EXHIBIT 10.10
CONAGRA
NONQUALIFIED PENSION PLAN
1. Purpose. ConAgra has previously adopted the Restatement
of the ConAgra Pension Plan for Salaried Employees ("Qualified
Pension Plan"). The Qualified Pension Plan is qualified under Code
Section 401(a). Regardless of a qualified plan's benefit formula,
the Code imposes restrictions upon the benefits that may be
provided under plans qualified under Code Section 401(a), such as
limitations under Code Sections 401(a)(17), 402(g) and 415 ("Code
Restrictions"). These Code Restrictions limit the amount of
retirement benefits that may be provided certain ConAgra executives
under the Qualified Pension Plan. This Plan is intended to make up
the benefits (on an after-tax basis) not available under the
Qualified Pension Plan benefit formula because of the Code
Restrictions.
Since the contributions and earnings under this Plan are
not tax-deferred as are the contributions under the Qualified
Pension Plan, the benefits under this Plan will be tax-effected to
reflect this difference, so that the benefits under this Plan make
up on an after-tax basis the benefits not available under the
Qualified Pension Plan formula because of the Code Restrictions.
However, ConAgra recognizes that the tax effect to each Participant
is unique, and therefore, the benefits cannot be tax-effected to
certainty, but must be approximated.
2. Definitions. The following definitions shall apply to
the Plan:
2.1 "Business Combination or Acquisition" means (i) any
merger or consolidation of ConAgra with or into any other
corporation, (ii) the sale or lease of all or any
substantial part of the assets of ConAgra to any Other
Entity, and (iii) a tender offer or other series of stock
purchases which result in any Other Entity becoming the
beneficial owner of more than 50% of ConAgra's
outstanding voting securities.
2.2 "Code" means the Internal Revenue Code of 1986, as
amended.
2.3 "Committee" means the ConAgra Employee Benefits Committee
or any successor thereto. The Committee shall be the
"named fiduciary" as described in ERISA
Section 402(a)(2).
2.4 "Compensation Committee" means the Compensation Committee
of the Board of Directors of ConAgra.
2.5 "ConAgra" means ConAgra, Inc., a Delaware corporation.
2.6 "ConAgra Controlled Group" means the controlled group of
corporations as described in Code Section 414(b), which
includes ConAgra.
2.7 "Effective Date" of this Plan means January 1, 1988.
2.8 "Employee" shall have the same meaning as set forth in
the Qualified Pension Plan.
2.9 "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended.
2.10 "Other Entity" means any corporation, person or other
entity and any other entity with which it or its
affiliates or associates has any agreement, arrangement
or understanding, directly or indirectly, for the purpose
of acquiring, holding, voting or disposing of the stock
of ConAgra or which is an affiliate or associate of such
entity, together with the successors and assigns of such
persons.
2.11 "Participant" means an Employee who has satisfied the
eligibility requirements set forth in Section 3 of the
Plan and who has not received his total benefits under
the Plan.
2.12 "Past Service Cost" means the aggregate cost of providing
the benefits which relate to service of the Participant
prior to establishment of the Plan and prior to the
Employee becoming a Participant hereunder.
2.13 "Plan" means this plan which shall be called the ConAgra
Nonqualified Pension Plan.
2.14 "Plan Year" means the calendar year.
2.15 "Total and Permanent Disability" shall have the same
meaning as set forth in the Qualified Pension Plan.
2.16 "Trustee" means the entity or individual selected by the
Committee to be trustee of the trust. The Committee
shall select the Trustee and ConAgra shall enter into a
Trust Agreement with the Trustee.
2.17 "Year of Service" shall have the same meaning as set
forth in the Qualified Pension Plan.
3. Eligibility and Participation. Each Employee who meets
the following requirements shall participate in this Plan:
(a) The Employee participates in the Qualified Pension Plan;
(b) The Employee has completed One Year of Service; and
(c) The Employee's benefits under the Qualified Pension Plan
are limited by the Code Restrictions; and
(d) The Compensation Committee has selected the Employee to
participate in the Plan.
