SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
February 11, 1995
Date of Report (Date of earliest event reported)
ConAgra, Inc.
(Exact name of registrant as specified in its charter)
Delaware 1-7275 47-0248710
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
One ConAgra Drive, Omaha, Nebraska 68102-5001
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(402) 595-4000
Item 5. Other Events.
On February 11, 1995, the Board of Directors of
ConAgra, Inc. authorized the company to purchase up to 25,000,000
shares of its outstanding common stock from time to time in the
open market over several years. ConAgra, Inc. also announced
that it currently intends to call for redemption during calendar
year 1995 some or all of the company's Class E $25 Cumulative
Convertible Preferred Stock (NYSE: CAG pfE) subject to market
considerations and board approval. ConAgra's press release
issued on Monday, February 13, 1995 is attached as an exhibit to
this Form 8-K Current Report.
On February 2, 1995, ConAgra Capital, L.C. completed
the sale of $250 million of 9.35% Series C Cumulative Preferred
Securities (NYSE: CAG pfC). ConAgra Capital, L.C. is controlled
by two indirectly wholly-owned finance subsidiaries of ConAgra,
Inc. ConAgra Capital, L.C. loaned the proceeds of the sale to
ConAgra, Inc. The 9.35% Series C Cumulative Preferred Securities
are guaranteed on a limited basis by ConAgra, Inc. and
exchangeable in certain limited circumstances for Series C
Debentures of ConAgra, Inc.
Item 7. Exhibits.
1. Written Action of ConAgra Capital, L.C. dated January
26, 1995 establishing the terms of the 9.35% Series C
Cumulative Preferred Securities.
2. Fifth Supplemental Indenture dated January 26, 1995 to
the Indenture dated March 10, 1994 between ConAgra,
Inc. and First Trust National Association as Trustee.
3. Sixth Supplemental Indenture dated January 26, 1995 to
the Indenture dated March 10, 1994 between ConAgra,
Inc. and First Trust National Association as Trustee.
4. ConAgra, Inc.'s 9.35% $250,000,000 Series C Debenture
dated February 2, 1995 due 2044.
5. ConAgra, Inc.'s 9.35% $66,500,000 Series CC Debenture
dated February 2, 1995 due 2044.
6. ConAgra, Inc.'s Press Release dated February 13, 1995.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
CONAGRA, INC.
February 14, 1995 By: /s/ Stephen L. Key
Stephen L. Key, Executive
Vice President and Chief
Financial Officer
EXHIBIT INDEX
Exhibit
No. Description Page
1 Written Action dated January 26, 1995 of
ConAgra Capital, L.C. establishing the
terms of the 9.35% Series C Cumulative
Preferred Securities.
2 Fifth Supplemental Indenture dated
January 26, 1995 to the Indenture dated
March 10, 1994 between ConAgra, Inc.
and First Trust National Association as
Trustee.
3 Sixth Supplemental Indenture dated
January 26, 1995 to the Indenture dated
March 10, 1994 between ConAgra, Inc.
and First Trust National Association as
Trustee.
4 ConAgra Inc.'s 9.35% $250,000,000 Series C
Debenture dated February 2, 1995 due 2044.
5 ConAgra, Inc.'s 9.35% $66,500,000 Series CC
Debenture dated February 2, 1995 due 2044.
6 ConAgra Inc.'s Press Release dated
February 13, 1995.
Exhibit 1
Terms of the
Series C Cumulative Preferred Securities
DATED AS OF JANUARY 26, 1995
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 C Preferred
Security, the stated liquidation preference of such Series C
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 C 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 C Preferred Securities and other Preferred
Interests of the Company.
"Series C Debentures" means the $250,000,000
aggregate principal amount of ConAgra's Series C 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 January 26,
1995, and the Sixth Supplemental Indenture dated January 26,
1995, between ConAgra and First Trust National Association,
as trustee.
"Underwriting Agreement" means the Underwriting
Agreement dated as of January 26, 1995, among ConAgra, the
Company, and Smith Barney Inc. as representative of the
several underwriters named therein.
2. Designation. 10,000,000 Series Preferred
Membership Interests with a liquidation preference of $25
per interest are hereby authorized and designated as "Series
C Cumulative Preferred Securities" (herein called the
"Series C 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 C Preferred Securities shall
have, with respect to such Series C 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 C Preferred Securities shall be cumulative.
Dividends shall accrue from February 2, 1995 and shall be
payable monthly in arrears on the last day of each calendar
month of each year, commencing on February 28, 1995.
(b) The dividend payable on the Series C
Preferred Securities shall be fixed at a rate of 9.35% per
annum of the liquidation preference of the Series C
Preferred Securities. The amount of dividends payable for
any full monthly dividend period shall be computed on the
basis of twelve 30-day months and a 360-day year and, for
any period shorter than a full monthly dividend period,
shall be computed on the basis of the actual number of days
elapsed in such period. The Company shall only pay
dividends to the extent it has funds legally available to
make such payments.
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(c) Dividends on the Series C 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 C Preferred
Securities shall be payable to the record holders thereof as
they appear on the register for the Series C 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 C 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 C 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 C 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 C Preferred
Securities as regards participation in profits of the
Company ("Dividend Parity Securities"), unless the
amount of any dividends declared on any Dividend Parity
Securities is paid on Dividend Parity Securities and
the Series C 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 C Preferred Securities
bears to (B) the aggregate amount paid as
dividends on Dividend Parity Securities the same
ratio as
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(y) (A) the aggregate of all accumulated
arrears of unpaid dividends on the Series C
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 C 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 C 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 C 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 C 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 C Preferred Securities.
(b) In the event of the liquidation of the
Company, holders of Series C Preferred Securities shall be
entitled to receive for each Series C Preferred Security a
liquidation preference of $25 plus accumulated and unpaid
dividends (whether or not declared) to the date of payment.
Prior to February 29, 2000, payment of such liquidation
preference shall be made by distributing to each holder of
Series C Preferred Securities one or more Series C
Debentures having an aggregate principal amount and accrued
and unpaid interest equal to such liquidation preference.
Such Series C Debentures shall have the terms specified in
Section 7(b) for exchanges of Series C Debentures for Series
C Preferred Securities.
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6. Redemption. (a) The Series C 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 February 29, 2000, 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 C Preferred Securities from the
New York Stock Exchange, the Company may only redeem the
Series C 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 C 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 C Debentures for
federal income tax purposes even if the Series C Preferred
Securities were exchanged for the Series C Debentures as
described in Section 7(a) hereof.
