Exhibit 2
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CONAGRA, INC.
AND
FIRST TRUST NATIONAL ASSOCIATION
Trustee
Fifth Supplemental Indenture
Dated as of January 26, 1995
Providing for Issuance of 9.35%
Series C Debentures due 2044
in connection with the issuance by
ConAgra Capital, L.C. of its
Series C Cumulative Preferred Securities
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FIFTH SUPPLEMENTAL INDENTURE (the "Supplemental
Indenture"), dated as of January 26, 1995, between CONAGRA,
INC., a Delaware corporation (the "Issuer"), and FIRST TRUST
NATIONAL ASSOCIATION, a national banking corporation (the
"Trustee").
W I T N E S S E T H :
WHEREAS, in accordance with Sections 2.1, 2.3 and
8.1 of the Subordinated Indenture dated as of March 10,
1994, between the Issuer and the Trustee (the "Indenture"),
this Supplemental Indenture is being entered into in order
to establish the form and terms of a series of Securities to
be issued in connection with the issuance by ConAgra
Capital, L.C., an Iowa limited liability company
("Capital"), of its Series C Cumulative Preferred Securities
(the "Series C Preferred Securities");
WHEREAS, the Issuer has duly authorized the
execution and delivery of this Supplemental Indenture to
provide, among other things, for the authentication,
delivery and administration of such series of Securities;
WHEREAS, all things necessary to make this
Supplemental Indenture a valid supplement to Indenture
according to its terms and the terms of the Indenture have
been done;
NOW, THEREFORE:
In consideration of the premises and the purchases
of such series of Securities by the holders thereof, the
Issuer and the Trustee mutually covenant and agree for the
equal and proportionate benefit of the respective holders
from time to time of such series of Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined in the
Indenture. All capitalized terms used herein without
definition shall have the meanings specified in the
Indenture.
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SECTION 1.2 Additional Terms Defined. As used in
this Supplemental Indenture, the additional terms set forth
below shall have the following meanings:
"Additional Interest" shall have the meaning set
forth in Section 2.8 hereof.
"Common Interests" shall mean Common Membership
Interests as defined in the Operating Agreement.
"DTC" shall mean The Depository Trust Company as
initial depositary of the Series C Debentures upon a
Preferred Security Exchange.
"Event of Default" shall (a) prior to a Preferred
Security Exchange, have the meaning set forth in Section
2.12 hereof and (b) on and after a Preferred Security
Exchange, have the meaning set forth in Section 5.1 of the
Indenture.
"Expense Agreement" means the Agreement as to
Expenses and Liabilities dated as of April 20, 1994, between
the Issuer and Capital.
"Guarantee" means the Payment and Guarantee
Agreement dated as of April 20, 1994, executed and delivered
by the Issuer for the benefit of the holders from time to
time of the Series C Preferred Securities and other
Preferred Interests of Capital.
"Managing Members" means HW Nebraska, Inc., a
Nebraska corporation, and CP Nebraska, Inc., a Nebraska
corporation, as managing members of Capital.
"Operating Agreement" means the Limited Liability
Company Operating Agreement dated as of March 11, 1994, by
and among the Managing Members.
"Preferred Interests" means Series Preferred
Membership Interests as defined in the Operating Agreement.
"Preferred Security Exchange" means an exchange of
Series C Debentures for Series C Preferred Securities
pursuant to Section 7 of the Written Action.
"Underwriting Agreement" means the underwriting
agreement dated as of January 26, 1995, among the Issuer,
Capital and Smith Barney Inc. as representative of the
several underwriters named therein.
"Written Action" means the Written Action of the
Managing Members Pursuant to Section 3.02 of the Operating
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Agreement dated January 26, 1995, establishing the terms of
the Series C Preferred Securities.
ARTICLE TWO
ISSUANCE OF SERIES C DEBENTURES
SECTION 2.1 Issuance of Series C Debentures.
There shall be a series of Securities designated "Series C
Debentures due 2044" (the "Series C Debentures") and such
Series C Debentures shall have the terms set forth in this
Article Two in accordance with the provisions of the
Indenture and this Supplemental Indenture.
SECTION 2.2 Limitation on Aggregate Principal
Amount. The aggregate principal amount of the Series C
Debentures which may be authenticated and delivered shall be
limited to $250,000,000.
SECTION 2.3 Maturity of the Series C Debentures.
Subject to the provisions of Sections 2.4 and 2.5, the
entire principal amount of the Series C Debentures shall
become due and payable, together with any accrued and unpaid
interest thereon, including Additional Interest, if any, on
the earlier of (a) February 29, 2044 (subject to the
Issuer's right to exchange the Series C Debentures for new
debentures pursuant to Section 2.6) and (b) the date upon
which Capital shall be dissolved, wound-up or liquidated;
provided that the parenthetical to clause (a) and the
entirety of clause (b) shall be inapplicable on and after
the date of any Preferred Security Exchange.
SECTION 2.4 Mandatory Prepayment of Series C
Debentures upon redemption of Series C Preferred Securities.
