issuer's
right to exchange the Series __ 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 __
Debentures upon redemption of Series __ Preferred
Securities. Notwithstanding the provisions of Section 2.3,
if Capital redeems the Series __ Preferred Securities in
accordance with the terms thereof, the Series __ Debentures
pertaining to the Series __ Preferred Securities shall
become due and payable in a principal equal to the aggregate
stated liquidation preference of the Series __ 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 __ Debentures
relating to the Series __ Preferred Securities (together
with any accrued but unpaid interest, including Additional
3
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 _____________; 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 ____________ 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 __ Debentures for federal
income tax purposes even if the Series __ Preferred
Securities are exchanged for the Series __ Debentures
pursuant to a Preferred Security Exchange.
SECTION 2.6 Exchange of Series __ Debentures for
New Debentures. Notwithstanding the provisions of Section
2.3, prior to a Preferred Security Exchange, in lieu of
repaying the Series __ Debentures relating to the Series __
Preferred Securities when due, the Issuer may elect to
exchange such Series __ Debentures for new debentures with
an equal aggregate principal amount issued under the
Indenture with terms substantially identical to the Series
__ Debentures; provided that the Issuer may not so elect to
exchange any Series __ Debentures, unless at the time of
such exchange Capital owns all of the Series __ 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 __ Debentures for the immediately preceding 18
months, (d) Capital is not in arrears on payments of
distributions on the Series __ 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
4
to or greater than the amount of distributions required
under the Series __ 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 __ 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 __ Debentures. (a) The Series __ Debentures shall
be issuable as Registered Securities in denominations of $25
and any multiple thereof.
(b) The Series __ Debentures shall bear interest
at a rate equal to ____% per annum from ____________ to and
including _______________ and will bear interest for each
monthly interest period thereafter at a rate per annum [if
fixed rate, ___% thereafter] [or if adjustable rate at a
rate per annum equal to the applicable interest r].
To the extent allowed by law, the Issuer will also pay
interest on overdue installments of interest at the rate
used to compute such installments. 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 of each calendar
month (an "Interest Payment Date") commencing on __________
to the holder or holders of the Series __ 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
5
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 Common Interests, Capital
shall be required to pay, with respect to its income derived
from the interest payments on the Series __ Debentures, 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 __ 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 __ Debentures up to 18 months; provided that at the
end of such period the Issuer shall pay all installments of
interest then accrued and unpaid (together with interest
thereon at the rate used to compute such installments 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 __ 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 __ Debentures, the Issuer may further extend the
interest payment period for the Series __ Debentures;
provided that such extended interest payment period for the
Series __ Debentures together with all such further
extensions thereof, may not exceed 18 months; and provided
6
further that any such further extended interest period may
only be selected with respect to the Series __ 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 Series __ 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. 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, if any, to holders of the Common Interests 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 Common Interests, 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 provided Issuer shall not affect any set
off with respect to the Series __ Debentures until all
payments required under the Series __ Debentures have been
made.
SECTION 2.11 Certain Covenants. (a) So long as
the Preferred Interests 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 Preferred Interests 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
7
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 Preferred
Interests, 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 Common Interests and other series of
Preferred Interests then outstanding or (y) substitutes for
the Common Interests and any series of Preferred Interests
then outstanding other securities having substantially the
same terms as the Common Interests and any such 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 Common Interests and any such Preferred
Interests rank, respectively, 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 __ 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 Common Interests
and any such 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.
8
(c) So long as the Series __ Preferred
Interests 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 __
Debentures and (ii) immediately after giving effect to the
transaction no Event of Default shall have occurred and be
continuing.
(d) So long as the Series __ Preferred
Securities remain outstanding, the provisions of Sections
2.11(b) and (c) shall remain in full force and effect
notwithstanding satisfaction and discharge of the Indenture
pursuant to Section 10.1 thereof.