(c) The Series C 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 C Debentures, subject to
the provisions in Section 4(f)(iii) hereof. Notwithstanding
the foregoing, the Series C Preferred Securities will not be
subject to mandatory redemption when the Series C Debentures
relating to the Series C Preferred Securities are due if
ConAgra elects to exchange such Series C Debentures for new
debentures or to repay such Debentures and reborrow the
proceeds from such repayment nor will such Series C
Preferred Securities be subject to mandatory redemption if
such Series C Debentures are optionally prepaid and ConAgra
elects to reborrow the proceeds from such prepayment;
provided that ConAgra may not so elect to exchange any such
Series C Debentures or to reborrow the proceeds from any
repayment or prepayment of such Series C Debentures, unless
at the time of each such exchange or reborrowing the Company
owns all of such Series C 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
5
series has occurred and is continuing, (c) ConAgra has made
timely payments on the repaid Series C Debentures for the
immediately preceding 18 months, (d) the Company is not in
arrears on payments of dividends on the Series C 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 C 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 C Preferred Securities.
(d) The Company may not redeem any Preferred
Interests of any series unless all accumulated arrearages of
unpaid dividends have been paid on all Series C 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 C 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 C Preferred Securities so called for redemption will
cease, except the right of the holders of such Series C
6
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 C 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 C 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 C 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 C 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 C Preferred Securities for Series C Debentures
having an aggregate principal amount and accrued and unpaid
interest equal to the Applicable Price and an interest rate
thereon equal to the dividend rate on the Series C Preferred
Securities if ConAgra and the Company have been advised by
independent nationally recognized legal counsel that, as a
result of any change after January 26, 1995 in U.S. law
(including the enactment or imminent enactment of any
legislation, the publication of any judicial decisions or
regulatory rulings or a change in the official position or
in the interpretation of law or regulations), there exists
more than an insubstantial risk that (i) ConAgra will be
precluded from deducting the interest on the Series C
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 C Debentures.
(b) Upon exchange of the Series C Preferred
Securities for Series C Debentures, (i) the Series C
Debentures shall no longer be subject to mandatory
prepayment upon the dissolution, winding up or liquidation
of the Company, (ii) the Series C Debentures shall not be
subject to an election by ConAgra to exchange the Series C
7
Debentures for new debentures or to repay the Series C
Debentures and reborrow the proceeds from such repayment,
(iii) ConAgra shall use its best efforts to have the Series
C Debentures listed on the same exchange on which the Series
C Preferred Securities are listed, (iv) the Subordinated
Indenture or Series C 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 C Debenture affected
thereby, (a) extend the stated maturity of the principal of
any Series C 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 C 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 C 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 C Debentures shall
apply.
(c) After the date fixed for any such exchange,
(i) the Series C Preferred Securities will no longer be
deemed to be outstanding, (ii) DTC or its nominee, as the
record holder of the Series C Preferred Securities, will
exchange the global certificate or certificates representing
the Series C Preferred Securities for a registered global
certificate or certificates representing the Series C
Debentures to be delivered upon such exchange and (iii) any
certificates representing Series C Preferred Securities not
held by DTC or its nominee will be deemed to represent
Series C Debentures having a principal amount equal to the
stated liquidation preference of such Series C Preferred
Securities until such certificates are presented to the
Company or its agent for exchange.
8. No Sinking Fund. The Series C 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
C Preferred Securities and the holders of the Series C
8
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 C 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 C 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 C 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 C
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 C Preferred Securities.
The Series C Preferred Securities will be issued only as
fully-registered securities registered in the name of Cede &
Co. (DTC's partnership nominee).
(b) Redemption notices shall be sent to Cede &
Co. If less then all of the Series C 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 C 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 C Preferred Securities to be
printed and delivered as promptly as practicable.
9
12. Guarantee of Liabilities. It shall be a condition
precedent to the issuance of the Series C 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 C 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: /s/ James P.
O'Donnell
Name: James P. O'Donnell
Title: Vice President,
Finance and
Treasurer
HW NEBRASKA, INC.
By: /s/ James P.
O'Donnell
Name: James P. O'Donnell
Title: Vice President,
Finance
and Treasurer
10
Exhibit 2
========================================
CONAGRA, INC.
AND
FIRST TRUST NATIONAL ASSOCIATION
Trustee
Fifth Supplemental Indenture
Dated as of January 26, 1995
Providing for Issuance of 9.35%
Series C Debentures due 2044
in connection with the issuance by
ConAgra Capital, L.C. of its
Series C Cumulative Preferred Securities
========================================
FIFTH SUPPLEMENTAL INDENTURE (the "Supplemental
Indenture"), dated as of January 26, 1995, 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 C Cumulative Preferred Securities
(the "Series C 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 C 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 C 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 C Debentures for Series C Preferred Securities
pursuant to Section 7 of the Written Action.
"Underwriting Agreement" means the underwriting
agreement dated as of January 26, 1995, among the Issuer,
Capital and Smith Barney Inc. as representative 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 January 26, 1995, establishing the terms of
the Series C Preferred Securities.
ARTICLE TWO
ISSUANCE OF SERIES C DEBENTURES
SECTION 2.1 Issuance of Series C Debentures.
There shall be a series of Securities designated "Series C
Debentures due 2044" (the "Series C Debentures") and such
Series C 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 C
Debentures which may be authenticated and delivered shall be
limited to $250,000,000.
SECTION 2.3 Maturity of the Series C Debentures.
Subject to the provisions of Sections 2.4 and 2.5, the
entire principal amount of the Series C Debentures shall
become due and payable, together with any accrued and unpaid
interest thereon, including Additional Interest, if any, on
the earlier of (a) February 29, 2044 (subject to the
Issuer's right to exchange the Series C 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 C
Debentures upon redemption of Series C Preferred Securities.
Notwithstanding the provisions of Section 2.3, if Capital
redeems the Series C Preferred Securities in accordance with
the terms thereof, the Series C Debentures pertaining to the
Series C Preferred Securities shall become due and payable
in a principal equal to the aggregate stated liquidation
preference of the Series C 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 C Debentures
relating to the Series C 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 February 29, 2000; 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 January 26, 1995 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 C Debentures for federal
income tax purposes even if the Series C Preferred
Securities are exchanged for the Series C Debentures
pursuant to a Preferred Security Exchange.
SECTION 2.6 Exchange of Series C Debentures for
New Debentures. Notwithstanding the provisions of Section
2.3, prior to a Preferred Security Exchange, in lieu of
repaying the Series C Debentures relating to the Series C
Preferred Securities when due, the Issuer may elect to
exchange such Series C Debentures for new debentures with an
equal aggregate principal amount issued under the Indenture
with terms substantially identical to the Series C
Debentures; provided that the Issuer may not so elect to
exchange any Series C Debentures, unless at the time of such
exchange Capital owns all of the Series C 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 C Debentures for the immediately preceding 18 months,
(d) Capital is not in arrears on payments of distributions
on the Series C Preferred Securities, (e) there is then no
present reason to believe the Issuer will be unable to make
timely payment of principal and interest on such new
debentures, (f) such new debentures are being issued on
terms, and under circumstances, that are consistent with
those which a lender would then require for a loan to an
unrelated party, (g) such new debentures are being issued at
a rate sufficient to provide payments equal to or greater
4
than the amount of distributions required under the Series C
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 C 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
Series C Preferred Securities.
SECTION 2.7 Denomination and Interest on the
Series C Debentures. (a) The Series C Debentures shall be
issuable as Registered Securities in denominations of $25
and any multiple thereof.
