<PAGE>
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended August 24, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from __________ to __________
Commission File Number 1-7275
- --------------------------------------------------------------
CONAGRA, INC.
- --------------------------------------------------------------
(Exact name of registrant, as specified in charter)
Delaware 47-0248710
- ---------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One ConAgra Drive, Omaha, Nebraska 68102-5001
- ---------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
(402) 595-4000
- ---------------------------------------------------------------
(Registrant's telephone number, including area code)
NA
- ---------------------------------------------------------------
(Former name, former address and former fiscal year, if
changed since last report.)
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15 (d) of
the Securities Exchange Act of 1934 during the preceding 12
months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes [X] No [ ]
Number of shares outstanding of issuer's common stock, as of
October 1, 1997, was 471,982,078.
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1. CONDENSED FINANCIAL STATEMENTS
CONAGRA, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF EARNINGS
(In millions except per share amounts)
(unaudited)
THIRTEEN WEEKS ENDED
-------------------------
AUGUST 24, AUGUST 25,
1997 1996
---------- ----------
Net sales $ 6,140.4 $ 6,157.5
Costs and expenses
Cost of goods sold 5,298.4 5,365.6
Selling, administrative and general expenses 586.9 559.0
Interest expense, net 73.1 70.1
---------- ----------
5,958.4 5,994.7
---------- ----------
Income before income taxes 182.0 162.8
Income taxes 71.9 66.7
---------- ----------
NET INCOME $ 110.1 $ 96.1
========== ==========
NET INCOME PER COMMON AND COMMON EQUIVALENT SHARE $ 0.24 $ 0.21
========== ==========
Weighted average number of common and common
equivalent shares outstanding 459.1 457.9
========== ==========
Cash dividends declared per common share $ 0.136 $ 0.119
========== ==========
See notes to the condensed consolidated financial statements.
2
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CONAGRA, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Dollars in millions)
(unaudited)
<TABLE>
<CAPTION>
AUGUST 24, MAY 25, AUGUST 25,
1997 1997 1996
---------- --------- ----------
<S> <C> <C> <C>
ASSETS
Current assets
Cash and cash equivalents $ 26.0 $ 105.8 $ 34.5
Receivables, less allowance for
doubtful accounts of $72.8, $67.2
and $61.5 2,377.3 1,367.6 2,376.7
Inventories 3,624.3 3,342.9 3,426.7
Prepaid expenses 416.0 388.7 439.4
--------- --------- ---------
Total current assets 6,443.6 5,205.0 6,277.3
--------- --------- ---------
Property, plant and equipment
Cost 5,272.9 5,274.3 5,022.3
Less
Accumulated depreciation (2,065.3) (2,031.8) (1,948.9)
Valuation reserve related to restructuring - - (176.8)
--------- --------- ---------
Property, plant and equipment, net 3,207.6 3,242.5 2,896.6
Brands, trademarks and goodwill, at cost
less accumulated amortization 2,420.7 2,434.0 2,457.3
Other assets 373.8 395.6 390.4
--------- --------- ---------
Total assets $12,445.7 $11,277.1 $12,021.6
========= ========= =========
</TABLE>
See notes to the condensed consolidated financial statements.
3
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CONAGRA, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Dollars in millions except per share amount)
(unaudited)
<TABLE>
<CAPTION>
AUGUST 24, MAY 25, AUGUST 25,
1997 1997 1996
----------- -------- ------------
<S> <C> <C> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Notes payable $ 3,207.7 $ 529.0 $ 3,521.5
Current installments of long-term debt 366.8 352.9 80.2
Accounts payable 1,063.7 1,894.7 861.5
Advances on sales 163.9 766.5 190.6
Other accrued liabilities 1,484.1 1,446.5 1,408.6
--------- --------- ---------
Total current liabilities 6,286.2 4,989.6 6,062.4
Senior long-term debt, excluding
current installments 1,572.2 1,605.7 1,502.3
Other noncurrent liabilities 918.9 935.1 959.9
Subordinated debt 750.0 750.0 750.0
Preferred securities of subsidiary company 525.0 525.0 525.0
Common stockholders' equity
Common stock of $5 par value,
authorized 1,200,000,000 shares,
issued 506,241,764, 506,161,530
and 506,051,430 2,531.2 1,265.4 1,265.1
Additional paid-in capital 459.7 643.3 434.4
Retained earnings 1,066.9 2,061.2 1,726.1
Foreign currency translation adjustment (43.0) (31.5) (33.3)
Less treasury stock, at cost, common
shares 34,284,418, 30,036,626
and 24,557,136 (798.6) (655.1) (497.4)
--------- --------- ---------
3,216.2 3,283.3 2,894.9
Less unearned restricted stock and value
of 24,950,494, 26,202,608
and 30,542,866 common shares held
in Employee Equity Fund (822.8) (811.6) (672.9)
--------- --------- ---------
Total common stockholders' equity 2,393.4 2,471.7 2,222.0
--------- --------- ---------
$12,445.7 $11,277.1 $12,021.6
========= ========= =========
</TABLE>
See notes to the condensed consolidated financial statements.
4
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CONAGRA, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Dollars in millions)
(unaudited)
<TABLE>
<CAPTION>
THIRTEEN WEEKS ENDED
------------------------
AUGUST 24, AUGUST 25,
1997 1996
---------- -----------
<S> <C> <C>
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS
Cash flows from operating activities
Net income $ 110.1 $ 96.1
Adjustments to reconcile net income to net cash
provided by operating activities
Depreciation and other amortization 90.2 88.0
Goodwill amortization 17.4 17.2
Other noncash items (includes nonpension
postretirement benefits) 26.2 10.3
Change in assets and liabilities before effects from
business acquisitions (2,852.6) (2,980.1)
-------- --------
NET CASH FLOWS FROM OPERATING ACTIVITIES (2,608.7) (2,768.5)
-------- --------
Cash flows from investing activities
Additions to property, plant and equipment (85.8) (124.4)
Payment for business acquisitions - (76.7)
Sale of businesses and property, plant and equipment 136.4 5.9
Notes receivable and other items 9.4 11.2
-------- --------
NET CASH FLOWS FROM INVESTING ACTIVITIES 60.0 (184.0)
-------- --------
Cash flows from financing activities
Net short-term borrowings 2,678.7 3,105.2
Proceeds from issuance of long-term debt 300.0 -
Repayment of long-term debt (320.1) (78.4)
Cash dividends paid (61.3) (53.9)
Treasury stock purchases (140.7) (105.4)
Employee Equity Fund stock transactions 11.9 4.4
Other items 0.4 1.4
-------- --------
NET CASH FLOWS FROM FINANCING ACTIVITIES 2,468.9 2,873.3
-------- --------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS (79.8) (79.2)
Cash and cash equivalents at beginning of period 105.8 113.7
-------- --------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 26.0 $ 34.5
======== ========
</TABLE>
See notes to the condensed consolidated financial statements.