Notwithstanding the provisions of Section 2.3, if Capital
redeems the Series C Preferred Securities in accordance with
the terms thereof, the Series C Debentures pertaining to the
Series C Preferred Securities shall become due and payable
in a principal equal to the aggregate stated liquidation
preference of the Series C Preferred Securities so redeemed,
together with any and all accrued interest thereon,
including Additional Interest, if any. Any payment pursuant
to this Section 2.4 shall be made prior to 12:00 noon, New
York time, on the date fixed for such redemption or at such
other time on such earlier date as Capital and the Issuer
shall agree.
SECTION 2.5 Optional Prepayment. Upon not less
than 30 nor more than 60 days' prior notice, the Issuer
shall have the right to prepay the Series C Debentures
relating to the Series C Preferred Securities (together with
any accrued but unpaid interest, including Additional
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Interest, if any, on the portion being prepaid), without
premium or penalty,
(i) in whole or in part, as the case may be, at
any time on or after February 29, 2000; and
(ii) in whole at any time if the Issuer and
Capital have been advised by independent nationally
recognized legal counsel that, as a result of any
change after January 26, 1995 in United States law
(including the enactment or imminent enactment of any
legislation, the publication of any judicial decisions
or regulatory rulings or a change in the official
position or in the interpretation of law or
regulations), there exists more than an insubstantial
risk that the Issuer will be precluded from deducting
the interest on the Series C Debentures for federal
income tax purposes even if the Series C Preferred
Securities are exchanged for the Series C Debentures
pursuant to a Preferred Security Exchange.
SECTION 2.6 Exchange of Series C Debentures for
New Debentures. Notwithstanding the provisions of Section
2.3, prior to a Preferred Security Exchange, in lieu of
repaying the Series C Debentures relating to the Series C
Preferred Securities when due, the Issuer may elect to
exchange such Series C Debentures for new debentures with an
equal aggregate principal amount issued under the Indenture
with terms substantially identical to the Series C
Debentures; provided that the Issuer may not so elect to
exchange any Series C Debentures, unless at the time of such
exchange Capital owns all of the Series C Debentures and, as
determined in the judgment of the Managing Members and
Capital's financial advisor (selected by the Managing
Members and who shall be unaffiliated with the Issuer and
shall be among the 30 largest investment banking firms,
measured by total capital, in the United States at the time
of such exchange), (a) the Issuer is not bankrupt, insolvent
or in liquidation, (b) no Event of Default or event that
with the giving of notice or the passage of time would
constitute an Event of Default on any Securities pertaining
to Preferred Interests of any series, has occurred and is
continuing, (c) the Issuer has made timely payments on the
Series C Debentures for the immediately preceding 18 months,
(d) Capital is not in arrears on payments of distributions
on the Series C Preferred Securities, (e) there is then no
present reason to believe the Issuer will be unable to make
timely payment of principal and interest on such new
debentures, (f) such new debentures are being issued on
terms, and under circumstances, that are consistent with
those which a lender would then require for a loan to an
unrelated party, (g) such new debentures are being issued at
a rate sufficient to provide payments equal to or greater
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than the amount of distributions required under the Series C
Preferred Securities, (h) such debentures are being issued
for a term that is consistent with market circumstances and
the Issuer's financial condition, (i) immediately prior to
issuing such new debentures, the senior unsecured long-term
debt of the Issuer is (or if no such debt is outstanding,
would be) rated not less than BBB (or the equivalent) by
Standard & Poor's Corporation and Baa1 (or the equivalent)
by Moody's Investors Service, Inc. (or if either of such
rating organizations is not then rating the Issuer's senior
unsecured long-term debt, the equivalent of such rating by
any other "nationally recognized statistical rating
organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act of 1933,
as amended) and any subordinated unsecured long-term debt of
the Issuer or, if there is no such debt then outstanding,
the Series C Preferred Securities, are rated not less than BBB-
(or the equivalent) by Standard & Poor's Corporation or
Baa3 (or the equivalent) by Moody's Investors Service, Inc.
or the equivalent of either such rating by any other
"nationally recognized statistical rating organization" and
(j) such new debentures will have a final maturity no later
than the one hundredth anniversary of the issuance of the
Series C Preferred Securities.
SECTION 2.7 Denomination and Interest on the
Series C Debentures. (a) The Series C Debentures shall be
issuable as Registered Securities in denominations of $25
and any multiple thereof.
(b) The Series C Debentures shall bear interest
at a rate equal to 9.35% per annum from February 2, 1995 or
from the most recent Interest Payment Date (as defined
below) to which interest has been paid or provided for on
the Series C Debentures. To the extent allowed by law, the
Issuer will also pay interest on overdue installments of
interest at such rate. The amount of interest payable for
any full monthly interest period shall be computed on the
basis of twelve 30-day months and a 360-day year and, for
any period shorter than a full monthly interest period,
shall be computed on the basis of the actual number of days
elapsed in such period. Such interest shall be payable
monthly on the last day of each calendar month (an "Interest
Payment Date") commencing on February 28, 1995 to the holder
or holders of the Series C Debenture on the relevant record
date (each, a "Record Date"), which shall be one Business
Day prior to the relevant Interest Payment Date. If
Interest Payment Date is not a Business Day, then payment of
the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay)
except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately
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preceding Business Day (and the Record Date for such
Interest Payment Date shall be one Business Day prior to the
date on which payment is to be made), in each case with the
same force and effect as if made on such date.