(b) The Series C Debentures shall bear interest
at a rate equal to 9.35% per annum from February 2, 1995 or
from the most recent Interest Payment Date (as defined
below) to which interest has been paid or provided for on
the Series C Debentures. To the extent allowed by law, the
Issuer will also pay interest on overdue installments of
interest at such rate. The amount of interest payable for
any full monthly interest period shall be computed on the
basis of twelve 30-day months and a 360-day year and, for
any period shorter than a full monthly interest period,
shall be computed on the basis of the actual number of days
elapsed in such period. Such interest shall be payable
monthly on the last day of each calendar month (an "Interest
Payment Date") commencing on February 28, 1995 to the holder
or holders of the Series C 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
5
preceding Business Day (and the Record Date for such
Interest Payment Date shall be one Business Day prior to the
date on which payment is to be made), in each case with the
same force and effect as if made on such date.
SECTION 2.8 Additional Interest. If at any time
following the issuance of the Series C Preferred Securities
and prior to a Preferred Security Exchange, Capital shall be
required to pay, with respect to its income derived from the
interest payments on the Series C Debentures relating to the
Series C Preferred Securities, any amounts, for or on
account of any taxes, duties, assessments or governmental
charges of whatever nature imposed by the United States or
any other taxing authority, then, in any such case, the
Issuer will pay as interest such additional amounts
("Additional Interest") as may be necessary in order that
the net amounts received and retained by Capital after the
payment of such taxes, duties, assessments or governmental
charges shall result in Capital's having such funds as it
would have had in the absence of the payment of such taxes,
duties, assessments or governmental charges.
SECTION 2.9 Extension of Interest Period.
Notwithstanding the provisions of Section 2.7 hereof, the
Issuer shall have the right at any time or times during the
term of the Series C 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 C 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 specified for the Series C Debentures to
the extent permitted by applicable law); provided further
that, during any such extended interest period, neither the
Issuer nor any majority owned subsidiary of the Issuer shall
pay or declare any dividends on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any
of its capital stock (other than payments to redeem common
share purchase rights under the Issuer's shareholder rights
plan dated July 10, 1986, as amended, or to declare a
dividend of similar share purchase rights in the future);
and provided furtherthat any such extended interest period
may only be selected with respect to the Series C 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 C Debentures, the Issuer may further extend the
interest payment period for the Series C Debentures;
provided that such extended interest payment period for the
Series C 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 C Debentures if
6
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 C Debentures for such period, then the Issuer
shall have the right to again extend the interest payment
period up to 18 months as herein described. Prior to any
Preferred Security Exchange, the Issuer shall give Capital
notice of its selection of any extended interest payment
period one Business Day prior to the earlier of (i) the date
Capital declares the related distribution, 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 Series C Preferred Securities, but in any event not
less than two Business Days prior to such record date; the
Issuer shall cause Capital to give such notice of the
Issuer's selection of any extended interest payment period
to all holders of Such Series C Preferred Securities. After
any Preferred Security Exchange, the Issuer shall give the
Holders of the Series C Debentures notice of its selection
of any extended interest payment prior to the date it is
required to give notice of the record of payment date of
such interest payment to the New York Stock Exchange or
other applicable self-regulatory organization, but in any
event not less than two Business Days prior to such Record
Date.
SECTION 2.10 Set-off. Notwithstanding anything
to the contrary herein, prior to any Preferred Security
Exchange the Issuer shall have the right to set off any
payment it is otherwise required to make hereunder with and
to the extent the Issuer has theretofore made, or is
concurrently on the date of such payment making, a payment
under the Guarantee.
SECTION 2.11 Certain Covenants. (a) So long as
the Series C Preferred Securities remain outstanding,
neither the Issuer nor any majority-owned subsidiary of the
Issuer shall declare or pay any dividend on, or redeem,
purchase, acquire or make a liquidation payment with respect
to, any of the Issuer's capital stock or make any guarantee
payments with respect to the foregoing (other than payments
under the Guarantee, payments to redeem common share
purchase rights under the Issuer's shareholder rights plan
dated July 10, 1986, as amended, or the declaration of a
dividend of similar share purchase rights in the future) if
at such time the Issuer is in default with respect to its
payment obligations under the Guarantee or the Expense
Agreement or there shall have occurred an Event of Default
or any event that, with the giving of notice or the lapse of
7
time or both, would constitute an Event of Default under the
Securities.
(b) So long as the Series C Preferred Securities
remain outstanding, the Issuer shall (i) not cause or permit
any Common Interests to be transferred, (ii) maintain direct
or indirect ownership of all outstanding securities in
Capital other than the Preferred Interests of any series and
any other securities permitted to be issued by Capital that
would not cause Capital to become an "investment company"
under the Investment Company Act of 1940, as amended, (iii)
cause at least 21% of the total value of Capital and at
least 21% of all interests in the capital, income, gain,
loss, deduction and credit of Capital to be represented by
Common Interests, (iv) not voluntarily dissolve, windup or
liquidate Capital or either of the Managing Members, (v)
cause HW Nebraska, Inc. and CP Nebraska, Inc. to remain the
Managing Members of Capital and timely perform all of their
respective duties as Managing Members of Capital, and (vi)
use reasonable efforts to cause Capital to remain a limited
liability company and otherwise continue to be treated as a
partnership for U.S. federal income tax purposes; provided
that the Issuer may permit Capital, solely for the purpose
of changing its domicile or avoiding tax consequences
adverse to the Issuer, Capital or holders of Series C
Preferred Securities, to consolidate or merge with or into a
limited liability company or a limited partnership formed
under the laws of any state of the United States of America;
provided that (1) such successor limited liability company
or limited partnership (x) expressly assumes all of the
obligations of Capital under the Series C Preferred
Securities and other series of Preferred Interests then
outstanding or (y) substitutes for the Series C Preferred
Securities and any series of Preferred Interests then
outstanding other securities having substantially the same
terms as the Series C Preferred Securities 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 Series C Preferred Securities 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 C Debentures and other series of
debentures issued under the Indenture then outstanding,
(3) such merger or consolidation does not cause any series
of Preferred Interests then outstanding to be delisted by
any national securities exchange or other organization on
which such series is then listed, (4) the holders of Series
C Preferred Securities 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
8
any "nationally recognized statistical rating organization,"
as that term is defined by the Securities and Exchange
Commission for purposes of Rule 436(g)(2) under the
Securities Act of 1933, as amended, and (6) following such
merger or consolidation, neither the Issuer nor such
successor limited liability company or limited partnership
will be an "investment company" for purposes of the
Investment Company Act of 1940, as amended.