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 __
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 __ Debentures, and continuance of such default or
9
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 __
Debentures (including any Additional Interest and any
interest subject to an extension election) and any other
amounts payable under the Series __ 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 __ 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 __ 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 __ Debentures shall thereupon and
concurrently become due and payable without presentment,
10
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 __ 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 __
Preferred Securities when due (other than as a result of any
valid extension of the interest payment period by the Issuer
for the Series __ Debentures) or to pay any portion of the
redemption price of the Series __ Preferred Securities
called for redemption, then any Holder of Series __
Preferred Securities may, as set forth in the terms of the
Series __ Preferred Securities, enforce directly against the
Issuer Capital's right hereunder to receive payments of
principal and interest on the Series __ Debentures relating
to such Series __ Preferred Interests 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 __ 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 __ Debentures and the Issuer agrees to cooperate
with such trustee; provided that any 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 __ Preferred Interests shall have no rights to
enforce any obligations of the Issuer under the Indenture,
this Supplemental Indenture or the Series __ 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 __ 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 __ Debentures. The
11
Series __ Debentures will be issued as one or more global
certificates only as fully-registered securities registered
in the name of Cede & Co. (DTC's 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 than all of the Series __ 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 __
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 __ Debentures to be printed and
delivered as promptly as practicable.
SECTION 2.14 Listing on the New York Stock
Exchange. Following a Preferred Security Exchange, the
Issuer will use its best efforts to have the Series __
Debentures listed on the same exchange on which the Series
__ Preferred Securities are listed.
12
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 __ 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 __ 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 __ Debentures without the prior
written consent of the Issuer. Subject to the foregoing,
the Indenture, this Supplemental Indenture and the Series __
Debentures shall be binding upon and inure to the benefit of
the Issuer, Capital, the Holders from time to time of the
Series __ Debentures and their respective successors and
assigns. Except as provided in this Section 3.2 or
elsewhere in this Supplemental Indenture, none of the
13
Indenture, this Supplemental Indenture nor the Series __
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 __ 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 __ Preferred Securities shall remain outstanding,
(i) no amendment to the provisions of the Indenture, this
Supplemental Indenture or the Series __ Debentures shall be
made that adversely affects the holders of any Series __
Preferred Securities then outstanding, or terminate the
Indenture, this Supplemental Indenture or the Series __
Debentures, without in each case the prior consent of
holders of 66-2/3% in stated liquidation preference of all
Series __ Preferred Securities 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 __ 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 Series __ Preferred Securities pursuant to this Section
3.5 shall be in writing or shall be obtained at a meeting of
Series __ Preferred Securities holders 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 __ Debentures without
14
the approval of the same percentage of holders of Series __
Preferred Securities, obtained in the same manner, as would
be required for an amendment of the Indenture, this
Supplemental Indenture or the Series __ 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 the holders from time to
time of the Series __ 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 __ 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:
15
Name:
Title:
16
Exhibit A
[Form of Face of Series __ Debenture]
No.
ConAgra, Inc.
Series __ Debentures due
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 ____________, 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 equal to ____% per annum from
____________ to and including _______________ and interest
for each monthly interest period thereafter at a rate per
annum [if fixed rate, equal to ____% or if adjustable rate,
equal to the applicable interest rate.
To the extent allowed by law, the Issuer will also pay
interest on overdue installments of interest at the rate
used to compute such installments. 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
_______________ 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 Common Securities,
Capital shall be required to pay, with respect to its income
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derived from the interest payments on the Series __
Debentures, 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 __ 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 __ Debentures up to 18 months; provided that at the
end of such period the Issuer shall pay all installments of
interest then accrued and unpaid (together with interest
thereon at the rate used to compute such installments 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 __ 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 __ Debentures, the Issuer may further extend the
interest payment period for the Series __ Debentures;
provided that such extended interest payment period for the
Series __ 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 __ 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 Securities for such period, then the Issuer shall have
the right to again extend the interest payment period up to
18 months as herein described. 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, if any,
to the holders of the Common Interests or (ii) the date
Capital is required to give notice of the record or payment
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date of such related distribution, if any, to the holders of
the Common Interests to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the
Common Interests, 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 below.
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 supplemental indentures
thereto (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 __
Debentures due ____" (the "Series __ Debentures") of the
Issuer, limited in aggregate principal amount to
$__________.
In case an Event of Default with respect to the
Series __ 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
A-3
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 __ 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, Series __ Debentures may be exchanged for a like
A-4
aggregate principal amount of Series __ 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
__ Debentures (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 _____________; 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 ____________ 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 __ Debentures for federal
income tax purposes,
all as further provided in the Indenture.
The Series __ 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
A-5
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 Debenture 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.