SECTION 2.8 Additional Interest. If at any time
following the issuance of the Series C Preferred Securities
and prior to a Preferred Security Exchange, Capital shall be
required to pay, with respect to its income derived from the
interest payments on the Series C Debentures relating to the
Series C Preferred Securities, any amounts, for or on
account of any taxes, duties, assessments or governmental
charges of whatever nature imposed by the United States or
any other taxing authority, then, in any such case, the
Issuer will pay as interest such additional amounts
("Additional Interest") as may be necessary in order that
the net amounts received and retained by Capital after the
payment of such taxes, duties, assessments or governmental
charges shall result in Capital's having such funds as it
would have had in the absence of the payment of such taxes,
duties, assessments or governmental charges.
SECTION 2.9 Extension of Interest Period.
Notwithstanding the provisions of Section 2.7 hereof, the
Issuer shall have the right at any time or times during the
term of the Series C Debentures, so long as the Issuer is
not in default in the payment of interest under any of the
Securities, to extend the interest payment period for the
Series C Debentures up to 18 months; provided that at the
end of such period the Issuer shall pay all installments of
interest then accrued and unpaid (together with interest
thereon at the rate specified for the Series C Debentures to
the extent permitted by applicable law); provided further
that, during any such extended interest period, neither the
Issuer nor any majority owned subsidiary of the Issuer shall
pay or declare any dividends on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any
of its capital stock (other than payments to redeem common
share purchase rights under the Issuer's shareholder rights
plan dated July 10, 1986, as amended, or to declare a
dividend of similar share purchase rights in the future);
and provided furtherthat any such extended interest period
may only be selected with respect to the Series C Debentures
if an extended interest period of identical length is
simultaneously selected for all Securities. Prior to the
termination of any such extended interest payment period for
the Series C Debentures, the Issuer may further extend the
interest payment period for the Series C Debentures;
provided that such extended interest payment period for the
Series C Debentures together with all such further
extensions thereof, may not exceed 18 months; and provided
further that any such further extended interest period may
only be selected with respect to the Series C Debentures if
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a further extended interest period of identical length is
simultaneously selected for all Securities. Following the
termination of any extended interest payment period, if the
Issuer has paid all accrued and unpaid interest required by
the Series C Debentures for such period, then the Issuer
shall have the right to again extend the interest payment
period up to 18 months as herein described. Prior to any
Preferred Security Exchange, the Issuer shall give Capital
notice of its selection of any extended interest payment
period one Business Day prior to the earlier of (i) the date
Capital declares the related distribution, if any, to
holders of the Common Interests or (ii) the date Capital is
required to give notice of the record or payment date of
such related distribution to the New York Stock Exchange or
other applicable self-regulatory organization or to holders
of the Series C Preferred Securities, but in any event not
less than two Business Days prior to such record date; the
Issuer shall cause Capital to give such notice of the
Issuer's selection of any extended interest payment period
to all holders of Such Series C Preferred Securities. After
any Preferred Security Exchange, the Issuer shall give the
Holders of the Series C Debentures notice of its selection
of any extended interest payment prior to the date it is
required to give notice of the record of payment date of
such interest payment to the New York Stock Exchange or
other applicable self-regulatory organization, but in any
event not less than two Business Days prior to such Record
Date.
SECTION 2.10 Set-off. Notwithstanding anything
to the contrary herein, prior to any Preferred Security
Exchange the Issuer shall have the right to set off any
payment it is otherwise required to make hereunder with and
to the extent the Issuer has theretofore made, or is
concurrently on the date of such payment making, a payment
under the Guarantee.
SECTION 2.11 Certain Covenants. (a) So long as
the Series C Preferred Securities remain outstanding,
neither the Issuer nor any majority-owned subsidiary of the
Issuer shall declare or pay any dividend on, or redeem,
purchase, acquire or make a liquidation payment with respect
to, any of the Issuer's capital stock or make any guarantee
payments with respect to the foregoing (other than payments
under the Guarantee, payments to redeem common share
purchase rights under the Issuer's shareholder rights plan
dated July 10, 1986, as amended, or the declaration of a
dividend of similar share purchase rights in the future) if
at such time the Issuer is in default with respect to its
payment obligations under the Guarantee or the Expense
Agreement or there shall have occurred an Event of Default
or any event that, with the giving of notice or the lapse of
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time or both, would constitute an Event of Default under the
Securities.