(c) So long as the Series C Preferred
Securities remain outstanding, the Issuer shall not
consolidate with or merge into any other Person or sell its
property and assets as, or substantially as, an entirety to
any Person and shall not permit any Person to merge into or
consolidate with the Issuer unless (i) in case the Issuer
shall consolidate with or merge into another Person or sell
its properties and assets as, or substantially as, an
entirety to any Person, the Person formed by such
consolidation or into which the Issuer is merged or the
Person which purchases the properties and assets of the
Issuer as, or substantially, as an entirety shall be a
corporation, partnership or trust, shall be organized and
validly existing under the laws of the United States of
America, any State or the District of Columbia, and shall
expressly assume the Issuer's obligations under the
Indenture, this Supplemental Indenture and the Series C
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 C 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);
9
(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 C 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 C
Debentures, and continuance of such default or breach for a
period of 90 days after there has 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 C Debentures
(including any Additional Interest and any interest subject
to an extension election) and any other amounts payable
under the Series C 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 C Debentures to the contrary
notwithstanding and (ii) to enforce its other rights
hereunder and thereunder. Capital may not accelerate the
10
principal amount of any Series C 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 C Debentures shall thereupon and
concurrently become due and payable without presentment,
demand, protest or other notice of any kind, all of which
are hereby expressly waived, anything in the Indenture, this
Supplemental Indenture or the Series C 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 C
Preferred Securities when due (other than as a result of any
valid extension of the interest payment period by the Issuer
for the Series C Debentures) or to pay any portion of the
redemption price of the Series C Preferred Securities called
for redemption, then any Holder of Series C Preferred
Securities may, as set forth in the terms of the Series C
Preferred Securities, enforce directly against the Issuer
Capital's right hereunder to receive payments of principal
and interest on the Series C Debentures relating to such
Series C 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 C 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 C 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 C Preferred Interests shall have no rights to
enforce any obligations of the Issuer under the Indenture,
this Supplemental Indenture or the Series C 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 C Debentures and this Section 2.12
shall be of no further force or effect.
11
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 C Debentures. The
Series C 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 C 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 C
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 C Debentures to be printed and
delivered as promptly as practicable.
12
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 C
Debentures listed on the same exchange on which the Series C
Preferred Securities are listed.
ARTICLE THREE
MISCELLANEOUS
SECTION 3.1 Notices. All notices hereunder shall
be deemed given by a party hereto if in writing and
delivered personally or by telegram or facsimile
transmission or by registered or certified mail (return
receipt requested) to the other party at the following
address for such party (or at such other address as shall be
specified by like notice):
If to Capital, to:
ConAgra Capital, L.C.
c/o ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Vice President-Finance
If to the Issuer, to:
ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Vice President-Finance
Any notice given by mail or telegram or facsimile
transmission shall be effective when received.
SECTION 3.2 Assignment; Binding Effect. The
Issuer shall have the right at all times to assign any of
its rights or obligations under the Indenture, this
Supplemental Indenture and the Series C 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 C 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 C Debentures without the prior
written consent of the Issuer. Subject to the foregoing,
13
the Indenture, this Supplemental Indenture and the Series C
Debentures shall be binding upon and inure to the benefit of
the Issuer, Capital, the Holders from time to time of the
Series C Debentures and their respective successors and
assigns. Except as provided in this Section 3.2 or
elsewhere in this Supplemental Indenture, none of the
Indenture, this Supplemental Indenture nor the Series C
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 C 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 C Preferred Securities shall remain outstanding,
(i) no amendment to the provisions of the Indenture, this
Supplemental Indenture or the Series C Debentures shall be
made that adversely affects the holders of any Series C
Preferred Securities then outstanding, or terminate the
Indenture, this Supplemental Indenture or the Series C
Debentures, without in each case the prior consent of
holders of 66-2/3% in stated liquidation preference of all
Series C 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 C 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 C Preferred
Securities pursuant to this Section 3.5 shall be in writing
or shall be obtained at a meeting of Series C Preferred
14
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 C Debentures without
the approval of the same percentage of holders of Series C
Preferred Securities, obtained in the same manner, as would
be required for an amendment of the Indenture, this
Supplemental Indenture or the Series C 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 C 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 C 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: /s/ J.P. O'Donnell
Name: J. P. O'Donnell
Title: Vice President,
Finance
and Treasurer
[SEAL]
Attest: /s/ Sue E. Badberg
Name: Sue E. Badberg
Title: Assistant Secretary
FIRST TRUST NATIONAL
15
ASSOCIATION, as Trustee
By: /s/ David H. Bluhm
Name: David H. Bluhm
Title: Vice President
[SEAL]
Attest: /s/ K. Barrett
Name: Kathe Barrett
Title: Assoc. Admin.
16
Exhibit A
[Form of Face of Series C Debenture]
No.
ConAgra, Inc.
Series C Debentures due 2044
ConAgra, Inc., a Delaware corporation (the
"Issuer"), for value received, hereby promises to pay to
ConAgra Capital, L.C. or registered assigns, at the office
or agency of the Issuer in The City of New York, the
principal sum of $250,000,000 Dollars on February 29, 2044,
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 9.35% per annum accruing from February 2, 1995 or
from the most recent Interest Payment Date (as defined
below) to which interest has been paid or provided for on
the Series C Debentures. To the extent allowed by law, the
Issuer will also pay interest on overdue installments of
interest at such rate. The amount of interest payable for
any full monthly interest period shall be computed on the
basis of twelve 30-day months and a 360-day year and, for
any period shorter than a full monthly interest period,
shall be computed on the basis of the actual number of days
elapsed in such period. Such interest shall be payable
monthly on the last day (an "Interest Payment Date") of each
calendar month, commencing on February 28, 1995 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
derived from the interest payments on the Series C
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
A-1
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 C 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 C 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 specified for the Series C Debentures to
the extent permitted by applicable law); provided further
that, during any such extended interest period, neither the
Issuer nor any majority owned subsidiary of the Issuer shall
pay or declare any dividends on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any
of its capital stock (other than payments to redeem common
share purchase rights under the Issuer's shareholder rights
plan dated July 10, 1986, as amended, or to declare a
dividend of similar share purchase rights in the future);
and provided further that any such extended interest period
may only be selected with respect to the Series C 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 C Debentures, the Issuer may further extend the
interest payment period for the Series C Debentures;
provided that such extended interest payment period for the
Series C 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 C 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. Prior to any Preferred
Security Exchange, the Issuer shall give Capital notice of
its selection of any extended interest payment period one
Business Day prior to the earlier of (i) the date Capital
declares the related distribution, if any, to the holders of
the Series C Preferred Securities or (ii) the date Capital
is required to give notice of the record or payment date of
such related distribution, if any, to the holders of the
Series C Preferred Securities to the New York Stock Exchange
or other applicable self-regulatory organization or to
A-2
holders of the Series C Preferred Securities, but in any
event not less than two Business Days prior to such Record
Date; the Issuer shall cause Capital to give such notice of
the Issuer's selection of any extended interest payment
period to all holders of such Series C Preferred Securities.
After any Preferred Security Exchange, the Issuer shall give
the Holders of the Series C Debentures notice of its
selection of any extended interest payment prior to the date
it is required to give notice of the record or payment date
of such interest payment to the New York Stock Exchange or
other applicable self-regulatory organization, but in any
event not less than two Business Days prior to such Record
Date.
