EXHIBIT 10.12
CONAGRA INCENTIVES AND DEFERRED COMPENSATION
CHANGE OF CONTROL PLAN
1. Name and Purpose.
1.1 Name. The name of the plan shall be the ConAgra
Incentives and Deferred Compensation Change of Control Plan
("Plan").
1.2 Purpose. ConAgra has adopted, established and/or entered
into various long term and short-term incentive, bonus and deferred
compensation agreements, programs and plans. Additionally, certain
of such arrangements provide that all or a portion of the payments
and benefits under such arrangements shall be deferred, vested over
future periods and/or paid in ConAgra stock (restricted or
unrestricted). The Board of Directors of ConAgra has determined
that the interests of ConAgra stockholders will best be served by
assuring employees that their incentive, bonus and deferred
compensation payments will remain intact during any event that
could result in a change of control of ConAgra. This Plan is
intended to promote stability among employees in order to serve the
best interests of ConAgra stockholders. Under this Plan, payments,
benefits and deferred compensation under the incentive, bonus,
deferred compensation and similar type arrangements shall be
protected in the event of change of control of ConAgra.
2. Definitions.
The terms used herein shall have the following meanings
unless a different meaning is clearly required by the context:
2.1 "Board" means the Board of Directors of ConAgra.
2.2 "Change of Control" means:
(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.
2.3 "Committee" means the Compensation Committee of the
Board.
2.4 "ConAgra" means ConAgra, Inc., a Delaware Corporation, or
any successor thereto.
2.5 "ConAgra Controlled Group" means the controlled group of
corporations as described in I.R.C. Section 414(b), which
includes ConAgra.
2.6 "Covered Plans" means all incentive, bonus, deferred
compensation and similar type arrangements currently or
subsequently approved by the Committee or pursuant to
authority delegated by the Committee.
2.7 "Effective Date" of this Plan means January 1, 1989.
2.8 "Fiscal Year" means ConAgra's fiscal year. If a Fiscal
Year is referred to with respect to a Covered Plan that
has a year different than ConAgra's fiscal year, in this
instance Fiscal Year shall mean that applicable year.
2.9 "Nondiscretionary Plan" means a Covered Plan under which
the award, the incentive, or the payment for a particular
year is not subject to the discretion of a member of the
ConAgra Controlled Group, i.e., the award or payment is
computed by a formula. A "Discretionary Plan" means any
Covered Plan that is not a Nondiscretionary Plan.
2.10 "Participant" means a person participating in a Covered
Plan.
3. Effect of a Change of Control.
In the event of a Change of Control, the following shall
apply, regardless of any provision of the Covered Plans:
A. All payments, awards and benefits under the Covered Plans
shall be immediately nonforfeitable by the Participants.
This shall include, but not be limited to, any payment,
award or benefit that is deferred and any payment, award
or benefit that is payable in ConAgra stock.
B. Any Participant terminated after a Change of Control, but
prior to the date the Participant would otherwise be
eligible (if the provisions of this Plan did not apply)
to receive an award, payment or benefit under a Covered
Plan shall receive a pro rata award. The pro rata award
shall be based upon the number of days the Participant
was employed by a member of the ConAgra Controlled Group
during the applicable Fiscal Year.
C. The method of, and the factors used in, computing the
awards, benefits and payments under each Covered Plan may
not be changed prior to the Fiscal Year after the Change
of Control. Also, any interest cost or overhead charges
that relate directly or indirectly to the Change of
Control shall be ignored for computing the awards,
benefits and payments under each Covered Plan.
The following is a list of example items that may not be
changed with respect to the Covered Plans. The list is
not intended to be all inclusive, but is merely set forth
for exemplary purposes.
(1) Accounting methods and procedures.
(2) Performance objectives, guidelines and formulae
(individual or group).
(3) Capital charges.
(4) Allocation and formulae methods.
(5) Participants and eligibility.
(6) Payment provisions, e.g., timing of payment and
form of payment, except for the funding provisions
of Paragraph 4, below.
(7) Methods, procedures and formulae for computing
bonus pools.
(8) Sale, disposition or transfer of all, or a
significant portion, of the assets utilized in
achieving the original objectives of a Covered
Plan.
If any changes are made to a Covered Plan before the
Fiscal Year following the Change of Control, each
Participant in a (1) Nondiscretionary Plan shall receive
an award, benefit or payment equal to the maximum award,
benefit or payment available under the applicable Covered
Plan; and (2) Discretionary Plan shall receive an award,
benefit or payment for the Fiscal Year of the Change of
Control which is no less than the dollar amount of the
highest annual award, benefit or payment the Participant
received for any of the preceding three Fiscal Years.
D. No Covered Plan may be terminated prior to the Fiscal
Year following the Change of Control.
4. Funding. The awards, benefits and payments contemplated
under the Covered Plans shall be funded only in accordance with the
provisions of the applicable Covered Plan until a Change of
Control. Upon a Change of Control, the awards, benefits and
payments that are deferred according to the applicable Covered Plan
shall be funded, in one lump sum payment, through a trust. The
transfer shall be made within 60 days following the later of the
date of the Change of Control or the date the award, benefit or
payment is computed under the normal administration of the
applicable Covered Plan. If the deferral under the applicable
Covered Plan is to be made in ConAgra stock, the appropriate number
of shares of ConAgra stock shall be transferred to the trust.
ConAgra shall make up any award, benefit or payment the
Participant does not receive under the trust, e.g., if the funds in
the trust are insufficient to make the payments due to insufficient
earnings in the trust. A separate trust shall be established for
each Participant who is entitled to a deferred award, benefit or
payment. The trustee of such trust shall be a national or state
chartered bank. If funding of the trust is not made within the
sixty day period described in this Paragraph 4, the Participant's
deferred award, benefit or payment shall then be equal to 150%
multiplied by the amount of the deferred award, benefit or payment
the Participant would otherwise receive; provided, however, this
increase is not intended to remove ConAgra's obligation to fund the
trust.
5. Notice of Employees. The Vice President of Human
Resources of ConAgra shall notify the Participants of the
provisions of this Plan.
6. Administration. This Plan shall be administered by the
Committee. A majority vote of the Committee at a meeting at which
a quorum is present, or acts reduced to, or approved in writing by,
a majority of the members of the Committee, shall be the valid acts
of the Committee for purposes of this Plan.
7. Qualified Plans. The Plan shall neither apply to, nor
have any effect on, a ConAgra plan intended to qualify under
Section 401(a) of the Internal Revenue Code of 1986, as amended.
8. Amendment. This Plan may be amended from time to time by
the Board; provided, however, no amendment shall be effective prior
to the beginning of the Fiscal Year following the date the action
is taken to amend this Plan.
9. Termination. This Plan may be terminated by the Board;
provided, however, the Plan may not be terminated prior to the
beginning of the Fiscal Year following the date the action is taken
to terminate this Plan.