A-6
Terms used herein which are defined in the
Indenture shall have the respective meanings assigned
thereto in the Indenture.
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 Signatory
A-7
EXHIBIT 5.1
McGRATH, NORTH, MULLIN & KRATZ, P.C.
SUITE 1400 ONE CENTRAL PARK PLAZA
222 SOUTH 15TH STREET
OMAHA, NEBRASKA 68102
(402) 341-3070
December 20, 1994
ConAgra, Inc.
One ConAgra Drive
Omaha, NE 68102-5001
Gentlemen:
ConAgra, Inc. (the "Company") and ConAgra Capital, L.C.
("ConAgra Capital") propose to jointly file with the Securities
and Exchange Commission under the Securities Act of 1933, as
amended, a registration statement on Form S-3 (the "Registration
Statement") covering up to $250,000,000 in securities including
(i) the proposed issuance from time to time of certain preferred
securities of ConAgra Capital (the "Preferred Securities") and
(ii) the proposed issuance from time to time of debt securities
of ConAgra (the "Debt Securities") which are to be issued in one
or more series from time to time under one or more indentures
(each an "Indenture"), the forms of which appear as an exhibit to
the Registration Statement. In connection with the issuance of
any Preferred Securities, the Company may enter into certain
obligations including debentures, guarantees, and expense payment
agreements (collectively, the "Backup Undertakings"). In
connection with the foregoing, we have examined corporate records
of the Company and such other documents and materials as we
considered relevant to the opinions set forth below, and have
made such investigation of matters of law and fact as we have
considered appropriate.
Based on the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, and has full corporate power to execute and deliver
such Indenture and the Debt Securities.
2. The execution and delivery of each Indenture by the
Company has been duly authorized, and, subject to compliance with
the procedures specified in each Indenture relating to the
authorization of the several series of Debt Securities, the
issuance of the Debt Securities in such series will be duly
ConAgra, Inc.
December 20, 1994
Page 2
authorized; and when each Indenture has been duly executed and
delivered by the Company and the Debt Securities of a series has
been so authorized and executed by the Company, authenticated by
the applicable trustee and delivered against payment therefor,
the Debt Securities of such series will constitute legally issued
and valid obligations of the Company.
3. When (a) the terms of the Backup Undertakings of the
Company relating to the Preferred Securities have been duly
established in accordance with applicable law, (b) the
instruments relating to the Backup Undertakings have been duly
authorized, executed and delivered, (c) the Preferred Securities
to which any of the Backup Undertakings relate have been duly
issued and sold and the purchase price therefor has been
received, the Backup Undertakings will constitute valid and
binding obligations of the Company, subject to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditor's rights and to
general equity principles.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the use of our name
in the section entitled "Legal Matters" of the Registration
Statement.
Very truly yours,
McGRATH, NORTH, MULLIN & KRATZ, P.C.
/s/ David L. Hefflinger
FOR THE FIRM
EXHIBIT 5.2
DICKINSON, MACKAMAN, TYLER & HAGEN, P.C.
ATTORNEYS AT LAW
1600 HUB TOWER 699 WALNUT STREET
DES MOINES, IOWA 50309-3986
TELEPHONE (515) 246-2600
TELECOPIER (515) 246-4550
December 16, 1994
ConAgra Capital, L.C.
ConAgra, Inc.
c/o ConAgra, Inc.
One Central Park Plaza
Omaha, Nebraska 68102
Gentlemen:
We have acted as special Iowa counsel to ConAgra Capital,
L.C. ("ConAgra Capital"). Capitalized terms used in this opinion
and not defined herein have the meanings ascribed thereto in the
Articles of Organization and Articles of Correction (together,
the "Articles") of ConAgra Capital and the Operating Agreement of
ConAgra Capital dated as of March 11, 1994 (the "Operating
Agreement") by and between CP Nebraska, Inc., a Nebraska
corporation, and HW Nebraska, Inc., a Nebraska corporation
(together, the "Managing Members").
In our capacity as special Iowa counsel, we have examined a
copy of the Operating Agreement. In addition, we have reviewed a
file-stamped copy of the Articles of Organization filed with the
Iowa Secretary of State on March 10, 1994, at 4:14 p.m. Central
Standard Time and a file-stamped copy of the Articles of
Correction filed with the Iowa Secretary of State on March 11,
1994, at 1:13 p.m. Central Standard Time. We have also examined
such other documents and records and made such investigations of
law as we have deemed necessary or advisable for purposes of this
opinion.