Reference is made to the further provisions of
this Debenture set forth on the reverse hereof. Such
further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Debenture shall not be valid or become
obligatory for any purpose until the certificate of
authentication hereon shall have been signed by the Trustee
under the Indenture referred to 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 C
Debentures due 2044" (the "Series C Debentures") of the
Issuer, limited in aggregate principal amount to
$250,000,000.
In case an Event of Default with respect to the
Series C Debentures, as defined in the Indenture, shall have
occurred and be continuing, the principal hereof may be
A-3
declared, and upon such declaration shall become, due and
payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the
Issuer and the Trustee, with the consent of the Holders of
not less than 66-2/3% in aggregate principal amount of the
Securities at the time Outstanding (as defined in the
Indenture) of all series to be affected (voting as one
class), evidenced as in the Indenture provided, to execute
supplemental indentures adding any provisions to or changing
in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in
any manner the rights of the Holders of the Securities of
each such series; provided, however, that no such
supplemental indenture shall (i) extend the final maturity
of any Security, or reduce the principal amount thereof or
any premium thereon, or reduce the rate or extend the time
of payment of any interest thereon, or impair or affect the
rights of any Holder to institute suit for the payment
thereof, without the consent of the Holder of each Security
so affected, or (ii) reduce the aforesaid percentage of
Securities, the Holders of which are required to consent to
any such supplemental indenture, without the consent of the
Holder of each Security affected. It is also provided in
the Indenture that, with respect to certain defaults or
Events of Default regarding the Securities of any series,
prior to any declaration accelerating the maturity of such
Securities, the Holders of a majority in aggregate principal
amount Outstanding of the Securities of such series (or, in
the case of certain defaults or Events of Default, all or
certain series of the Securities) may on behalf of the
Holders of all the Securities of such series (or all or
certain series of the Securities, as the case may be) waive
any such past default or Event of Default and its
consequences. The preceding sentence shall not, however,
apply to a continuing default in the payment of the
principal of or premium, if any, or interest on any of the
Securities. Any such consent or waiver by the Holder of
this Debenture (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon
all future Holders and owners of this Debenture and any
Debenture which may be issued in exchange or substitution
herefor, irrespective of whether or not any notation thereof
is made upon this Debenture or such other Debentures.
No reference herein to the Indenture and no
provision of this Debenture or of the Indenture shall alter
or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of and any premium
and interest on this Debenture in the manner, at the
respective times, at the rate and in the coin or currency
herein prescribed.
A-4
The Series C 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 C Debentures may be exchanged for a like
aggregate principal amount of Series C 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
C 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 February 29, 2000; 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 January 26, 1995 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 C Debentures for federal
income tax purposes, even if the Series C Preferred
Securities are exchanged for the Series C Debentures
pursuant to a Preferred Security Exchange,
all as further provided in the Indenture.
The Series C 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
A-5
obligation, whether existing as of the date hereof or
subsequently incurred by the Issuer.
Upon due presentment for registration of transfer
of this Debenture at the office or agency of the Issuer in
the Borough of Manhattan, The City of New York, a new
Debenture or Debentures of authorized denominations for an
equal aggregate principal amount will be issued to the
transferee in exchange therefor, subject to the limitations
provided in the Indenture, without charge except for any tax
or other governmental charge imposed in connection
therewith.
The Issuer, the Trustee and any authorized agent
of the Issuer or the Trustee may deem and treat the
registered Holder hereof as the absolute owner of this
Debenture (whether or not this 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: February 2, 1995
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 3
========================================
CONAGRA, INC.
AND
FIRST TRUST NATIONAL ASSOCIATION
Trustee
Sixth Supplemental Indenture
Dated as of January 26, 1995
Providing for Issuance of 9.35%
Series CC Debentures due 2044
in connection with the issuance by
ConAgra Capital, L.C. of its
Common Interests
========================================
SIXTH SUPPLEMENTAL INDENTURE (the "Supplemental
Indenture"), dated as of January 26, 1995, 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 Common Interests (the "Common
Interests");
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.
"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 Common Interests 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 C Debentures for Series C Preferred Securities
pursuant to Section 7 of the Written Action.
"Series CC Debentures" shall mean the Series CC
Debentures as defined in the Sixth Supplemental Indenture
dated January 26, 1995.
"Series C Preferred Securities" shall mean Series
C Cumulative Preferred Securities as defined in the Written
Action.
"Underwriting Agreement" means the underwriting
agreement dated as of January 26, 1995, among the Issuer,
Capital and Smith Barney Inc. as representative of the
several underwriters named therein.
2
"Written Action" means the Written Action of the
Managing Members Pursuant to Section 3.02 of the Operating
Agreement dated January 26, 1995, establishing the terms of
the Preferred Interests relating to the Series C Debentures.
ARTICLE TWO
ISSUANCE OF Series CC DEBENTURES
SECTION 2.1 Issuance of Series CC Debentures.
There shall be a series of Securities designated "Series CC
Debentures due 2044" (the "Series CC Debentures") and such
Series CC 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 CC
Debentures which may be authenticated and delivered shall be
limited to $66,500,000.
SECTION 2.3 Maturity of the Series CC Debentures.
Subject to the provisions of Sections 2.4 and 2.5, the
entire principal amount of the Series CC Debentures shall
become due and payable, together with any accrued and unpaid
interest thereon, including Additional Interest, if any, on
the earlier of (a) February 29, 2044 (subject to the
Issuer's right to exchange the Series CC 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 CC
Debentures upon redemption of Common Interests.
Notwithstanding the provisions of Section 2.3, if Capital
redeems the Preferred Interests in accordance with the terms
thereof, the Series CC Debentures shall become due and
payable in a principal amount 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 CC Debentures
(together with any accrued but unpaid interest, including
Additional Interest, if any, on the portion being prepaid),
without premium or penalty,
3
(i) in whole or in part, as the case may be, at
any time on or after February 29, 2000; 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 January 26, 1995 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 CC Debentures for federal
income tax purposes.
SECTION 2.6 Exchange of Series CC Debentures for
New Debentures. Notwithstanding the provisions of Section
2.3, prior to a Preferred Security Exchange, in lieu of
repaying the Series CC Debentures when due, the Issuer may
elect to exchange such Series CC Debentures for new
debentures with an equal aggregate principal amount issued
under the Indenture with terms substantially identical to
the Series CC Debentures; provided that the Issuer may not
so elect to exchange any Series CC Debentures, unless at the
time of such exchange Capital owns all of the Series CC
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 CC Debentures for the
immediately preceding 18 months, (d) Capital is not in
arrears on payments of distributions on the Series C
Preferred Securities, (e) there is then no present reason to
believe the Issuer will be unable to make timely payment of
principal and interest on such new debentures, (f) such new
debentures are being issued on terms, and under
circumstances, that are consistent with those which a lender
would then require for a loan to an unrelated party, (g)
such new debentures are being issued at a rate sufficient to
provide payments equal to or greater than the amount of
distributions required under the Common Interests, (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
4
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 Preferred Interests, 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 Series C
Preferred Securities.