(b) So long as the Series C Preferred Securities
remain outstanding, the Issuer shall (i) not cause or permit
any Common Interests to be transferred, (ii) maintain direct
or indirect ownership of all outstanding securities in
Capital other than the Preferred Interests of any series and
any other securities permitted to be issued by Capital that
would not cause Capital to become an "investment company"
under the Investment Company Act of 1940, as amended, (iii)
cause at least 21% of the total value of Capital and at
least 21% of all interests in the capital, income, gain,
loss, deduction and credit of Capital to be represented by
Common Interests, (iv) not voluntarily dissolve, windup or
liquidate Capital or either of the Managing Members, (v)
cause HW Nebraska, Inc. and CP Nebraska, Inc. to remain the
Managing Members of Capital and timely perform all of their
respective duties as Managing Members of Capital, and (vi)
use reasonable efforts to cause Capital to remain a limited
liability company and otherwise continue to be treated as a
partnership for U.S. federal income tax purposes; provided
that the Issuer may permit Capital, solely for the purpose
of changing its domicile or avoiding tax consequences
adverse to the Issuer, Capital or holders of Series C
Preferred Securities, to consolidate or merge with or into a
limited liability company or a limited partnership formed
under the laws of any state of the United States of America;
provided that (1) such successor limited liability company
or limited partnership (x) expressly assumes all of the
obligations of Capital under the Series C Preferred
Securities and other series of Preferred Interests then
outstanding or (y) substitutes for the Series C Preferred
Securities and any series of Preferred Interests then
outstanding other securities having substantially the same
terms as the Series C Preferred Securities and any such
Preferred Interests (the "Successor Securities") so long as
the Successor Securities rank, with respect to participation
in the profits and assets of such successor entity, at least
as senior as the Series C Preferred Securities and any such
Preferred Interests rank, respectively, with respect to
participation in the profits and assets of Capital, (2) the
Issuer expressly acknowledges such successor as the holder
of all of the Series C Debentures and other series of
debentures issued under the Indenture then outstanding,
(3) such merger or consolidation does not cause any series
of Preferred Interests then outstanding to be delisted by
any national securities exchange or other organization on
which such series is then listed, (4) the holders of Series
C Preferred Securities and any such Preferred Interests do
not suffer any adverse tax consequences as a result of such
merger or consolidation, (5) such merger or consolidation
does not cause any Preferred Interests to be downgraded by
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any "nationally recognized statistical rating organization,"
as that term is defined by the Securities and Exchange
Commission for purposes of Rule 436(g)(2) under the
Securities Act of 1933, as amended, and (6) following such
merger or consolidation, neither the Issuer nor such
successor limited liability company or limited partnership
will be an "investment company" for purposes of the
Investment Company Act of 1940, as amended.
(c) So long as the Series C Preferred
Securities remain outstanding, the Issuer shall not
consolidate with or merge into any other Person or sell its
property and assets as, or substantially as, an entirety to
any Person and shall not permit any Person to merge into or
consolidate with the Issuer unless (i) in case the Issuer
shall consolidate with or merge into another Person or sell
its properties and assets as, or substantially as, an
entirety to any Person, the Person formed by such
consolidation or into which the Issuer is merged or the
Person which purchases the properties and assets of the
Issuer as, or substantially, as an entirety shall be a
corporation, partnership or trust, shall be organized and
validly existing under the laws of the United States of
America, any State or the District of Columbia, and shall
expressly assume the Issuer's obligations under the
Indenture, this Supplemental Indenture and the Series C
Debentures and (ii) immediately after giving effect to the
transaction no Event of Default shall have occurred and be
continuing.
(d) So long as the Series C Preferred
Securities remain outstanding, the provisions of Sections
2.11(b) and (c) shall remain in full force and effect
notwithstanding satisfaction and discharge of the Indenture
pursuant to Section 10.1 thereof.
SECTION 2.12 Events of Default; Remedies. Prior
to any Preferred Security Exchange, "Event of Default" means
any one of the following events:
(a) failure to pay when due any interest under
any Securities, including any Additional Interest, and such
failure shall continue for a period of 30 days (whether or
not payment is prohibited by the provisions contained in
Article Thirteen of the Indenture or otherwise); provided
that a valid extension of the interest payment period by the
Issuer shall not constitute a default in the payment of
interest for this purpose;
(b) failure to pay when due any principal under
any Securities (whether or not payment is prohibited by the
provisions contained in Article Thirteen of the Indenture or
otherwise);
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(c) failure on the part of the Issuer duly to
observe or perform any other covenant or agreement on the
part of the Issuer in respect of the Securities (other than
a covenant or warranty in respect of the Series C Debentures
a default in the performance or breach of which is elsewhere
in this Section specifically dealt with) or contained in the
Indenture, this Supplemental Indenture or the Series C
Debentures, and continuance of such default or breach for a
period of 90 days after there has been given, by registered
or certified mail, to the Issuer by the Trustee or any
Holder hereof, a written notice specifying such failure or
breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder;
(d) the dissolution, or winding up or liquidation
of Capital;
(e) a court having jurisdiction in the premises
shall enter a decree or order for relief in respect of the
Issuer or any Consolidated Subsidiary in an involuntary case
under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Issuer or any subsidiary or for any
substantial part of its property or ordering the winding up
or liquidation of its affairs, and such decree or order
shall remain unstayed and in effect for a period of 60
consecutive days; or
(f) the Issuer or any Consolidated Subsidiary
shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter
in effect, or consent to the entry of an order for relief in
an involuntary case under any such law, or consent to the
appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Issuer or any Consolidated
Subsidiary or for any substantial part of its property, or
make any general assignment for the benefit of creditors.