The Employee shall become a Participant in this Plan as of the
first day that he has met each of the above four requirements, or
such other date as selected by the Compensation Committee. Each
Participant shall continue to participate in this Plan until all
the benefits payable to the Participant under this Plan have been
paid.
4. Benefits.
4.1 Benefit Objectives. The objective of the Plan is to
provide each Participant with a benefit, assuming the
Participant's vesting schedule as described in Paragraph
4.5, which equals the excess of (a) over (b) where,
(a) equals the value of the after-tax Qualified
Pension Plan benefits the Participant would
have received had there not been any Code
Restrictions, and
(b) equals the value of the after-tax Qualified
Pension Plan benefits the Participant is
expected to receive.
No benefit shall be earned under this Plan for periods of
employment after the Participant has attained age 65.
The Plan is also intended to provide a tax gross-up to
reflect that this is an after-tax plan, whereas the
Qualified Pension Plan is a before-tax plan. The intent
is to provide the Participant with a combined after-tax
benefit from this Plan and the Qualified Pension Plan
that approximates the benefit the Participant would
receive had there not been any Code Restrictions.
4.2 General Funding. ConAgra shall fund each Participant's
Account sufficiently to meet the benefit objectives set
forth in Paragraph 4.1. At a minimum, each Plan Year,
ConAgra shall contribute to each Participant's Account an
amount equal to the sum of (a) and (b) below, where
(a) equals the actuarially determined lump sum value of
benefits that were not earned by the Participant
under the Qualified Pension Plan because of Code
Restrictions, and
(b) equals an amortization (over the Participant's
remaining years until age 65) of the Participant's
Past Service Cost.
Subject to the preceding, the Committee, in its sole and
absolute discretion, shall determine the amount of funding for
each Participant each Plan Year with the assistance of an
actuarial firm selected by the Committee. The Committee shall
select reasonable actuarial assumptions (in the aggregate) to
use to make the calculations.
4.3 Tax Gross-Up. In addition to other contributions
hereunder, ConAgra shall make a tax gross-up payment to
each Participant each Plan Year to approximate his
additional Federal and state income tax on account of the
Plan. The Committee shall determine the amount of the
payment and the Committee's determination shall be final,
conclusive and binding on, the Participant, the Trustee
and ConAgra. In making the determination, the Committee
may make any assumptions it deems appropriate, including,
but not limited to, the Participant's Federal and state
income tax rates and the earnings of the Participant's
Account. The Committee may, but is not required to,
assume that the same Federal and/or state income tax rate
applies to all Participants. Also, at the Committee's
discretion, all Participants may be treated differently
or the same, as long as the Committee has a reasonable
basis for such different treatment. It is expressly
understood that the payment contemplated by this
Paragraph 4.3 is an approximation and will not
necessarily be the taxes that result from the Plan to an
individual Participant. The Committee, in its
discretion, may make a portion or all of this payment to
the Participant's Account, rather than the Participant.
4.4 Business Combination or Acquisition. Notwithstanding any
other provisions of the Plan, upon a Business Combination
or Acquisition, any amounts necessary to immediately fund
the benefits vested hereunder pursuant to the
Participant's vesting schedule under Paragraph 4.5 shall
be immediately funded, unless 75% or more of the living
ConAgra Directors (who were Directors of ConAgra on the
date 1 year prior to the vote) vote not to have this
Paragraph 4.4 apply. Such amounts include all amounts
for past service of the Participant, all amounts for
future service of the Participant that are vested under
the applicable schedule described in Paragraph 4.5
assuming the Participant will be employed by ConAgra
until age 65 and a tax gross-up payment to the
Participant (or the Participant's Account) to reflect the
Federal and state income tax effects to the Participant
of the funding under this Paragraph 4.4. Notwithstanding
Section 12 of the Plan, this Paragraph 4.4 may not be
amended after the date of a Business Combination or
Acquisition unless such Business Combination or
Acquisition has received prior approval of 75% or more of
the ConAgra Directors who were Directors of ConAgra on
the date 1 year prior to such approval.