SECTION 2.7 Denomination and Interest on the
Series CC Debentures. (a) The Series CC Debentures shall
be issuable as Registered Securities in denominations of $25
and any multiple thereof.
(b) The Series CC Debentures shall bear interest
at a rate equal to 9.35% per annum from February 2, 1995 or
from the most recent Interest Payment Date (as defined
below) to which interest has been paid or provided for on
the Series CC Debentures. To the extent allowed by law, the
Issuer will also pay interest on overdue installments of
interest at such rate. The amount of interest payable for
any full monthly interest period shall be computed on the
basis of twelve 30-day months and a 360-day year and, for
any period shorter than a full monthly interest period,
shall be computed on the basis of the actual number of days
elapsed in such period. Such interest shall be payable
monthly on the last day of each calendar month (an "Interest
Payment Date") commencing on February 28, 1995 to the holder
or holders of the Series CC 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.
5
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 CC 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 CC 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 CC 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 specified for the Series CC Debentures
to the extent permitted by applicable law); provided further
that, during any such extended interest period, neither the
Issuer nor any majority owned subsidiary of the Issuer shall
pay or declare any dividends on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any
of its capital stock (other than payments to redeem common
share purchase rights under the Issuer's shareholder rights
plan dated July 10, 1986, as amended, or to declare a
dividend of similar share purchase rights in the future);
and provided further that any such extended interest period
may only be selected with respect to the Series CC
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 CC Debentures, the Issuer may further
extend the interest payment period for the Series CC
Debentures; provided that such extended interest payment
period for the Series CC 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 CC
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 CC Debentures for
such period, then the Issuer shall have the right to again
extend the interest payment period up to 18 months as herein
6
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 CC Debentures until all
payments required under the Series C 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
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)
7
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 CC 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.
(c) So long as the Common 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,
8
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 CC 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 C 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 CC
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 CC Debentures, and continuance of such default or
breach for a period of 90 days after there has 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;
9
(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 CC
Debentures (including any Additional Interest and any
interest subject to an extension election) and any other
amounts payable under the Series CC 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 CC 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 CC 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 CC Debentures shall thereupon and
concurrently become due and payable without presentment,
demand, protest or other notice of any kind, all of which
are hereby expressly waived, anything in the Indenture, this
Supplemental Indenture or the Series CC 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 Common
Interests when due (other than as a result of any valid
extension of the interest payment period by the Issuer for
10
the Series CC Debentures) or to pay any portion of the
redemption price of the Common Interests called for
redemption, then any Holder of Common Interests may, as set
forth in the terms of the Common Interests, enforce directly
against the Issuer Capital's right hereunder to receive
payments of principal and interest on the Series CC
Debentures relating to such Common Interests but only in an
amount sufficient to enable Capital to pay such
distributions or redemption price.
Except as provided in this Section 2.12, Holders
of Common Interests shall have no rights to enforce any
obligations of the Issuer under the Indenture, this
Supplemental Indenture or the Series CC 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 CC Debentures and this Section
2.12 shall be of no further force or effect.
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.
11
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 CC 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 Common Interests for federal income tax purposes.
Except as otherwise provided in this Supplemental Indenture,
Capital may not assign any of its rights under the Series CC
Debentures without the prior written consent of the Issuer.
Subject to the foregoing, the Indenture, this Supplemental
Indenture and the Series CC Debentures shall be binding upon
and inure to the benefit of the Issuer, Capital, the Holders
from time to time of the Series CC Debentures and their
respective successors and assigns. Except as provided in
this Section 3.2 or elsewhere in this Supplemental
Indenture, none of the Indenture, this Supplemental
Indenture nor the Series CC 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 CC 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 Common Interests shall remain outstanding, (i) no
amendment to the provisions of the Indenture, this
Supplemental Indenture or the Series CC Debentures shall be
made that adversely affects the holders of any Common
Interest then outstanding, or terminate the Indenture, this
Supplemental Indenture or the Series CC Debentures, without
in each case the prior consent of holders of 66-2/3% of all
Common Interests then outstanding, unless and until all
Securities and all accrued and unpaid interest thereon
(including Additional Interest, if any) shall have been paid
in full and (ii) without the prior consent of holders of
100% of all Common Interests then outstanding, no amendment
12
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 Common Interest pursuant
to this Section 3.5 shall be in writing or shall be obtained
at a meeting of Common Interest holders.
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 CC Debentures without
the approval of the same percentage of holders of Common
Interests, obtained in the same manner, as would be required
for an amendment of the Indenture, this Supplemental
Indenture or the Series CC 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 Common Interests 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 CC 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: /s/ J.P.
O'Donnell
Name: J. P. O'Donnell
13
Title: Vice
President,
Finance
[SEAL] and Treasurer
Attest: /s/ Sue E. Badberg
Name: Sue E. Badberg
Title: Assistant Secretary
14
FIRST TRUST NATIONAL
ASSOCIATION, as Trustee
By: /s/ David H.
Bluhm
Name: David H. Bluhm
Title: Vice President
[SEAL]
Attest: /s/ K. Barrett
Name: Kathe Barrett
Title: Assoc. Admin.
15
Exhibit A
[Form of Face of Series CC Debenture]
No.
ConAgra, Inc.
Series CC Debentures due 2044
ConAgra, Inc., a Delaware corporation (the
"Issuer"), for value received, hereby promises to pay to
ConAgra Capital, L.C. or registered assigns, at the office
or agency of the Issuer in The City of New York, the
principal sum of $66,500,000 Dollars on February 29, 2044,
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 9.35% per annum accruing from February 2, 1995 or
from the most recent Interest Payment Date (as defined
below) to which interest has been paid or provided for on
the Series CC Debentures. To the extent allowed by law, the
Issuer will also pay interest on overdue installments of
interest at such rate. The amount of interest payable for
any full monthly interest period shall be computed on the
basis of twelve 30-day months and a 360-day year and, for
any period shorter than a full monthly interest period,
shall be computed on the basis of the actual number of days
elapsed in such period. Such interest shall be payable
monthly on the last day (an "Interest Payment Date") of each
calendar month, commencing on February 28, 1995 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
derived from the interest payments on the Series CC
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
A-1
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 CC 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 CC 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 specified for the Series CC Debentures
to the extent permitted by applicable law); provided further
that, during any such extended interest period, neither the
Issuer nor any majority owned subsidiary of the Issuer shall
pay or declare any dividends on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any
of its capital stock (other than payments to redeem common
share purchase rights under the Issuer's shareholder rights
plan dated July 10, 1986, as amended, or to declare a
dividend of similar share purchase rights in the future);
and provided further that any such extended interest period
may only be selected with respect to the Series CC
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 CC Debentures, the Issuer may further
extend the interest payment period for the Series CC
Debentures; provided that such extended interest payment
period for the Series CC 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 CC
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 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
A-2
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 CC
Debentures due 2044" (the "Series CC Debentures") of the
Issuer, limited in aggregate principal amount to
$66,500,000.