If an Event of Default shall occur and be
continuing, then Capital will have the right (i) to declare
the principal of and the interest on the Series C Debentures
(including any Additional Interest and any interest subject
to an extension election) and any other amounts payable
under the Series C Debentures to be forthwith due and
payable, whereupon the same shall become and be forthwith
due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly
waived, anything in the Indenture, this Supplemental
Indenture or the Series C Debentures to the contrary
notwithstanding and (ii) to enforce its other rights
hereunder and thereunder. Capital may not accelerate the
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principal amount of any Series C Debenture unless the
principal amount of all Securities is accelerated.
If an Event of Default specified in clauses (d),
(e) or (f) above shall have occurred, the principal of and
interest on the Series C Debentures shall thereupon and
concurrently become due and payable without presentment,
demand, protest or other notice of any kind, all of which
are hereby expressly waived, anything in the Indenture, this
Supplemental Indenture or the Series C Debentures to the
contrary notwithstanding.
If an Event of Default specified in clause (a) or
(b) above shall have occurred and be continuing and Capital
shall have failed to pay any distributions on the Series C
Preferred Securities when due (other than as a result of any
valid extension of the interest payment period by the Issuer
for the Series C Debentures) or to pay any portion of the
redemption price of the Series C Preferred Securities called
for redemption, then any Holder of Series C Preferred
Securities may, as set forth in the terms of the Series C
Preferred Securities, enforce directly against the Issuer
Capital's right hereunder to receive payments of principal
and interest on the Series C Debentures relating to such
Series C Preferred Interests but only in an amount
sufficient to enable Capital to pay such distributions or
redemption price.
The Issuer expressly acknowledges that under the
terms of Section 3.02(f) of the Operating Agreement and
Section 9 of the Written Action, the holders of the
outstanding Series C Preferred Securities together with the
holder of other Preferred Interests shall in certain
circumstances have the right to appoint a trustee, which
trustee shall be authorized to exercise Capital's creditor
rights under the Indenture, this Supplemental Indenture and
the Series C Debentures and the Issuer agrees to cooperate
with such trustee; provided that any trustee so appointed
shall vacate office immediately in accordance with Section
3.02(f) of the Operating Agreement if all Events of Default
giving rise to such right of appointment have been cured by
the Issuer.
Except as provided in this Section 2.12, Holders
of Series C Preferred Interests shall have no rights to
enforce any obligations of the Issuer under the Indenture,
this Supplemental Indenture or the Series C Debentures.
On and after a Preferred Security Exchange, the
provisions of Article Five of the Indenture, including
without limitation the definition of an "Event of Default",
shall apply to the Series C Debentures and this Section 2.12
shall be of no further force or effect.
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SECTION 2.13 Book-Entry-Only Issuance; The
Depository Trust Company. On and after a Preferred Security
Exchange, the provisions of this Section 2.13 shall apply.
(a) DTC, New York, New York, will act as
securities depository for the Series C Debentures. The
Series C Debentures will be issued as one or more global
certificates only as fully-registered securities registered
in the name of Cede & Co. (DTC's nominee). Such global
certificates shall bear a legend in the following form:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL,
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS DEBENTURE IS IN GLOBAL FORM WITHIN THE
MEANING OF THE INDENTURE AND SUPPLEMENTAL INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF DTC OR A NOMINEE OF DTC. UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR DEBENTURES IN
CERTIFICATED FORM, THIS DEBENTURE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF
DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
or any other legend then customary for securities of a
similar nature held by DTC.
(b) Redemption notices shall be sent to Cede &
Co. If less than all of the Series C Debentures are being
redeemed, such securities shall be redeemed in accordance
with DTC's then current practice.
(c) DTC may discontinue providing its services as
securities depository with respect to the Series C
Debentures by giving reasonable notice to the Issuer as
provided in the agreement between the Issuer and DTC. Under
such circumstances, if a successor securities depository is
not obtained, the Issuer at its expense shall cause
certificates for Series C Debentures to be printed and
delivered as promptly as practicable.
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SECTION 2.14 Listing on the New York Stock
Exchange. Following a Preferred Security Exchange, the
Issuer will use its best efforts to have the Series C
Debentures listed on the same exchange on which the Series C
Preferred Securities are listed.