4.5 Vesting. There shall be three vesting schedules for the
Plan. The Compensation Committee shall determine which
vesting schedule applies to a Participant at the time the
Employee is selected to participate in the Plan. The
Compensation Committee may change the vesting schedule
that applies to a Participant, but in no event may a
Participant whose vesting schedule is Schedule C be
changed to Schedule B or A, nor may a Participant whose
vesting schedule is Schedule B be changed to Schedule A.
Under Schedule A, a Participant is always 100% vested in
his interest in the Plan that is earned for his past
service, but the Participant benefits related to future
service are forfeited upon his termination of employment
with ConAgra. Under Schedule B, a Participant is 100%
vested in his interest in the Plan that is earned for his
past service and that would be earned for the 5 Plan
Years following his entry into the Plan even if the
Participant terminates his employment prior to the end of
such 5 years. Under Schedule C, a Participant is 100%
vested in his interest in the Plan that is earned for his
past service and that would be earned for all future
years of service up to age 65. In all events, a
Participant shall be 100% vested in his interest in the
Plan earned in the year he terminates employment.
4.6 Funding Upon Death or Disability of Participant. If a
Participant dies, or becomes Totally and Permanently
Disabled, prior to age 65 while employed by ConAgra, no
additional funding shall be made with regard to potential
future service of the Participant. However, upon such
death, or Total and Permanent Disability, funding and
related tax gross-up shall be made as soon as possible to
adequately fund the Participant's death or disability
benefit. The Participant's benefit upon such death or
Total and Permanent Disability shall be the benefit that
can be provided based upon the assets in his
Participant's Account.
4.7 Funding Upon Early Retirement. A Participant may elect
early retirement under this Plan in the same manner and
to the same extent as provided in the Qualified Pension
Plan. If a Participant properly elects such early
retirement, immediate funding and related tax gross-up
will be made to adequately fund the Participant's early
retirement benefit.
4.8 Funding Upon Termination of Employment. Upon termination
of employment prior to age 65 (other than early
retirement under Paragraph 4.7 or death or disability
under Paragraph 4.6) funding and related tax gross-up
shall be made as soon as possible to adequately fund the
Participant's termination benefit. If the Participant's
vesting schedule is Schedule B or Schedule C any future
years funding shall be made in the applicable year (with
appropriate loss adjustments), subject to acceleration of
funding under Paragraph 4.4.
5. Participants' Accounts. A separate account shall be
established for each Participant in the Plan ("Participant's
Account"). Each Participant Account shall share in the earnings
and losses of the trust in proportion to the value of the account
on the first day of the valuation period. Each Participant's
Account shall be valued as often as determined appropriate by the
Committee, but at least once per Plan Year.
6. Participant Reports. Within 30 days after execution of
this document, each Participant will be provided a calculation
which sets forth the Participant's vested benefit under the Plan as
of that date including any vested benefit for future years of
service by the Participant. Thereafter, within 90 days after each
Plan Year end, each Participant shall receive a calculation which
sets forth the Participant's vested benefits under the Plan as of
the preceding December 31, including any vested benefits for future
years of service by the Participant.
7. Payment of Benefits. The benefits payable under this
Plan shall be payable upon the same event that causes the payment
of benefits under the Qualified Pension Plan. The form of benefits
hereunder shall be the same form as the form of benefit payments
provided under the Qualified Pension Plan with the same elections
to the Participant (and his spouse) as provided under the Qualified
Pension Plan. The amount of benefits shall be based upon the
balance in the Participant's Account with payment of benefits from
the Participant's Account payable until the Participant's Account
has a zero balance. The Trust shall purchase an annuity to fund
any payment of benefits that are to be paid in an annuity form.