5
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CONAGRA, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR THE THIRTEEN WEEKS ENDED AUGUST 24, 1997 AND AUGUST 25, 1996
(UNAUDITED)
1. ACCOUNTING POLICIES
The unaudited interim financial information included herein reflects the
adjustments (consisting solely of normal recurring adjustments) which are, in
the opinion of management, necessary for a fair presentation of the results
of operations, financial position, and cash flows for the periods presented.
Such interim information should be read in conjunction with the financial
statements and notes thereto included in the Company's 1997 annual report to
stockholders, which are incorporated by reference into the Company's annual
report on Form 10-K for the fiscal year ended May 25, 1997.
The results of operations for any interim period are not necessarily
indicative of the results to be expected for other interim periods or the
full year.
DERIVATIVE INSTRUMENTS - The SEC is requiring expanded disclosure for
derivative instruments which is fully effective for the Company's annual
financial statements for the fiscal year ended May 31, 1998. As required for
this interim report, specific information on the Company's accounting
policies for derivatives is provided below.
The Company uses derivatives for the purpose of hedging commodity price and
interest rate exposures which exist as a part of its ongoing business
operations.
In general, derivatives used as hedges must be effective at reducing the risk
associated with the exposure being hedged and must be designated as a hedge
at the inception of the contract. Accordingly, changes in market values of
derivative instruments must be highly correlated with changes in market
values of underlying hedged items both at inception of the hedge and over the
life of the hedge contract. Deferred gains or losses related to any
instrument 1) designated but ineffective as a hedge of existing assets,
liabilities, or firm commitments, or 2) designated as a hedge of an
anticipated transaction which is no longer likely to occur, are recognized
immediately in the statement of earnings.
INTEREST RATE SWAP AGREEMENTS - The Company utilizes interest rate swap
agreements to alter the impact of changes of interest rates. Interest
differentials to be paid or received on the swap are recognized in income as
incurred, as a component of interest expense.
COMMODITY CONTRACTS - Commodities are subject to price fluctuations which
create price risk. Generally, the Company intends to hedge commodities to
mitigate this price risk. The Company uses commodity futures, options,
forwards and swaps to manage price fluctuations of the underlying commodity.
While this may tend to limit the Company's ability to participate in
6
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CONAGRA, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR THE THIRTEEN WEEKS ENDED AUGUST 24, 1997 AND AUGUST 25, 1996
(UNAUDITED)
gains from commodity price fluctuations, it also tends to reduce the risk of
loss from changes in commodity prices.
Commodity price risk can be hedged by selling (or buying) the underlying
commodity, or by using an appropriate derivative instrument. The particular
hedging methods employed by the Company depend on a number of factors,
including availability of appropriate derivative contracts. The Company may,
at times, utilize non-exchange traded derivatives, in which case the Company
monitors the amount of associated credit risk.
ConAgra's board of directors has established policies which limit the amount
of unhedged inventory positions permissible for ConAgra's independent
operating companies. Trading businesses are generally limited to dollar risk
exposure stated in relation to equity capital. Processing company limits are
expressed in terms of weeks of commodity usage.
In the trading businesses, commodity contracts are marked-to-market with net
amounts due to or from brokers recorded in accounts receivable or payable and
the related gains or losses recorded in the statement of earnings. In the
processing companies, commodity contract gains and losses are deferred and
recognized as an adjustment to the basis of the underlying hedged commodity
purchased; gains or losses are recognized in the statement of earnings as a
component of cost of goods sold.
The cash flows related to derivative financial instruments are classified in
the statement of cash flows in a manner consistent with those of the
transactions being hedged.
EARNINGS PER SHARE - Statement of Financial Accounting Standards No. 128
(SFAS No. 128), EARNINGS PER SHARE, requires presentation of basic and
diluted earnings per share, replacing prior presentation of primary and fully
diluted earnings per share. Basic earnings per share is calculated on the
basis of weighted average outstanding common shares, after giving effect to
preferred stock dividends. Diluted earnings per share is computed on the
basis of weighted average outstanding common shares, outstanding options that
are dilutive, and equivalent shares assuming conversion of outstanding
convertible securities. Primary earnings per share and
7
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CONAGRA, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR THE THIRTEEN WEEKS ENDED AUGUST 24, 1997 AND AUGUST 25, 1996
(UNAUDITED)
pro forma earnings per share (the latter computed in accordance with SFAS No.
128) for the periods ended August 24, 1997 and August 25, 1996 are as follows:
AUGUST 24, AUGUST 25,
1997 1996
---------- ----------
Primary earnings per share -
as reported $ 0.24 $ 0.21
Pro forma diluted earnings per share 0.24 0.21
Pro forma basic earnings per share 0.25 0.21
2. CAPITAL STOCK
On July 11, 1997, the Company's Board of Directors declared a two-for-one
split of the Company's common stock in the form of a stock dividend, payable
October 1, 1997, to shareholders of record as of September 5, 1997. All
share and per share data have been restated to reflect the stock split for
all periods presented.
3. INVENTORIES
The composition of inventories is as follows (in millions):
<TABLE>
<CAPTION>
AUGUST 24, MAY 25, AUGUST 25,
1997 1997 1996
------------ ---------- ----------
<S> <C> <C> <C>
Hedged commodities $ 1,100.9 $ 1,169.8 $ 904.8
Food products and livestock 1,401.2 1,191.0 1,257.5
Agricultural chemicals,
fertilizer and feed 662.1 381.4 654.9
Retail merchandise 12.9 127.5 120.0
Other, principally
ingredients and supplies 447.2 473.2 489.5
------------ ---------- ----------
$ 3,624.3 $ 3,342.9 $ 3,426.7
========== ========== ==========
</TABLE>
8
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CONAGRA, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR THE THIRTEEN WEEKS ENDED AUGUST 24, 1997 AND AUGUST 25, 1996
(UNAUDITED)
4. CONTINGENCIES
In fiscal 1991, ConAgra acquired Beatrice Company ("Beatrice"). As a result
of the acquisition and the significant pre-acquisition tax and other
contingencies of the Beatrice businesses and its former subsidiaries, the
consolidated post-acquisition financial statements of ConAgra reflected
significant liabilities and valuation allowances associated with the
estimated resolution of these contingencies. The material pre-acquisition
tax contingencies were resolved in fiscal 1995.