ARTICLE THREE
MISCELLANEOUS
SECTION 3.1 Notices. All notices hereunder shall
be deemed given by a party hereto if in writing and
delivered personally or by telegram or facsimile
transmission or by registered or certified mail (return
receipt requested) to the other party at the following
address for such party (or at such other address as shall be
specified by like notice):
If to Capital, to:
ConAgra Capital, L.C.
c/o ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Vice President-Finance
If to the Issuer, to:
ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Vice President-Finance
Any notice given by mail or telegram or facsimile
transmission shall be effective when received.
SECTION 3.2 Assignment; Binding Effect. The
Issuer shall have the right at all times to assign any of
its rights or obligations under the Indenture, this
Supplemental Indenture and the Series C Debentures to a
direct or indirect wholly owned subsidiary of the Issuer
(other than to any Managing Member); provided that, in the
event of any such assignment, the Issuer shall remain
jointly and severally liable for all such obligations; and
provided further that in the event of an assignment prior to
a Preferred Security Exchange the Issuer shall have received
an opinion of nationally recognized tax counsel that such
assignment shall not constitute a taxable event of the
holders of Series C Preferred Securities for federal income
tax purposes. Except as otherwise provided in this
Supplemental Indenture, Capital may not assign any of its
rights under the Series C Debentures without the prior
written consent of the Issuer. Subject to the foregoing,
13
the Indenture, this Supplemental Indenture and the Series C
Debentures shall be binding upon and inure to the benefit of
the Issuer, Capital, the Holders from time to time of the
Series C Debentures and their respective successors and
assigns. Except as provided in this Section 3.2 or
elsewhere in this Supplemental Indenture, none of the
Indenture, this Supplemental Indenture nor the Series C
Debentures may be assigned by either the Issuer or Capital
and any assignment by the Issuer or Capital in contravention
of this Section 3.2 shall be null and void.
SECTION 3.3 Governing Law. THIS SUPPLEMENTAL
INDENTURE AND THE SERIES C DEBENTURES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
SECTION 3.4 Counterparts. This Supplemental
Indenture may be executed in counterparts, each of which
shall be deemed an original, but all of which taken together
shall constitute one and the same instrument.
Section 3.5 Amendments. This Supplemental
Indenture may be amended as set forth in Article Eight of
the Indenture. Notwithstanding the foregoing, so long as
any Series C Preferred Securities shall remain outstanding,
(i) no amendment to the provisions of the Indenture, this
Supplemental Indenture or the Series C Debentures shall be
made that adversely affects the holders of any Series C
Preferred Securities then outstanding, or terminate the
Indenture, this Supplemental Indenture or the Series C
Debentures, without in each case the prior consent of
holders of 66-2/3% in stated liquidation preference of all
Series C Preferred Securities then outstanding, unless and
until all Securities and all accrued and unpaid interest
thereon (including Additional Interest, if any) shall have
been paid in full and (ii) without the prior consent of
holders of 100% in stated liquidation preference of all
Series C Preferred Securities then outstanding, no amendment
shall be made to the provisions of this clause (ii) of
Section 3.5 or to (a) extend the stated maturity of the
principal of any Debenture, or reduce the principal amount
thereof or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption
thereof or change the currency in which the principal
thereof or interest thereon is payable or impair the right
to institute suit for the enforcement of any payment on any
Debenture when due or (b) reduce the aforesaid percentage in
principal amount of Debentures of any series the consent of
the holders of which is required for any such modification.
Any required consent of holders of Series C Preferred
Securities pursuant to this Section 3.5 shall be in writing
or shall be obtained at a meeting of Series C Preferred
14
Securities holders convened in the manner specified in
3.02(e) of the Operating Agreement.
Section 3.6 Waivers. Capital may not waive
compliance or waive any default in compliance by the Issuer
of any covenant or other term in the Indenture, this
Supplemental Indenture or the Series C Debentures without
the approval of the same percentage of holders of Series C
Preferred Securities, obtained in the same manner, as would
be required for an amendment of the Indenture, this
Supplemental Indenture or the Series C Debentures to the
same effect; provided that if no approval would be required
for any such amendment, then Capital may waive such
compliance or default in any manner that the parties shall
agree.
Section 3.7 Third Party Beneficiaries. The
Issuer hereby acknowledges that the holders from time to
time of the Series C Preferred Securities shall expressly be
third party beneficiaries of this Supplemental Indenture.
Section 3.8 Amendment to Indenture. Pursuant to
Section 8.1 of the Indenture, Section 8.2 of the Indenture
is hereby amended for purposes of any and all Securities,
including without limitation the Series C Debentures, issued
under the Indenture by substituting the phrase "of not less
than 66-2/3%" for the phrase "of not less than a majority"
in the first clause of such Section 8.2.
IN WITNESS WHEREOF, the parties hereto have caused
this Supplemental Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and
attested, all as of the date and year first above written.
CONAGRA, INC.