8. Loss Adjustment. If the earnings and losses of a
Participant's Account do not equal or exceed the earnings rate
assumption used to compute funding under Paragraph 4.2, ConAgra
shall contribute a sufficient additional amount so that such
earnings and losses equal such earnings rate assumption. This
additional funding shall be made at such date or dates as
determined in the sole and absolute discretion of the Committee,
but no later than the earlier of the date necessary to make the
benefit payments contemplated by Paragraph 4.2 or the date of
funding pursuant to Paragraph 4.4. The intent of this Paragraph 8
is for ConAgra to incur the investment risk inherent in this
defined contribution plan, rather than the Participant. To the
extent any other provision of this Plan is inconsistent or contrary
to this Paragraph 8, this Paragraph 8 shall control.
9. Administration. This Plan shall be administered by the
Committee. The Committee shall make all determinations with regard
to the Plan, subject to the provisions of the Plan and any
determinations that are designated to be made by the Compensation
Committee. The Committee shall have the authority, subject to the
provisions of the Plan, to establish, adopt or revise rules and
regulations as it deems necessary or advisable for the
administration of the Plan. Claims procedures and claims review
procedures required by ERISA shall be developed by the Committee.
To the extent not inconsistent with the provisions of the Plan, all
determinations of the Committee shall be final, conclusive and
binding upon all the parties. Any determination or decision that
only affects a member of the Committee who is a Participant shall
be made by the Compensation Committee.
10. Beneficiary Designation. Designation of a beneficiary
under the Plan shall be in the same form and with the same
restrictions as under the Qualified Pension Plan.
11. Nonalienation of Benefits. No benefit payable under this
Plan shall be subject, at any time and in any manner, to
alienation, sale, transfer, assignment, pledge or encumbrance of
any kind.
12. Amendment and Termination. ConAgra, by action of its
Board of Directors, may amend or terminate this Plan at any time,
provided, however, no such action shall eliminate ConAgra's
obligation to provide the benefits intended to be provided by this
Plan for both past and future service of Employees who are
Participants in the Plan at the time of such action and this Plan
shall not be amended or terminated to eliminate or reduce any
benefits that a Participant shall receive. The Plan may only be
amended to reduce benefits of Employees who are not Participants at
the time of amendment and the Plan may only be terminated with
regard to Employees who are not Participants at the time of such
termination.
13. Applicable Law. This Plan and all rights hereunder shall
be governed by and construed according to the laws of the State of
Nebraska.
This Plan has been adopted effective January 1, 1988.
FIRST AMENDMENT TO THE
CONAGRA NONQUALIFIED PENSION PLAN
(Effective May 11, 1989)
Effective upon ConAgra Board of Director approval of this
amendment, the ConAgra Nonqualified Pension Plan shall be amended
as follows:
ARTICLE I
Paragraph 2.1 of the Plan shall be amended to read, as
follows:
"2.1 "Change of Control" shall mean:
(i) The acquisition (other than from ConAgra) by any
person, entity or "group," within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934
(the "Exchange Act"), (excluding, for this purpose, ConAgra or
its subsidiaries, or any employee benefit plan of ConAgra or
its subsidiaries which acquires beneficial ownership of voting
securities of ConAgra) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of
30% or more of either the then outstanding shares of common
stock or the combined voting power of ConAgra's then
outstanding voting securities entitled to vote generally in
the election of directors; or
(ii) Individuals who, as of the date hereof, constitute
the Board (as of the date hereof the "Incumbent Board") cease
for any reason to constitute at least a majority of the Board,
provided that any person becoming a director subsequent to the
date hereof whose election, or nomination for election by
ConAgra's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board
shall be, for purposes of this Agreement, considered as
through such person were a member of the Incumbent Board; or
(iii) Approval by the stockholders of ConAgra of a
reorganization, merger, consolidation, in each case, with
respect to which persons who were the stockholders of ConAgra
immediately prior to such reorganization, merger or
consolidation do not, immediately thereafter, own more than
50% of the combined voting power entitled to vote generally in
the election of directors of the reorganized, merged or
consolidated company's then outstanding voting securities, or
a liquidation or dissolution of ConAgra or of the sale of all
or substantially all of the assets of ConAgra."