Beatrice is also engaged in various litigation and environmental proceedings
related to businesses divested by Beatrice prior to its acquisition by
ConAgra. The environmental proceedings include litigation and administrative
proceedings involving Beatrice's status as a potentially responsible party at
42 Superfund, proposed Superfund or state-equivalent sites. Beatrice has
paid or is in the process of paying its liability share at 38 of these sites.
Substantial reserves for these matters have been established based on the
Company's best estimate of its undiscounted remediation liabilities, which
estimates include evaluation of investigatory studies, extent of required
cleanup, the known volumetric contribution of Beatrice and other potentially
responsible parties and its experience in remediating sites.
ConAgra is a party to a number of other lawsuits and claims arising out of
the operation of its businesses.
After taking into account liabilities recorded for all of the foregoing
matters, management believes the ultimate resolution of such matters should
not have a material adverse effect on ConAgra's financial condition, results
of operations or liquidity.
5. SENIOR LONG-TERM DEBT
On August 1, 1997, the Company issued $300 million of senior notes with an
interest rate of 6.70% due August 1, 2027 and redeemable at the option of the
holders on August 1, 2009. The notes were priced at par.
9
<PAGE>
CONAGRA, INC. AND SUBSIDIARIES
PART I - FINANCIAL INFORMATION
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Following is management's discussion and analysis of certain significant
factors which have affected the Company's financial condition and operating
results for the periods included in the accompanying consolidated condensed
financial statements. Results for the fiscal 1998 first quarter are not
necessarily indicative of results which may be attained in the future.
This report contains forward-looking statements. The statements reflect
management's current views and estimates of future economic circumstances,
industry conditions, company performance and financial results. The
statements are based on many assumptions and factors including availability
and prices of raw materials, product pricing, competitive environment and
related market conditions, operating efficiencies, access to capital and
actions of governments. Any changes in such assumptions or factors could
produce significantly different results.
FINANCIAL CONDITION
The Company's capital investment (working capital plus noncurrent assets)
decreased $128 million compared to May 25, 1997. Working capital decreased
$58 million and noncurrent assets decreased $70 million. The decreases were
primarily caused by the sale of businesses. There was an increase in short
term debt primarily related to financing normal seasonal increases in
accounts receivable and inventory and treasury stock repurchases.
The Company's objective is that senior long-term debt normally will not
exceed 30 percent of total long-term debt plus equity. This objective was
met for all periods presented.
10
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CONAGRA, INC. AND SUBSIDIARIES
PART I - FINANCIAL INFORMATION
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
OPERATING RESULTS
A summary of the period to period increases (decreases) in the principal
components of operations is shown below (dollars in millions, except per
share amounts).
<TABLE>
<CAPTION>
COMPARISON OF THE THIRTEEN
WEEKS ENDED
AUGUST 24, 1997 TO AUGUST 25, 1996
----------------------------------
DOLLAR PERCENT
CHANGE CHANGE
--------- --------
<S> <C> <C>
Net sales $ (17.1) (0.3)
Costs and expenses
Cost of goods sold (67.2) (1.3)
Selling, administrative and general expenses 27.9 5.0
Interest expense, net 3.0 4.3
Income before income taxes 19.2 11.8
Income taxes 5.2 7.8
Net income 14.0 14.6
Net income per common and common
equivalent share 0.03 14.3
</TABLE>
ConAgra's total sales in the first quarter were about even with the same
period last year, while costs and expenses were down versus the first quarter
of fiscal 1997. Sales and cost of goods sold increased in the Food Inputs &
Ingredients segment primarily due to ConAgra's major crop inputs business,
United Agri Products. Sales increased in the Grocery & Diversified Products
segment while cost of goods sold decreased. Refrigerated Foods segment sales
and related cost of goods sold declined in the first quarter. Selling,
administrative and general expenses increased in the Food Inputs &
Ingredients and Grocery & Diversified Products segments and decreased in the
Refrigerated Foods segment compared to the same period in fiscal 1997.
In ConAgra's Food Inputs & Ingredients industry segment, operating profit
increased 38 percent
11
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CONAGRA, INC. AND SUBSIDIARIES
PART I - FINANCIAL INFORMATION
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
and sales increased 3 percent in fiscal 1998's first quarter versus fiscal
1997's first quarter.
United Agri Products had increased sales and a significant operating profit
gain. Flour milling and specialty food ingredients both achieved strong
earnings growth. Earnings declined in the trading businesses but are
generally expected to improve post-harvest. Segment sales growth was
constrained by a business divestiture in fiscal 1998's first quarter and
lower wheat prices passed through as lower flour selling prices.
In ConAgra's Grocery & Diversified Products industry segment, operating
profit increased 2 percent and sales increased 3 percent in fiscal 1998's
first quarter versus fiscal 1997's first quarter.
ConAgra Frozen Foods sales and operating profit increased. The Lamb-Weston
potato products business and the Golden Valley microwave foods business
increased earnings significantly. Hunt-Wesson's earnings dropped, as
planned, due to heavy spending to introduce several lines of new products.
In ConAgra's Refrigerated Foods industry segment, operating profit decreased
7 percent and sales decreased 3 percent in fiscal 1998's first quarter versus
fiscal 1997's first quarter.
The branded processed meats business improved margins and increased earnings
significantly. Earnings rose in the Australia beef business and declined in
the U.S. beef business. The pork products business was profitable, but
earnings were down due to the industry's high cost of raw materials. Chicken
products results improved, while earnings were down in turkey products.
Cheese business earnings were down modestly.
Operating profit is based on net sales less all identifiable operating
expenses and includes the related equity in earnings of companies included on
the basis of the equity method of accounting. General corporate expense,
interest expense (except financial businesses), income taxes and goodwill
amortization are excluded from segment operating profit. For financial
businesses, operating profit includes the effect of interest, which is a
large element of their operating costs.
For ConAgra in total, sales decreased slightly to $6.14 billion in fiscal
1998's first quarter from $6.16 billion in fiscal 1997's first quarter.
ConAgra's fiscal 1998 first quarter effective tax rate was 39.5 percent
compared to 41.0 percent in fiscal 1997's first quarter and 39.6 percent for
all of fiscal 1997. Fiscal 1998 first quarter earnings per share rose 14.3
percent to 24 cents from 21 cents in last year's first quarter. Net income
increased 14.6 percent to $110.1 million from $96.1 million a year ago.
12
<PAGE>
CONAGRA, INC. AND SUBSIDIARIES
PART II - OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
ConAgra's annual meeting of stockholders was held on September 25, 1997.
The stockholders elected five directors to serve three-year terms, ratified
the appointment of Deloitte & Touche to examine ConAgra's financial
statements for fiscal year 1998, and did not approve a stockholder proposal.