By: /s/ J.P. O'Donnell
Name: J. P. O'Donnell
Title: Vice President,
Finance
and Treasurer
[SEAL]
Attest: /s/ Sue E. Badberg
Name: Sue E. Badberg
Title: Assistant Secretary
FIRST TRUST NATIONAL
15
ASSOCIATION, as Trustee
By: /s/ David H. Bluhm
Name: David H. Bluhm
Title: Vice President
[SEAL]
Attest: /s/ K. Barrett
Name: Kathe Barrett
Title: Assoc. Admin.
16
Exhibit A
[Form of Face of Series C Debenture]
No.
ConAgra, Inc.
Series C Debentures due 2044
ConAgra, Inc., a Delaware corporation (the
"Issuer"), for value received, hereby promises to pay to
ConAgra Capital, L.C. or registered assigns, at the office
or agency of the Issuer in The City of New York, the
principal sum of $250,000,000 Dollars on February 29, 2044,
in such coin or currency of the United States of America as
at the time of payment shall be legal tender for the payment
of public and private debts, and to pay interest, at a rate
equal to 9.35% per annum accruing from February 2, 1995 or
from the most recent Interest Payment Date (as defined
below) to which interest has been paid or provided for on
the Series C Debentures. To the extent allowed by law, the
Issuer will also pay interest on overdue installments of
interest at such rate. The amount of interest payable for
any full monthly interest period shall be computed on the
basis of twelve 30-day months and a 360-day year and, for
any period shorter than a full monthly interest period,
shall be computed on the basis of the actual number of days
elapsed in such period. Such interest shall be payable
monthly on the last day (an "Interest Payment Date") of each
calendar month, commencing on February 28, 1995 to the
holder or holders of this Debenture on the relevant record
date (each, a "Record Date"), which shall be one Business
Day prior to the relevant Interest Payment Date. If
Interest Payment Date is not a Business Day, then payment of
the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay)
except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately
preceding Business Day (and the Record Date for such
Interest Payment Date shall be one Business Day prior to the
date on which payment is to be made), in each case with the
same force and effect as if made on such date. If at any
time following the issuance of the Common Securities,
Capital shall be required to pay, with respect to its income
derived from the interest payments on the Series C
Debentures, any amounts, for or on account of any taxes,
duties, assessments or governmental charges of whatever
nature imposed by the United States or any other taxing
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authority, then, in any such case, the Issuer will pay as
interest such additional amounts ("Additional Interest") as
may be necessary in order that the net amounts received and
retained by Capital after the payment of such taxes, duties,
assessments or governmental charges shall result in
Capital's having such funds as it would have had in the
absence of the payment of such taxes, duties, assessments or
governmental charges. Notwithstanding the forgoing, the
Issuer shall have the right at any time or times during the
term of the Series C Debentures, so long as the Issuer is
not in default in the payment of interest under any of the
Securities, to extend the interest payment period for the
Series C Debentures up to 18 months; provided that at the
end of such period the Issuer shall pay all installments of
interest then accrued and unpaid (together with interest
thereon at the rate specified for the Series C Debentures to
the extent permitted by applicable law); provided further
that, during any such extended interest period, neither the
Issuer nor any majority owned subsidiary of the Issuer shall
pay or declare any dividends on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any
of its capital stock (other than payments to redeem common
share purchase rights under the Issuer's shareholder rights
plan dated July 10, 1986, as amended, or to declare a
dividend of similar share purchase rights in the future);
and provided further that any such extended interest period
may only be selected with respect to the Series C Debentures
if an extended interest period of identical length is
simultaneously selected for all Securities. Prior to the
termination of any such extended interest payment period for
the Series C Debentures, the Issuer may further extend the
interest payment period for the Series C Debentures;
provided that such extended interest payment period for the
Series C Debentures together with all such further
extensions thereof, may not exceed 18 months; and provided
further that any such further extended interest period may
only be selected with respect to the Series C Debentures if
a further extended interest period of identical length is
simultaneously selected for all Securities. Following the
termination of any extended interest payment period, if the
Issuer has paid all accrued and unpaid interest required by
the Securities for such period, then the Issuer shall have
the right to again extend the interest payment period up to
18 months as herein described. Prior to any Preferred
Security Exchange, the Issuer shall give Capital notice of
its selection of any extended interest payment period one
Business Day prior to the earlier of (i) the date Capital
declares the related distribution, if any, to the holders of
the Series C Preferred Securities or (ii) the date Capital
is required to give notice of the record or payment date of
such related distribution, if any, to the holders of the
Series C Preferred Securities to the New York Stock Exchange
or other applicable self-regulatory organization or to
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holders of the Series C Preferred Securities, but in any
event not less than two Business Days prior to such Record
Date; the Issuer shall cause Capital to give such notice of
the Issuer's selection of any extended interest payment
period to all holders of such Series C Preferred Securities.
After any Preferred Security Exchange, the Issuer shall give
the Holders of the Series C Debentures notice of its
selection of any extended interest payment prior to the date
it is required to give notice of the record or payment date
of such interest payment to the New York Stock Exchange or
other applicable self-regulatory organization, but in any
event not less than two Business Days prior to such Record
Date.