ARTICLE II
Paragraph 2.10 of the Plan is hereby deleted and the
paragraphs thereafter shall be appropriately renumbered.
ARTICLE III
Paragraph 4.4 shall be amended to read, as follows:
"4.4 Change of Control. Notwithstanding any other provisions
of the Plan, upon a Change of Control, any amounts
necessary to immediately fund the benefits vested
hereunder pursuant to the Participants' vesting schedule
under Paragraph 4.5 shall be immediately funded. Such
amounts include all amounts for past service of the
Participant, all amounts for future service of the
Participant that are vested under the applicable schedule
described in Paragraph 4.5 assuming the Participant will
be employed by ConAgra until age 65 and a tax gross-up
payment to the Participant (or the Participant's account)
to reflect the Federal and state income tax effects to
the Participant of the funding under this Paragraph 4.4.
Notwithstanding Paragraph 12 of the Plan, this Paragraph
4.4 may not be amended after the date of a Change of
Control."
ARTICLE IV
In all other respects the Plan is hereby confirmed.
FIRST AMENDMENT TO THE
CONAGRA NONQUALIFIED PENSION PLAN
(Effective May 11, 1989)
Effective upon ConAgra Board of Director approval of this
amendment, the ConAgra Nonqualified Pension Plan shall be amended
as follows:
ARTICLE I
Paragraph 2.1 of the Plan shall be amended to read, as
follows:
"2.1 "Change of Control" shall mean:
(i) The acquisition (other than from ConAgra) by any
person, entity or "group," within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934
(the "Exchange Act"), (excluding, for this purpose, ConAgra or
its subsidiaries, or any employee benefit plan of ConAgra or
its subsidiaries which acquires beneficial ownership of voting
securities of ConAgra) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of
30% or more of either the then outstanding shares of common
stock or the combined voting power of ConAgra's then
outstanding voting securities entitled to vote generally in
the election of directors; or
(ii) Individuals who, as of the date hereof, constitute
the Board (as of the date hereof the "Incumbent Board") cease
for any reason to constitute at least a majority of the Board,
provided that any person becoming a director subsequent to the
date hereof whose election, or nomination for election by
ConAgra's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board
shall be, for purposes of this Agreement, considered as
through such person were a member of the Incumbent Board; or
(iii) Approval by the stockholders of ConAgra of a
reorganization, merger, consolidation, in each case, with
respect to which persons who were the stockholders of ConAgra
immediately prior to such reorganization, merger or
consolidation do not, immediately thereafter, own more than
50% of the combined voting power entitled to vote generally in
the election of directors of the reorganized, merged or
consolidated company's then outstanding voting securities, or
a liquidation or dissolution of ConAgra or of the sale of all
or substantially all of the assets of ConAgra."
ARTICLE II
Paragraph 2.10 of the Plan is hereby deleted and the
paragraphs thereafter shall be appropriately renumbered.
ARTICLE III
Paragraph 4.4 shall be amended to read, as follows:
"4.4 Change of Control. Notwithstanding any other provisions
of the Plan, upon a Change of Control, any amounts
necessary to immediately fund the benefits vested
hereunder pursuant to the Participants' vesting schedule
under Paragraph 4.5 shall be immediately funded. Such
amounts include all amounts for past service of the
Participant, all amounts for future service of the
Participant that are vested under the applicable schedule
described in Paragraph 4.5 assuming the Participant will
be employed by ConAgra until age 65 and a tax gross-up
payment to the Participant (or the Participant's account)
to reflect the Federal and state income tax effects to
the Participant of the funding under this Paragraph 4.4.
Notwithstanding Paragraph 12 of the Plan, this Paragraph
4.4 may not be amended after the date of a Change of
Control."
ARTICLE IV
In all other respects the Plan is hereby confirmed.