In case an Event of Default with respect to the
Series CC Debentures, as defined in the Indenture, shall
have occurred and be continuing, the principal hereof may be
declared, and upon such declaration shall become, due and
payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the
Issuer and the Trustee, with the consent of the Holders of
not less than 66-2/3% in aggregate principal amount of the
Securities at the time Outstanding (as defined in the
Indenture) of all series to be affected (voting as one
class), evidenced as in the Indenture provided, to execute
supplemental indentures adding any provisions to or changing
A-3
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 CC 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 CC Debentures may be exchanged for a like
aggregate principal amount of Series CC Debentures of other
authorized denominations.
A-4
Upon not less than 30 nor more than 60 days' prior
notice, the Issuer shall have the right to prepay the Series
CC 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 February 29, 2000; 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 January 26, 1995 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 CC Debentures for federal
income tax purposes,
all as further provided in the Indenture.
The Series CC Debentures are, to the extent and in
the manner provided in the Indenture, expressly subordinate
and junior in right of payment of all Senior Indebtedness as
provided in the Indenture, and each holder of this
Debenture, by his acceptance hereof, agrees to and shall be
bound by such provisions of the Indenture and authorizes and
directs the Trustee in his behalf to take such action as
appropriate to effectuate such subordination and appoints
the Trustee his attorney-in-fact for any and all such
purposes. The Indenture defines Senior Indebtedness as
obligations (other than non-recourse obligations and the
Securities) of, or guaranteed or assumed by, the Issuer for
borrowed money (including both senior and subordinated
indebtedness for borrowed money (other than the Securities))
or evidenced by bonds, debentures, notes or other similar
instruments, and amendments, renewals, extensions,
modifications and refundings of any such indebtedness or
obligation, whether existing as of the date hereof or
subsequently incurred by the Issuer.
Upon due presentment for registration of transfer
of this Debenture at the office or agency of the Issuer in
the Borough of Manhattan, The City of New York, a new
Debenture or Debentures of authorized denominations for an
equal aggregate principal amount will be issued to the
transferee in exchange therefor, subject to the limitations
provided in the Indenture, without charge except for any tax
or other governmental charge imposed in connection
therewith.
A-5
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.
Terms used herein which are defined in the
Indenture shall have the respective meanings assigned
thereto in the Indenture.
Dated: February 2, 1995
ConAgra, Inc.
By
A-6
[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
4
No. 1 $250,000,000
ConAgra, Inc.
9.35% Series C Debentures due 2044
ConAgra, Inc., a Delaware corporation (the
"Issuer"), for value received, hereby promises to pay to
ConAgra Capital, L.C. or registered assigns, at the office
or agency of the Issuer in The City of New York, the
principal sum of $250,000,000 Dollars on February 29, 2044,
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 9.35% per annum accruing from February 2, 1995 or
from the most recent Interest Payment Date (as defined
below) to which interest has been paid or provided for on
the Series C Debentures. To the extent allowed by law, the
Issuer will also pay interest on overdue installments of
interest at such rate. The amount of interest payable for
any full monthly interest period shall be computed on the
basis of twelve 30-day months and a 360-day year and, for
any period shorter than a full monthly interest period,
shall be computed on the basis of the actual number of days
elapsed in such period. Such interest shall be payable
monthly on the last day (an "Interest Payment Date") of each
calendar month, commencing on February 28, 1995 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
derived from the interest payments on the Series C
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
1
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 C 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 C 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 specified for the Series C Debentures to
the extent permitted by applicable law); provided further
________________
that, during any such extended interest period, neither the
Issuer nor any majority owned subsidiary of the Issuer shall
pay or declare any dividends on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any
of its capital stock (other than payments to redeem common
share purchase rights under the Issuer's shareholder rights
plan dated July 10, 1986, as amended, or to declare a
dividend of similar share purchase rights in the future);
and provided further that any such extended interest period
________________
may only be selected with respect to the Series C 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 C Debentures, the Issuer may further extend the
interest payment period for the Series C Debentures;
provided that such extended interest payment period for the
Series C 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 C 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. Prior to any Preferred
Security Exchange, the Issuer shall give Capital notice of
its selection of any extended interest payment period one
Business Day prior to the earlier of (i) the date Capital
declares the related distribution, if any, to the holders of
the Series C Preferred Securities or (ii) the date Capital
is required to give notice of the record or payment date of
such related distribution, if any, to the holders of the
Series C Preferred Securities to the New York Stock Exchange
or other applicable self-regulatory organization or to
holders of the Series C Preferred Securities, but in any
event not less than two Business Days prior to such Record
Date; the Issuer shall cause Capital to give such notice of
the Issuer's selection of any extended interest payment
period to all holders of such Series C Preferred Securities.
After any Preferred Security Exchange, the Issuer shall give
the Holders of the Series C Debentures notice of its
2
2
selection of any extended interest payment prior to the date
it is required to give notice of the record or payment date
of such interest payment to the New York Stock Exchange or
other applicable self-regulatory organization, but in any
event not less than two Business Days prior to such Record
Date.
Reference is made to the further provisions of
this Debenture set forth on the reverse hereof. Such
further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Debenture shall not be valid or become
obligatory for any purpose until the certificate of
authentication hereon shall have been signed by the Trustee
under the Indenture referred to 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 C
Debentures due 2044" (the "Series C Debentures") of the
Issuer, limited in aggregate principal amount to
$250,000,000.
In case an Event of Default with respect to the
Series C Debentures, as defined in the Indenture, shall have
occurred and be continuing, the principal hereof may be
declared, and upon such declaration shall become, due and
payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the
Issuer and the Trustee, with the consent of the Holders of
not less than 66-2/3% in aggregate principal amount of the
Securities at the time Outstanding (as defined in the
Indenture) of all series to be affected (voting as one
3
3
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 C 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 C Debentures may be exchanged for a like
aggregate principal amount of Series C Debentures of other
authorized denominations.
4
4
Upon not less than 30 nor more than 60 days' prior
notice, the Issuer shall have the right to prepay the Series
C 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 February 29, 2000; 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 January 26, 1995 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 C Debentures for federal
income tax purposes, even if the Series C Preferred
Securities are exchanged for the Series C Debentures
pursuant to a Preferred Security Exchange,
all as further provided in the Indenture.
The Series C Debentures are, to the extent and in
the manner provided in the Indenture, expressly subordinate
and junior in right of payment of all Senior Indebtedness as
provided in the Indenture, and each holder of this
Debenture, by his acceptance hereof, agrees to and shall be
bound by such provisions of the Indenture and authorizes and
directs the Trustee in his behalf to take such action as
appropriate to effectuate such subordination and appoints
the Trustee his attorney-in-fact for any and all such
purposes. The Indenture defines Senior Indebtedness as
obligations (other than non-recourse obligations and the
Securities) of, or guaranteed or assumed by, the Issuer for
borrowed money (including both senior and subordinated
indebtedness for borrowed money (other than the Securities))
or evidenced by bonds, debentures, notes or other similar
instruments, and amendments, renewals, extensions,
modifications and refundings of any such indebtedness or
obligation, whether existing as of the date hereof or
subsequently incurred by the Issuer.