We have assumed the authenticity of all documents submitted
to us, the conformity to the original documents of all documents
submitted to us as copies, and the genuineness of all signatures.
Based upon and subject to the foregoing, we are of the
opinion that:
(1) ConAgra Capital has been duly formed and is validly
existing in good standing as a limited liability company under
the Iowa Limited Liability Company Act, Chapter 490A of the Code
of Iowa.
(2) Upon authorization, issuance and payment as
contemplated in and permitted by the Articles, the Operating
Agreement, and the written action of the Managing Members which
creates the series, the Series Preferred Membership Interests
will represent valid, fully-paid and nonassessable limited
liability company interests in ConAgra Capital, as to which the
Preferred Members, in their capacity as members of ConAgra
Capital will have no liability solely by reason of being
Preferred Members in excess of their share of ConAgra Capital's
assets and undistributed profits.
The opinions expressed herein are qualified in the following
respects:
(a) We express no opinion with respect to federal, state or
local taxes or tax statutes.
(b) The foregoing opinions are limited in all respects to
the laws of the State of Iowa.
(c) This opinion is given as of the date hereof. The
undersigned has no obligation to advise the addressees or any
third party of changes of law or fact that occur after the date
of this opinion, even though the change may affect the legal
analysis, or a legal conclusion.
(d) For purposes of the opinions expressed in paragraph 2
above, we have assumed that (i) the Operating Agreement remains
in effect without amendment; and (ii) any Series Preferred
Membership Interests issued by ConAgra Capital will be issued
only upon written action of the Managing Members which creates
the series.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the registration
statement to be filed by ConAgra Capital and ConAgra, Inc. We
hereby consent to the use of our firm name in the "legal matters"
and/or "validity of securities" section of such registration
statement.
Very truly yours,
Dickinson, Mackaman, Tyler & Hagen, P.C.
By: /s/ Arthur F. Owens
EXHIBIT 8
DAVIS POLK & WARDWELL
450 LEXINGTON AVENUE
NEW YORK, N.Y. 10017
212-450-4000
FAX: 212-450-4800
December 16, 1994
ConAgra, Inc.
ConAgra Capital, L.C.
One ConAgra Drive
Omaha, Nebraska 68102-5001
Re: Shelf Registration - U.S. $250,000,000
ConAgra Capital, L.C. ("ConAgra Capital")
Preferred Securities and ConAgra, Inc.
("ConAgra") Debt Securities
Dear Sirs:
We have acted as special tax counsel for ConAgra
Capital and ConAgra in connection with the registration of U.S.
$250,000,000 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 (the "Prospectus") that is part of the Registration
Statement on Form S-3 filed by ConAgra Capital and ConAgra with
the Securities and Exchange Commission on December 20, 1994.
Capitalized terms used herein but not defined have the same
meanings as provided in the Prospectus.
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. 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 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of ConAgra, Inc. on Form S-3 of the reports of Deloitte
& Touche dated July 7, 1994, appearing in and incorporated by
reference in the Annual Report on Form 10-K of ConAgra, Inc. for
the year ended May 29, 1994 and to the reference to Deloitte &
Touche LLP under the heading "Experts" in the Prospectus, which
is part of this Registration Statement.
DELOITTE & TOUCHE LLP
Omaha, Nebraska
December 13, 1994
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned Director of
ConAgra, Inc. constitutes and appoints P. B. Fletcher his true
and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead in any and all capacities, to execute a registration
statement on Form S-3 for the registration under the Securities
Act of 1933 of up to $250,000,000 maximum aggregate offering
price of securities of ConAgra, Inc., including but not limited
to debt and/or equity securities, and/or securities into which
the securities are convertible into or exchangeable for, and/or
guarantees or other agreements with respect to securities of
subsidiaries of Conagra, Inc., and any and all amendments and
post-effective amendments and supplements to the registration
statement and any and all instruments necessary or incidental in
connection therewith, and to file the same with the Securities
and Exchange Commission, granting unto such attorney-in-fact and
agent, full power and authority to do and perform each and every
act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and seal this 1st day of December, 1994.