Voting on these items was as follows:
1. ELECTION OF DIRECTORS
FOR WITHHELD
Philip B. Fletcher 195,650,149 2,537,038
Robert A. Krane 195,777,376 2,409,811
Gerald Rauenhorst 195,640,443 2,546,744
Bruce C. Rohde 197,185,243 1,001,944
Walter Scott, Jr. 197,237,915 949,272
2. RATIFICATION OF ACCOUNTANTS
FOR: 196,470,953
AGAINST: 864,638
ABSTAIN: 860,389
BROKER/NON-VOTES: 3
3. STOCKHOLDER PROPOSAL ON POLITICAL SOFT DOLLAR CONTRIBUTIONS
FOR: 17,579,853
AGAINST: 150,915,772
ABSTAIN: 8,133,328
BROKER/NON-VOTES: 21,567,030
ITEM 5. OTHER INFORMATION
As previously announced on July 11, 1997, Bruce Rohde was elected Chief
Executive Officer of ConAgra on September 25, 1997. Mr. Rohde continues to
serve as Vice Chairman of the Board and President of ConAgra.
On September 25, 1997, ConAgra's Board of Directors approved a 14.7%
increase in ConAgra's common stock dividend. ConAgra had previously
announced a two-for-one common stock split effective October 1, 1997 for
stockholders of record on September 5, 1997. On September 25, 1997,
ConAgra's Board of Directors declared a quarterly common stock cash dividend
of 15.625 cents per share payable December 1, 1997 to stockholders of record
as of
13
<PAGE>
November 7, 1997. The quarterly dividend previously was 13.625 cents per
share. The new indicated annual dividend rate is 62.5 cents per share, up
from the previous 54.5 cents per share.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(A) EXHIBITS
3.1 - Bylaws of ConAgra as amended through September 25,
1997.
4.1 - Certificate of Adjustment dated October 1, 1997 to
Rights Agreement dated as of July 12, 1996.
12 - Statement regarding computation of ratio of
earnings to fixed charges.
(B) REPORTS ON FORM 8-K
ConAgra filed a report on Form 8-K dated July 11, 1997
reporting (i) the election of Bruce Rohde as Chief Executive
Officer effective September 25, 1997, and (ii) the two-for-one
stock split effective October 1, 1997.
CONAGRA, INC.
By: /s/ James P. O'Donnell
______________________________
James P. O'Donnell
Executive Vice President,
Chief Financial Officer
Corporate Secretary
By: /s/ Kenneth W. DiFonzo
______________________________
Kenneth W. DiFonzo
Senior Vice President and
Controller
Dated this 7th day of October, 1997.
14
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION PAGE
3.1 Bylaws of ConAgra as amended through
September 25, 1997
4.1 Certificate of Adjustment dated October 1,
1997 to Rights Agreement dated as of
July 12, 1996
12 Statement regarding computation of ratio
of earnings to fixed charges
15
<PAGE>
EXHIBIT 3.1
BY-LAWS
OF
CONAGRA, INC.
ARTICLE I
OFFICES
Section 1. Principal Executive Office. The principal executive
office of ConAgra, Inc. (ConAgra) shall be located in the City of Omaha, County
of Douglas, State of Nebraska. ConAgra may have such other offices as the Board
of Directors may designate or as the business of ConAgra may require from time
to time.
Section 2. Principal Place of Business. The principal place of
business may be, but need not be, identical with the location of the principal
executive office. The resident agent of ConAgra shall be as designated from
time to time by resolution of the Board of Directors.
ARTICLE II
STOCKHOLDERS
Section 1. Annual Meetings. The annual meeting of the stockholders
shall be held on a date and at an hour determined by the Board of Directors,
which meeting will be held no later than 140 days after the close of each fiscal
year, for the purpose of electing officers and for the transaction of such other
business as may properly come before the meeting. If the election of the
directors shall not be held on the day designated herein for any annual meeting
of the stockholders, or at any adjournment thereof, the Board of Directors shall
cause the election to be held at a special meeting of the stockholders as soon
thereafter as may be convenient.
Section 2. Special Meetings. Special meetings of the stockholders,
for any purpose or purposes, may be called at any time by the Chairman of the
Board or the Chief Executive Officer of ConAgra or by a majority of the
directors of ConAgra.
Section 3. Place of Meeting. The Board of Directors may designate
Omaha, Douglas County, Nebraska, or such other place, either within or without
the State of Nebraska, as the place of meeting for any annual meeting or any
special meeting called by the Board of Directors.
Section 4. Notice of Meeting. Written or printed notice stating the
place, day, and hour of the meeting and, in case of a special meeting, the
purpose or purposes for which the meeting
1
<PAGE>
is called, shall be delivered not less than ten nor more than sixty days
before the day of the meeting, either personally or by mail, by or at the
direction of the Chairman of the Board, Chairman of the Executive Committee,
or the Chief Executive Officer, or the Secretary, to each stockholder of
record entitled to vote at such meeting. If mailed, such notice shall be
deemed to be delivered when deposited in the United States mail, addressed to
the stockholder at the address listed on the stock transfer books of ConAgra
with postage prepaid. ConAgra need not send notices to stockholders for whom
ConAgra has no current address, and action taken without notice to such
persons has the same force and effect as if notice had been given to them.
ConAgra shall be deemed to have no current shareholder address when two
consecutive annual meeting notices have been returned undeliverable, or when
at least two payments of dividends or interest sent by first class mail
during a twelve-month period have been returned undeliverable.
Section 5. Record Date. For the purpose of determining
stockholders entitled to notice of or to vote at any annual or special
meeting of stockholders or any adjournment thereof, the record date shall be
determined by the Board of Directors and shall be not less than ten days nor
more than sixty days before the meeting. When a determination of
stockholders entitled to vote at any meeting of stockholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof.
If no record date is fixed by the Board of Directors, the record
date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 6. Voting Lists. The officer or agent having charge of the
stock transfer ledger for shares of ConAgra shall prepare and make, at least
ten days before every meeting of stockholders, a complete list of
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be opened to the
examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to
the meeting. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present. The original or duplicate stock ledger shall be
the only evidence detailing stockholders who are entitled to examine such
list or to vote in person or by proxy at such election.
Section 7. Quorum. A majority of the outstanding shares of ConAgra
entitled to vote, represented in person or by proxy, shall constitute a
quorum at a meeting of stockholders. If less than a majority of the
outstanding shares are represented at a meeting, a majority of the shares so
represented may adjourn the meeting from time to time without further notice.
At such adjourned meeting at which a quorum shall be present or represented,
any business may be transacted which might have been transacted at the
meeting as originally notified. The stockholders present at a duly organized
meeting may continue to transact business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum.