Upon due presentment for registration of transfer
of this Debenture at the office or agency of the Issuer in
the Borough of Manhattan, The City of New York, a new
Debenture or Debentures of authorized denominations for an
equal aggregate principal amount will be issued to the
transferee in exchange therefor, subject to the limitations
provided in the Indenture, without charge except for any tax
or other governmental charge imposed in connection
therewith.
5
5
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.
Terms used herein which are defined in the
Indenture shall have the respective meanings assigned
thereto in the Indenture.
Dated: February 2, 1995
ConAgra, Inc.
By /s/ J.P. O'Donnell
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 /s/ K. Barrett
Authorized Signatory
6
6
Exhibit 5
No. 1 $66,500,000
ConAgra, Inc.
9.35% Series CC Debentures due 2044
ConAgra, Inc., a Delaware corporation (the
"Issuer"), for value received, hereby promises to pay to
ConAgra Capital, L.C. or registered assigns, at the office
or agency of the Issuer in The City of New York, the
principal sum of $66,500,000 Dollars on February 29, 2044,
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 9.35% per annum accruing from February 2, 1995 or
from the most recent Interest Payment Date (as defined
below) to which interest has been paid or provided for on
the Series CC Debentures. To the extent allowed by law, the
Issuer will also pay interest on overdue installments of
interest at such rate. The amount of interest payable for
any full monthly interest period shall be computed on the
basis of twelve 30-day months and a 360-day year and, for
any period shorter than a full monthly interest period,
shall be computed on the basis of the actual number of days
elapsed in such period. Such interest shall be payable
monthly on the last day (an "Interest Payment Date") of each
calendar month, commencing on February 28, 1995 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
derived from the interest payments on the Series CC
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,
1
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 CC 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 CC 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 specified for the Series CC Debentures
to the extent permitted by applicable law); provided further
________________
that, during any such extended interest period, neither the
Issuer nor any majority owned subsidiary of the Issuer shall
pay or declare any dividends on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any
of its capital stock (other than payments to redeem common
share purchase rights under the Issuer's shareholder rights
plan dated July 10, 1986, as amended, or to declare a
dividend of similar share purchase rights in the future);
and provided further that any such extended interest period
________________
may only be selected with respect to the Series CC
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 CC Debentures, the Issuer may further
extend the interest payment period for the Series CC
Debentures; provided that such extended interest payment
period for the Series CC 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 CC
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 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.
2
2
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 CC
Debentures due 2044" (the "Series CC Debentures") of the
Issuer, limited in aggregate principal amount to
$66,500,000.
In case an Event of Default with respect to the
Series CC Debentures, as defined in the Indenture, shall
have occurred and be continuing, the principal hereof may be
declared, and upon such declaration shall become, due and
payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the
Issuer and the Trustee, with the consent of the Holders of
not less than 66-2/3% in aggregate principal amount of the
Securities at the time Outstanding (as defined in the
Indenture) of all series to be affected (voting as one
class), evidenced as in the Indenture provided, to execute
supplemental indentures adding any provisions to or changing
in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in
any manner the rights of the Holders of the Securities of
3
3
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 CC 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 CC Debentures may be exchanged for a like
aggregate principal amount of Series CC 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
CC Debentures (together with any accrued but unpaid
4
4
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 February 29, 2000; 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 January 26, 1995 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 CC Debentures for federal
income tax purposes,
all as further provided in the Indenture.
The Series CC Debentures are, to the extent and in
the manner provided in the Indenture, expressly subordinate
and junior in right of payment of all Senior Indebtedness as
provided in the Indenture, and each holder of this
Debenture, by his acceptance hereof, agrees to and shall be
bound by such provisions of the Indenture and authorizes and
directs the Trustee in his behalf to take such action as
appropriate to effectuate such subordination and appoints
the Trustee his attorney-in-fact for any and all such
purposes. The Indenture defines Senior Indebtedness as
obligations (other than non-recourse obligations and the
Securities) of, or guaranteed or assumed by, the Issuer for
borrowed money (including both senior and subordinated
indebtedness for borrowed money (other than the Securities))
or evidenced by bonds, debentures, notes or other similar
instruments, and amendments, renewals, extensions,
modifications and refundings of any such indebtedness or
obligation, whether existing as of the date hereof or
subsequently incurred by the Issuer.
Upon due presentment for registration of transfer
of this Debenture at the office or agency of the Issuer in
the Borough of Manhattan, The City of New York, a new
Debenture or Debentures of authorized denominations for an
equal aggregate principal amount will be issued to the
transferee in exchange therefor, subject to the limitations
provided in the Indenture, without charge except for any tax
or other governmental charge imposed in connection
therewith.
The Issuer, the Trustee and any authorized agent
of the Issuer or the Trustee may deem and treat the
5
5
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.
Terms used herein which are defined in the
Indenture shall have the respective meanings assigned
thereto in the Indenture.
Dated: February 2, 1995
ConAgra, Inc.
By /s/ J.P. O'Donnell
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 /s/ K. Barrett
Authorized Signatory
6
6
Exhibit 6
FOR IMMEDIATE
RELEASE
CONAGRA BOARD AUTHORIZES BUYBACK OF UP TO 25 MILLION SHARES;
CONAGRA MAY CALL CLASS E PREFERRED STOCK DURING 1995
Omaha, Neb., February 13, 1995 -- ConAgra, Inc. (NYSE: CAG)
today announced that its board of directors has authorized the
company to purchase up to 25 million shares of its outstanding
common stock. ConAgra currently has about 248 million shares of
common stock outstanding, including 21 million shares held in
trust in the company's Employee Equity Fund and not available in
the market.
ConAgra also said it currently intends to call for
redemption during calendar year 1995 some or all of the company's
Class E $25 cumulative convertible preferred stock (NYSE: CAG
PrE), subject to market considerations and board approval.
Under the buyback program announced today, common shares
will be purchased from time to time in the open market over
several years. Purchased shares may be used to replace shares
issued for acquisitions and to meet obligations for employee
incentive and benefit plans and conversion of preferred stock to
common stock, including potential conversion of ConAgra's Class E
preferred stock. ConAgra expects to purchase during 1995 at
least enough common shares to cover any conversion of the Class E
preferred stock.
The Class E preferred stock is initially subject to call on
August 14, 1995 at $25.48 per share and is subject to mandatory
redemption on August 14, 2002 at $25.00 per share. The Class E
preferred stock has an annual dividend rate of $1.6875 per share
and is convertible into ConAgra common stock at the rate of
1.017728 shares of common stock for each preferred share.
Therefore, 14.4 million common shares would be required for
conversion of all 14.2 million preferred shares.
If the Class E preferred stock is called, holders are likely
to choose conversion to common stock rather than cash redemption
if the market value of the converted shares exceeds the call
value, as is currently the case.
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