/s/ C. M. Harper
C. M. Harper
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned Director of
ConAgra, Inc. constitutes and appoints P. B. Fletcher his true
and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead in any and all capacities, to execute a registration
statement on Form S-3 for the registration under the Securities
Act of 1933 of up to $250,000,000 maximum aggregate offering
price of securities of ConAgra, Inc., including but not limited
to debt and/or equity securities, and/or securities into which
the securities are convertible into or exchangeable for, and/or
guarantees or other agreements with respect to securities of
subsidiaries of Conagra, Inc., and any and all amendments and
post-effective amendments and supplements to the registration
statement and any and all instruments necessary or incidental in
connection therewith, and to file the same with the Securities
and Exchange Commission, granting unto such attorney-in-fact and
agent, full power and authority to do and perform each and every
act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and seal this 1st day of December, 1994.
/s/ Robert A. Krane
Robert A. Krane
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned Director of
ConAgra, Inc. constitutes and appoints P. B. Fletcher his true
and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead in any and all capacities, to execute a registration
statement on Form S-3 for the registration under the Securities
Act of 1933 of up to $250,000,000 maximum aggregate offering
price of securities of ConAgra, Inc., including but not limited
to debt and/or equity securities, and/or securities into which
the securities are convertible into or exchangeable for, and/or
guarantees or other agreements with respect to securities of
subsidiaries of Conagra, Inc., and any and all amendments and
post-effective amendments and supplements to the registration
statement and any and all instruments necessary or incidental in
connection therewith, and to file the same with the Securities
and Exchange Commission, granting unto such attorney-in-fact and
agent, full power and authority to do and perform each and every
act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and seal this 1st day of December, 1994.
/s/ Gerald Rauenhorst
Gerald Rauenhorst
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned Director of
ConAgra, Inc. constitutes and appoints P. B. Fletcher his true
and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead in any and all capacities, to execute a registration
statement on Form S-3 for the registration under the Securities
Act of 1933 of up to $250,000,000 maximum aggregate offering
price of securities of ConAgra, Inc., including but not limited
to debt and/or equity securities, and/or securities into which
the securities are convertible into or exchangeable for, and/or
guarantees or other agreements with respect to securities of
subsidiaries of Conagra, Inc., and any and all amendments and
post-effective amendments and supplements to the registration
statement and any and all instruments necessary or incidental in
connection therewith, and to file the same with the Securities
and Exchange Commission, granting unto such attorney-in-fact and
agent, full power and authority to do and perform each and every
act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and seal this 1st day of December, 1994.
/s/ Carl E. Reichardt
Carl E. Reichardt
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned Director of
ConAgra, Inc. constitutes and appoints P. B. Fletcher his true
and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead in any and all capacities, to execute a registration
statement on Form S-3 for the registration under the Securities
Act of 1933 of up to $250,000,000 maximum aggregate offering
price of securities of ConAgra, Inc., including but not limited
to debt and/or equity securities, and/or securities into which
the securities are convertible into or exchangeable for, and/or
guarantees or other agreements with respect to securities of
subsidiaries of Conagra, Inc., and any and all amendments and
post-effective amendments and supplements to the registration
statement and any and all instruments necessary or incidental in
connection therewith, and to file the same with the Securities
and Exchange Commission, granting unto such attorney-in-fact and
agent, full power and authority to do and perform each and every
act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and seal this 1st day of December, 1994.
/s/ Ronald W. Roskens
Ronald W. Roskens
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned Director of
ConAgra, Inc. constitutes and appoints P. B. Fletcher his true
and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead in any and all capacities, to execute a registration
statement on Form S-3 for the registration under the Securities
Act of 1933 of up to $250,000,000 maximum aggregate offering
price of securities of ConAgra, Inc., including but not limited
to debt and/or equity securities, and/or securities into which
the securities are convertible into or exchangeable for, and/or
guarantees or other agreements with respect to securities of
subsidiaries of Conagra, Inc., and any and all amendments and
post-effective amendments and supplements to the registration
statement and any and all instruments necessary or incidental in
connection therewith, and to file the same with the Securities
and Exchange Commission, granting unto such attorney-in-fact and
agent, full power and authority to do and perform each and every
act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and seal this 1st day of December, 1994.
/s/ Walter Scott, Jr.