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Section 8. Proxies. At all meetings of stockholders, a stockholder
may vote by proxy executed in writing by the stockholder or by his duly
authorized attorney in fact. Such proxy shall be filed with the Secretary of
ConAgra not less than three days prior to the date of such meeting, unless
the Secretary shall consent to the filing of a proxy at a later date. Unless
otherwise provided in the proxy, it shall be valid from the date of its
execution until three years after its date of execution.
Section 9. Voting of Shares by Certain Holders. Shares standing in
the name of another corporation may be voted by such officer, agent, or proxy
as the By-Laws of such corporation may prescribe, or, in the absence of such
provision, as the Board of Directors of such corporation may determine.
Shares held by an administrator, executor, guardian, conservator, or
other fiduciary may be voted by such person, either in person or by proxy,
without a transfer of such shares into the name of such person. Shares
standing in the name of a trustee may be voted by such trustee, either in
person or by proxy, but no trustee shall be entitled to vote such shares held
without a transfer of such shares into his name, as trustee.
Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted
by such receiver without the transfer thereof into his name if authority to
do so is contained in an appropriate order of the court.
Persons whose stock is pledged shall be entitled to vote, unless the
pledgor has effected the transfer on the books of ConAgra and has expressly
empowered the pledgee to vote thereon, in which case only the pledgee or his
proxy, may represent such stock and vote thereon.
Shares of its own stock belonging to ConAgra shall not be voted,
directly or indirectly, at any meeting, and shall not be counted in
determining the total number of outstanding shares at any given time.
Section 10. Notice of Stockholder Business. At an annual meeting
of the stockholders, only such business shall be conducted as shall have been
brought before the meeting (a) by or at the direction of the Board of
Directors or (b) by any stockholder of ConAgra who complies with the notice
procedures set forth in this Section 10. For business to be properly brought
before an annual meeting by a stockholder, a stockholder must have given
timely notice thereof in writing to the Secretary of ConAgra. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of ConAgra, not less than 60 nor more than 90
days prior to the first anniversary of the preceding year's annual meeting;
provided, however, that in the event the date of the annual meeting is
advanced by more than 20 days, or delayed by more than 60 days, from such
anniversary date, notice by the stockholder to be timely must be so delivered
or mailed and received not earlier than the 90th day prior to such annual
meeting and not later than the close of business on the later of the 60th day
prior to such annual meeting or the tenth day following the date on which
public announcement of the date of such meeting is first made. A
stockholder's notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (a) a brief
description of the business desired to be brought before the annual meeting
and the reasons for conducting such business at the annual meeting, (b) the
name and address, as they appear on ConAgra's books, of the stockholder
proposing such business, (c) the class and number of shares of ConAgra which
are beneficially owned by the stockholder and (d) any
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material interest of the stockholder in such business. Notwithstanding
anything in the By-Laws to the contrary, no business shall be conducted at an
annual meeting except in accordance with the procedures set forth in this
Section 10. The Chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section 10, and
if he should so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
Section 11. Notice of Stockholder Nominees. Only persons who are
nominated in accordance with the procedures set forth in these By-Laws shall
be eligible for election as directors. Nominations of persons for election
to the Board of Directors of ConAgra may be made at a meeting of stockholders
(a) by or at the direction of the Board of Directors or (b) by any
stockholder of ConAgra entitled to vote for the election of directors at the
meeting who complies with the notice procedures set forth in this Section 11.
Such nominations, other than those made by or at the direction of the Board
of Directors, shall be made pursuant to timely notice in writing to the
Secretary of ConAgra. To be timely, a stockholder's notice shall be
delivered to or mailed and received at the principal executive offices of
ConAgra not less than 60 nor more than 90 days prior to the first anniversary
of the preceding year's annual meeting; provided, however, that in the event
the date of the annual meeting is advanced by more than 20 days, or delayed
by more than 60 days, from such anniversary date, notice by the stockholder
to be timely must be so delivered or mailed and received not earlier than the
90th day prior to such annual meeting and not later than the close of
business on the later of the 60th day prior to such annual meeting or the
tenth day following the date on which public announcement of the date of such
meeting is first made. Such stockholder's notice shall set forth (a) as to
each person whom the stockholder proposes to nominate for election or
re-election as a director, all information relating to such person that is
required to be disclosed in solicitations of proxies for election of
directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (including such
person's written consent to be named as a nominee and to serving as the
director if elected); and (b) as to the stockholder giving the notice (i) the
name and address, as they appear on ConAgra's books, of such stockholder and
(ii) the class and number of shares of ConAgra which are beneficially owned
by such stockholder. At the request of the Board of Directors any person
nominated by the Board of Directors for election as a director shall furnish
to the Secretary of ConAgra that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee. No person
shall be eligible for election as a director of ConAgra unless nominated in
accordance with the procedures set forth in the By-Laws. The Chairman of the
meeting shall, if the facts warrant, determine and declare to the meeting
that a nomination was not made in accordance with the procedures prescribed
by the By-Laws, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
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ARTICLE III
BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of ConAgra
shall be managed by or under the direction of its Board of Directors.
Section 2. Number, Tenure and Qualifications. The number of
directors of ConAgra, not less than nine nor more than sixteen, shall be
fixed by resolution of the Board of Directors and may be altered from time to
time by a resolution of the Board of Directors. Directors need not be
residents of the State of Delaware or stockholders of ConAgra. The directors
shall be divided into three classes: Class I, Class II and Class III, each
such class, as nearly as possible, to have the same number of directors. At
each annual election of directors by the stockholders of ConAgra, the
directors chosen to succeed those whose terms are then expired shall be
identified as being of the same class as the directors they succeed and shall
be elected by the stockholders of ConAgra for a term expiring at the third
succeeding annual election of directors, or thereafter when their respective
successors in each case are elected by the stockholders and qualify.
Section 3. Regular Meetings. A regular meeting of the Board of
Directors shall be held on the same date as the annual meeting of
stockholders. Three or more other regular meetings of the Board of Directors
shall be held during the year with such meetings on dates approved by a
majority of the Board of Directors. The Chairman of the Board or the Chief
Executive Officer or the Secretary shall designate the time and place of such
meeting by written notice mailed to each director at least ten days before
the meeting. In the event meeting dates are not approved by a majority of
the Board of Directors, regular meetings shall be held on the third Thursday
of January, May, July and September. Meetings of the Board of Directors may
be held either within or without the State of Delaware. The Board of
Directors may provide, by resolution, the time and place, either within or
without the State of Delaware, for the holding of the regular meetings or
additional regular meetings without other notice than such resolution.
Section 4. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the Chairman of the Board,
Chairman of the Executive Committee, Chief Executive Officer, or a majority
of the Board of Directors. The person or persons authorized to call special
meetings of the Board of Directors may fix any place, either within or
without the State of Delaware, as the place for holding any special meeting
of the Board of Directors called by them.