Walter Scott, Jr.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned Director of
ConAgra, Inc. constitutes and appoints P. B. Fletcher his true
and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead in any and all capacities, to execute a registration
statement on Form S-3 for the registration under the Securities
Act of 1933 of up to $250,000,000 maximum aggregate offering
price of securities of ConAgra, Inc., including but not limited
to debt and/or equity securities, and/or securities into which
the securities are convertible into or exchangeable for, and/or
guarantees or other agreements with respect to securities of
subsidiaries of Conagra, Inc., and any and all amendments and
post-effective amendments and supplements to the registration
statement and any and all instruments necessary or incidental in
connection therewith, and to file the same with the Securities
and Exchange Commission, granting unto such attorney-in-fact and
agent, full power and authority to do and perform each and every
act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and seal this 1st day of December, 1994.
/s/ William G. Stocks
William G. Stocks
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned Director of
ConAgra, Inc. constitutes and appoints P. B. Fletcher his true
and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead in any and all capacities, to execute a registration
statement on Form S-3 for the registration under the Securities
Act of 1933 of up to $250,000,000 maximum aggregate offering
price of securities of ConAgra, Inc., including but not limited
to debt and/or equity securities, and/or securities into which
the securities are convertible into or exchangeable for, and/or
guarantees or other agreements with respect to securities of
subsidiaries of Conagra, Inc., and any and all amendments and
post-effective amendments and supplements to the registration
statement and any and all instruments necessary or incidental in
connection therewith, and to file the same with the Securities
and Exchange Commission, granting unto such attorney-in-fact and
agent, full power and authority to do and perform each and every
act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and seal this 1st day of December, 1994.
/s/ Frederick B. Wells
Frederick B. Wells
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned Director of
ConAgra, Inc. constitutes and appoints P. B. Fletcher his true
and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead in any and all capacities, to execute a registration
statement on Form S-3 for the registration under the Securities
Act of 1933 of up to $250,000,000 maximum aggregate offering
price of securities of ConAgra, Inc., including but not limited
to debt and/or equity securities, and/or securities into which
the securities are convertible into or exchangeable for, and/or
guarantees or other agreements with respect to securities of
subsidiaries of Conagra, Inc., and any and all amendments and
post-effective amendments and supplements to the registration
statement and any and all instruments necessary or incidental in
connection therewith, and to file the same with the Securities
and Exchange Commission, granting unto such attorney-in-fact and
agent, full power and authority to do and perform each and every
act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and seal this 1st day of December, 1994.
/s/ Thomas R. Williams
Thomas R. Williams
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned Director of
ConAgra, Inc. constitutes and appoints P. B. Fletcher his true
and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead in any and all capacities, to execute a registration
statement on Form S-3 for the registration under the Securities
Act of 1933 of up to $250,000,000 maximum aggregate offering
price of securities of ConAgra, Inc., including but not limited
to debt and/or equity securities, and/or securities into which
the securities are convertible into or exchangeable for, and/or
guarantees or other agreements with respect to securities of
subsidiaries of Conagra, Inc., and any and all amendments and
post-effective amendments and supplements to the registration
statement and any and all instruments necessary or incidental in
connection therewith, and to file the same with the Securities
and Exchange Commission, granting unto such attorney-in-fact and
agent, full power and authority to do and perform each and every
act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and seal this 9th day of December, 1994.
/s/ Clayton K. Yeutter
Clayton K. Yeutter
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned Director of
ConAgra, Inc. constitutes and appoints P. B. Fletcher his true
and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead in any and all capacities, to execute a registration
statement on Form S-3 for the registration under the Securities
Act of 1933 of up to $250,000,000 maximum aggregate offering
price of securities of ConAgra, Inc., including but not limited
to debt and/or equity securities, and/or securities into which
the securities are convertible into or exchangeable for, and/or
guarantees or other agreements with respect to securities of
subsidiaries of Conagra, Inc., and any and all amendments and
post-effective amendments and supplements to the registration
statement and any and all instruments necessary or incidental in
connection therewith, and to file the same with the Securities
and Exchange Commission, granting unto such attorney-in-fact and
agent, full power and authority to do and perform each and every
act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set her
hand and seal this 1st day of December, 1994.
/s/ Marjorie M. Scardino
Marjorie M. Scardino