Section 5. Notice. Notice shall be given three days in advance of
any special meeting of the Board of Directors, or in emergency situations
designated by the Chairman of the Board, Chairman of the Executive Committee,
or the Chief Executive Officer, 12 hours' notice of a special meeting of the
Board of Directors may be given, by telegram, telephone or personal delivery.
If mailed, such notice shall be deemed to be delivered when deposited in the
United States mail so addressed, with postage prepaid. If notice is given by
telegram, such notice shall be deemed to be delivered when the telegram is
delivered to the telegraph company. Any director may waive notice of any
meeting. The attendance of a director at a meeting shall constitute a waiver
of notice of such meeting, except where a director attends a meeting for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened. Neither the
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business to be transacted at, nor the purpose of, any regular or special
meeting of the Board of Directors need be specified in the notice or waiver
of notice of such meeting.
Section 6. Quorum. A majority of the number of directors fixed by
Section 2 of this Article III shall constitute a quorum for the transaction
of business at any meeting of the Board of Directors, but if less than such
majority is present at a meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice.
Section 7. Manner of Acting. The act of the majority of the
directors present at a meeting at which a quorum is present shall be the act
of the Board of Directors. Any action required or permitted to be taken at
any meeting of the Board of Directors may be taken without a meeting if,
prior to such action, a written consent thereto is signed by all members of
the board and such written consent is filed with the minutes of the
proceedings of the Board. A consent and agreement in lieu of meeting may be
made either by one consent signed by all the directors or by individual
consents signed by each director. The directors may also meet by means of
conference telephone or similar communications equipment as provided by
Delaware law.
Section 8. Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be
filled by a majority of the directors then in office, although less than a
quorum.
Section 9. Compensation. By resolution of the Board of Directors,
the directors may be paid expenses, if any, for attendance at each meeting of
the Board of Directors. In addition, by resolution of the Board of
Directors, each director may be paid an annual retainer fee and committee
fees for services as director and may also receive a fee for attendance at
regular or special meetings of the Board of Directors. No such payment shall
preclude any director from serving ConAgra in any other capacity and
receiving compensation therefor.
Section 10. Directors' Executive Committee. An Executive Committee
of three or more directors may be designated by resolution passed by a
majority of the Board. The Board shall designate one director as chairman of
the committee, and may designate one or more directors as alternate members
of the committee who may replace any absent or disqualified member at any
meeting of the committee. During the intervals between meetings of the
Board, the committee shall advise and aid the officers of ConAgra in all
matters concerning its interests and the management of its business, and
generally perform such duties as may be directed by the Board from time to
time. The committee shall possess and may exercise all the powers of the
Board while the Board is not in session, but specifically shall not have the
authority of the Board of Directors in reference to:
1. Amending the Articles of Incorporation.
2. Adopting a plan of merger or consolidation.
3. Recommending to the stockholders the sale, lease, exchange,
mortgage, pledge or other disposition of all or substantially all
the property and assets of ConAgra otherwise than in the usual
and regular course of its business.
4. Recommending to the stockholders a voluntary dissolution of
ConAgra or a revocation thereof.
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5. Amending the By-Laws of ConAgra.
6. Any power which has been delegated to other committees in
accordance with these By-Laws.
7. To elect any director or to elect or remove any member of the
Executive Committee or any principal officer, or
8. To declare any dividend or authorize any distribution or any
shares of capital stock of ConAgra.
Section 11. Human Resources Committee. A Human Resources
Committee shall be designated by a resolution passed by a majority of the
Board of Directors. The Board shall appoint one of the Committee members to
serve as Chairman.
Section 12. Audit Committee. An Audit Committee shall be
designated by a resolution passed by a majority of the Board of Directors.
The Board shall appoint one of the Committee members to serve as Chairman.
Section 13. Other Committees. One or more other Board of
Directors' committee members and chairman thereof may be designated by
resolution passed by a majority of the Board.
ARTICLE IV
OFFICERS
Section 1. Number and Status. The Board of Directors will elect a
chairman of the Board, may elect a vice chairman of the Board, and may elect
such honorary (non-voting) directors as deemed advisable. The elected
officers of ConAgra shall consist of the Chief Executive Officer (CEO) who
shall also carry the legal title of president; one or more members of the
CEO's Council (the number thereof to be designated by the CEO); one or more
elected corporate Vice Presidents (the number thereof to be determined by the
CEO); a Secretary and may include a President and Chief Operating Officer.
The CEO shall be nominated and elected by the Board of Directors. Other
elected officers shall be nominated by the CEO and elected by a majority of
the Board of Directors. Other corporate officers, including a Treasurer, and
assistant corporate officers as may be deemed necessary by the CEO may be
appointed by the CEO and shall be confirmed by the Board of Directors. The
CEO may also designate as many Independent Operating Companies' (IOC)
officers as the CEO deems necessary to manage operating units of ConAgra.
Authority of IOC officers shall relate only to businesses for which they have
been assigned responsibility. No authority granted to IOC officers shall
conflict with authorities granted by these By-Laws or by resolutions of the
Board of Directors.
Section 2. Election and Term of Office. The officers of ConAgra to
be elected or confirmed by a majority of the Board of Directors shall be
elected and confirmed annually at the meeting of the Board of Directors on
the same date as the annual meeting of stockholders. If the election and
appointment of officers shall not be held at such meeting, then they shall be
held as soon
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thereafter as conveniently possible. Each officer shall hold office until
the officer's death, or resignation, or removal in the manner hereinafter
provided.
Section 3. Removal. Officers elected by the Board of Directors may
be removed at any time by a majority vote of the Board of Directors or by the
CEO, with such action to be affirmed by a majority vote of the Board of
Directors. Appointed corporate and IOC officers may be removed from office
by the CEO or any officer designated by the CEO to have such authority. The
acceptance of office by an officer shall constitute acceptance of this
provision.
Section 4. Vacancies. A vacancy in any elected office because of
death, resignation, removal, disqualification or otherwise, shall be filled
by a majority vote of the Board of Directors for the unexpired portion of the
term. The CEO may fill vacancies of appointed corporate and IOC officers.
Section 5. Chairman of the Board of Directors. The chairman of the
Board of Directors shall preside at all meetings of stockholders and the
Board of Directors, and shall have such other duties as may be assigned by
resolution of the Board of Directors.
Section 6. Vice Chairman of the Board of Directors. The vice
chairman of the Board of Directors may preside at meetings of the Board of
Directors in the absence of the chairman of the Board of Directors and the
CEO, and shall have such other duties as may be assigned by resolution of the
Board of Directors.
Section 7. Chief Executive Officer (CEO). Subject to authority of
the Board of Directors, the Chief Executive Officer shall be the highest
ranking management officer of ConAgra, lead its business affairs and perform
all duties incident to the office of chief executive. The CEO shall preside
at all meetings of the stockholders and of the Board of Directors in the
absence of the chairman of the Board of Directors. The CEO may sign with the
Secretary or any other elected officer, certificates for shares of ConAgra;
may sign (or authorize a designee to sign) deeds, mortgages, bonds,
contracts, or other instruments within authority granted by the Board of
Directors (except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Directors or by these By-Laws to some
other officer or agent of ConAgra). The CEO shall assign job duties,
responsibilities, and authorities to other officers of ConAgra, or designate
others to do so on his behalf. In the event of the CEO's inability to serve,
CEO duties shall be temporarily fulfilled, pending action by the Board of
Directors, first by the Chairman of the Board, or next in line by the
Chairman of the Executive Committee, or next by the Chairman of the Audit
Committee, or next by the Chairman of the Compensation Committee.
Section 8. President and Chief Operating Officer. There may be one
President and Chief Operating Officer of ConAgra. This individual will
report directly to the CEO and shall have such duties, responsibilities and
authority as, from time to time, are assigned by the CEO or the Board of
Directors.
Section 9. CEO's Council. ConAgra shall have a CEO's Council, the
members of which shall be nominated by the CEO and elected by the Board of
Directors. Each member will report to ConAgra's CEO or the CEO's designee,
and shall have such duties, responsibilities and authority as, from time to
time, are assigned by the CEO, President and Chief Operating Officer of
ConAgra, or the Board of Directors.
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Section 10. Corporate Vice Presidents. Any elected Vice President
may sign, with the Secretary or Assistant Secretary, certificates for shares
of ConAgra. All ConAgra vice president shall perform such duties and have
such responsibility and authority as from time to time may be assigned by the
CEO, an officer so authorized by the CEO, or the Board of Directors.
Section 11. The Secretary. The Secretary shall: (a) Keep the
minutes of the stockholders' meetings and of the Board of Directors'
meetings; (b) See that all notices are fully given in accordance with the
provisions of these By-Laws or required by law; (c) Be custodian of ConAgra
minutes and of the seal of ConAgra; (d) Sign certificates for shares of
ConAgra, the issuance of which shall have been authorized by resolution of
the Board of Directors; (e) Supervise activities of transfer agents and
registrars; (f) In general perform duties incident to the office of the
Secretary as from time to time may be assigned by the CEO or the Board of
Directors.
Section 12. The Treasurer. The Treasurer shall perform duties
incident to the office of the Treasurer in accordance with these By-Laws, and
shall perform such other duties as, from time to time, may be assigned by the
CEO, Board of Directors, or officer to whom the Treasurer reports.
Section 13. Assistant Secretaries and Assistant Treasurers. The
Assistant Secretaries and Assistant Treasurers shall perform such duties as
shall be assigned to them by the Secretary or Treasurer, respectively, by the
CEO or by the Board of Directors.
Section 14. Salaries. The salaries of the elected and confirmed
officers shall be fixed from time to time by the Board of Directors or by
those so authorized by the Board of Directors. No officer shall be prevented
from receiving a salary by reason of the fact that such person is also a
director of ConAgra.
ARTICLE V
CONTRACTS, LOANS, CHECKS, AND DEPOSITS
Section 1. Contracts. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or execute
and deliver any instrument in the name of and on behalf of ConAgra, and such
authority may be general or confined to specific instances.
Section 2. Loans. No loans shall be contracted on behalf of
ConAgra and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instances.
Section 3. Checks, Drafts, etc. All checks, drafts, other orders
for the payment of money, notes, or other evidences of indebtedness issued in
the name of ConAgra shall be executed on behalf of ConAgra only by those who
are authorized by the Board of Directors or by those whom the Board may
designate to give such authorization. Such authorization may be general or
confined to specific instances.
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Section 4. Deposits. All funds of ConAgra not otherwise employed
shall be deposited to the credit of ConAgra in banks, trust companies, or
other depositaries, approved in accordance with resolutions of the Board of
Directors.
ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 1. Certificates for Shares. Certificates representing
shares of ConAgra shall be in such form as shall be determined by the Board
of Directors. Such certificates shall be signed by the Chairman, Chief
Executive Officer, Chief Operating Officer, or a Corporate Vice President and
by the Secretary or an Assistant Secretary, except that where such
certificate is signed by a transfer agent the signatures of any such
Chairman, Chief Executive Officer, Chief Operating Officer, Corporate Vice
President, Secretary or Assistant Secretary may be facsimiles, engraved or
printed. All certificates for shares shall be consecutively numbered or
otherwise identified. The name and address of the person to whom the shares
represented thereby are issued, with the number of shares and date of issue,
shall be entered on the stock transfer books of ConAgra. All certificates
surrendered to ConAgra, or its agent, for transfer shall be canceled and a
new certificate shall be issued only after the former certificate for a like
number of shares shall have been surrendered and canceled, except that in
case of a lost, destroyed, or mutilated certificate a new one may be issued
therefor upon such terms and indemnity to ConAgra as the Board of Directors
may prescribe.
Section 2. Transfer of Shares. Transfer of shares of ConAgra shall
be made only on the stock transfer books of ConAgra by the holder of record
thereof or by his legal representative, who shall furnish proper evidence of
authority to transfer, or by his attorney authorized by power of attorney
duly executed and filed with the transfer agent of ConAgra, and on surrender
for cancellation of the certificate for such shares. The person in whose
name shares stand on the books of ConAgra shall be deemed by ConAgra to be
the owner thereof for all purposes.
Section 3. Fraction Shares. No fractional shares of stock of
ConAgra shall be transferred, issued, or reissued.
Section 4. Charge for Certificates. ConAgra may invoke a charge
approximately equal to the cost of issuing a stock certificate for each
certificate of stock to be issued or reissued in excess of the minimum number
of certificates required, if the number of certificates requested by a
stockholder is deemed by the Secretary to be unreasonable.
ARTICLE VII
INDEMNIFICATION
Section 1. Actions by Others. ConAgra shall indemnify any person
who was or is a party to or is threatened to be made a party to any
threatened, pending or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (other than an action by or in the
right of ConAgra) by reason of the fact that he is or was a director,
officer, employee or agent of ConAgra, or is or was serving at the request of
ConAgra as a director, officer, employee or agent of ConAgra, or is or was
serving at the request of ConAgra as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust, or other
enterprise, against expenses (including
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attorneys' fees), judgments, fines, and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of ConAgra, and, with respect
to any criminal action or proceedings, had no reasonable cause to believe his
conduct was criminal. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person
did not act in good faith and in a manner which he reasonably believed to be
in or not opposed to the best interest of ConAgra, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his
conduct was criminal.
Section 2. Actions by or in the Right of ConAgra. ConAgra shall
indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the
right of ConAgra to procure a judgment in its favor by reason of the fact
that he is or was a director, officer, employee or agent of ConAgra, or is or
was serving at the request of ConAgra, as a director, officer, employee, or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of ConAgra and except
that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to
ConAgra unless and only to the extent that the Delaware Court of Chancery or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which the Delaware Court of Chancery or such
other court shall deem proper.
Section 3. Successful Defense. To the extent that a director,
officer, employee or agent of ConAgra has been successful on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to in
Sections 1 and 2 of this Article, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
Section 4. Specific Authorization. Any indemnification under
Section 1 and 2 of this Article (unless ordered by a court) shall be made by
ConAgra only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth
in said Sections 1 and 2. Such determination shall be made (1) by the Board
of Directors by a majority vote of a quorum consisting of directors who were
not parties to such action, suit or proceeding, or (2) if such quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders.
Section 5. Advance of Expenses. Expenses incurred by an elected
officer or director in defending a civil or criminal action, suit or
proceeding shall be paid by ConAgra in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or elected officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by ConAgra
as authorized in this Article. Such expenses incurred by other officers,
employees and agents may be so paid upon such terms and conditions, if any,
as the Board of Directors deem appropriate.
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Section 6. Right of Indemnity Not Exclusive. The indemnification
and advancement of expenses provided by or granted pursuant to the
Certificate of Incorporation or these By-Laws shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any By-Law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office.
Section 7. Insurance. ConAgra may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent
of ConAgra, or is or was serving at the request of ConAgra as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as
such, whether or not ConAgra would have the power to indemnify him against
such liability under the provisions of this Article, Section 145 of the
General Corporation Law of the State of Delaware, or otherwise.
Section 8. Employee Benefit Plans. For purposes of this Article,
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person
with respect to an employee benefit plan; and references to "serving at the
request of ConAgra" shall include any service as a director, officer,
employee or agent of ConAgra which imposes duties on, or involves services
by, such director, officer, employee, or agent with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in
good faith and in a manner he reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of
ConAgra" as referred to in this Article.
Section 9. Invalidity of any Provisions of this Article. The
invalidity or unenforceability of any provisions of this Article shall not
affect the validity or enforceability of the remaining provisions of this
Article.
Section 10. Continuation of Indemnification. The indemnification
and advancement of expenses, to the extent provided by or granted pursuant to
this Article, these By-Laws, or the Certificate of Incorporation shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors, and
administrators of such person. All rights to indemnification provided by or
granted pursuant to this Article, these By-Laws, or the Certificate of
Incorporation shall be deemed to be a contract between ConAgra and each
director, officer, employee, or agent of ConAgra who serves or served in such
capacity at any time while this Article VII is in effect. Any repeal or
modification of this Article VII shall not in any way diminish any rights to
indemnification of such directors, officer, employee or agent, or the
obligations of ConAgra arising hereunder.
ARTICLE VIII
FISCAL YEAR
The fiscal year of ConAgra shall end on the last Sunday in May.
12
<PAGE>
ARTICLE IX
DIVIDENDS
The Board of Directors may from time to time declare, and ConAgra
may pay, dividends on its outstanding shares in the manner and upon the terms
and conditions provided by law and its Certificate of Incorporation.
ARTICLE X
SEAL
The Board of Directors shall provide a corporate seal which shall be
circular in form and shall have inscribed thereon the name of ConAgra, Inc.
on the outer edge, and the words, "Corporate Seal," in the center.
ARTICLE XI
WAIVER OF NOTICE
Whenever any notice is required to be given to any stockholder or
director of ConAgra under the provisions of these By-Laws or under the
provisions of the Certificate of Incorporation or under the provisions of the
laws of Delaware, a waiver thereof in writing, signed by the person or
persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
ARTICLE XII
AMENDMENTS
These By-Laws may be altered, amended, or repealed and new By-Laws
may be adopted by the Board of Directors at any regular or special meeting of
the Board of Directors.
13
<PAGE>
EXHIBIT 4.1
CERTIFICATE OF ADJUSTMENT
This is to certify pursuant to Section 12 of the Rights Agreement, dated as
of July 12, 1996, as amended (the "Rights Agreement"), between ConAgra, Inc., a
Delaware corporation (the "Company") and Chase Mellon Shareholder Services,
L.L.C., as Rights Agent, that:
I. Statement of Facts.
At its July 11, 1997 meeting, the Company's Board of Directors declared a
two-for-one split of the shares of common stock, par value $5.00 per share, of
the Company (the "Common Stock"), to be effected in the form of a stock dividend
(the "Distribution") on October 1, 1997 to holders of record of the Common Stock
on September 5, 1997.
II. Adjustments Pursuant to the Rights Agreement.
Pursuant to the provisions of the Sections 11(n) of the Rights Agreement
effective, as of October 1, 1997, the Right associated with each share of Common
Stock is hereby adjusted so that one-half Right shall be associated with each
share of Common Stock outstanding immediately after the Distribution.
Dated this 1st day of October, 1997.
CONAGRA, INC.
By: /s/ J. P. O'Donnell
___________________________
Name: J. P. O'Donnell
Title: Executive Vice President,
Chief Financial Officer
Corporate Secretary
1
<PAGE>
EXHIBIT 12
CONAGRA, INC. AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in millions)
THIRTEEN WEEKS
ENDED
AUGUST 24, 1997
---------------
Fixed charges
Interest expense $ 90.7
Capitalized interest 3.5
Interest in cost of goods sold 3.3
One third of non-cancellable lease rent 9.7
--------
Total fixed charges (A) $ 107.2
========
Earnings
Pretax income $ 182.0
Add fixed charges 107.2
Less capitalized interest (3.5)
Earnings and fixed charges (B) $ 285.7
========
Ratio of earnings to fixed charges (B/A) 2.7
For the purpose of computing the above ratio of earnings to
fixed charges, earnings consist of income before taxes and
fixed charges. Fixed charges, for the purpose of computing
earnings, are adjusted to exclude interest capitalized.
Fixed charges include interest on both long and short-term
debt (whether said interest is expensed or capitalized and
including interest charged to cost of goods sold), and a
portion of noncancellable rental expense representative of
the interest factor. The ratio is computed using the
amounts for ConAgra as a whole, including its majority-owned
subsidiaries, whether or not consolidated, and its
proportionate share of any 50% owned subsidiaries, whether
or not ConAgra guarantees obligations of these subsidiaries.
1
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