Reference is made to the further provisions of
this Debenture set forth on the reverse hereof. Such
further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Debenture shall not be valid or become
obligatory for any purpose until the certificate of
authentication hereon shall have been signed by the Trustee
under the Indenture referred to below.
This Debenture is one of a duly authorized issue
of debentures, notes, bonds or other evidences of
indebtedness of the Issuer (hereinafter called the
"Securities") of the series hereinafter specified, all
issued or to be issued under and pursuant to an indenture
dated as of March 10, 1994 and supplemental indentures
thereto (herein collectively called the "Indenture"), duly
executed and delivered by the Issuer and First Trust
National Association, as Trustee (herein called the
"Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a
description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the
Trustee, the Issuer and the holders of the Securities. The
Securities may be issued in one or more series, which
different series may be issued in various aggregate
principal amounts, may mature at different times, may bear
interest (if any) at different rates, may be subject to
different redemption provisions (if any), may be subject to
different sinking, purchase or analogous funds (if any) and
may otherwise vary as in the Indenture provided. This
Debenture is one of a series designated as the "Series C
Debentures due 2044" (the "Series C Debentures") of the
Issuer, limited in aggregate principal amount to
$250,000,000.
In case an Event of Default with respect to the
Series C Debentures, as defined in the Indenture, shall have
occurred and be continuing, the principal hereof may be
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declared, and upon such declaration shall become, due and
payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the
Issuer and the Trustee, with the consent of the Holders of
not less than 66-2/3% in aggregate principal amount of the
Securities at the time Outstanding (as defined in the
Indenture) of all series to be affected (voting as one
class), evidenced as in the Indenture provided, to execute
supplemental indentures adding any provisions to or changing
in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in
any manner the rights of the Holders of the Securities of
each such series; provided, however, that no such
supplemental indenture shall (i) extend the final maturity
of any Security, or reduce the principal amount thereof or
any premium thereon, or reduce the rate or extend the time
of payment of any interest thereon, or impair or affect the
rights of any Holder to institute suit for the payment
thereof, without the consent of the Holder of each Security
so affected, or (ii) reduce the aforesaid percentage of
Securities, the Holders of which are required to consent to
any such supplemental indenture, without the consent of the
Holder of each Security affected. It is also provided in
the Indenture that, with respect to certain defaults or
Events of Default regarding the Securities of any series,
prior to any declaration accelerating the maturity of such
Securities, the Holders of a majority in aggregate principal
amount Outstanding of the Securities of such series (or, in
the case of certain defaults or Events of Default, all or
certain series of the Securities) may on behalf of the
Holders of all the Securities of such series (or all or
certain series of the Securities, as the case may be) waive
any such past default or Event of Default and its
consequences. The preceding sentence shall not, however,
apply to a continuing default in the payment of the
principal of or premium, if any, or interest on any of the
Securities. Any such consent or waiver by the Holder of
this Debenture (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon
all future Holders and owners of this Debenture and any
Debenture which may be issued in exchange or substitution
herefor, irrespective of whether or not any notation thereof
is made upon this Debenture or such other Debentures.
No reference herein to the Indenture and no
provision of this Debenture or of the Indenture shall alter
or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of and any premium
and interest on this Debenture in the manner, at the
respective times, at the rate and in the coin or currency
herein prescribed.
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The Series C Debentures are issuable in registered
form without coupons in denominations of $25 and any
integral multiple of $25 at the office or agency of the
Issuer in the Borough of Manhattan, The City of New York,
and in the manner and subject to the limitations provided in
the Indenture, but without the payment of any service
charge, Series C Debentures may be exchanged for a like
aggregate principal amount of Series C Debentures of other
authorized denominations.
Upon not less than 30 nor more than 60 days' prior
notice, the Issuer shall have the right to prepay the Series
C Debentures (together with any accrued but unpaid interest,
including Additional Interest, if any, on the portion being
prepaid), without premium or penalty,
(i) in whole or in part, as the case may be, at
any time on or after February 29, 2000; and
(ii) in whole at any time if the Issuer and
Capital have been advised by independent nationally
recognized legal counsel that, as a result of any
change after January 26, 1995 in United States law
(including the enactment or imminent enactment of any
legislation, the publication of any judicial decisions
or regulatory rulings or a change in the official
position or in the interpretation of law or
regulations), there exists more than an insubstantial
risk that the Issuer will be precluded from deducting
the interest on the Series C Debentures for federal
income tax purposes, even if the Series C Preferred
Securities are exchanged for the Series C Debentures
pursuant to a Preferred Security Exchange,
all as further provided in the Indenture.
The Series C Debentures are, to the extent and in
the manner provided in the Indenture, expressly subordinate
and junior in right of payment of all Senior Indebtedness as
provided in the Indenture, and each holder of this
Debenture, by his acceptance hereof, agrees to and shall be
bound by such provisions of the Indenture and authorizes and
directs the Trustee in his behalf to take such action as
appropriate to effectuate such subordination and appoints
the Trustee his attorney-in-fact for any and all such
purposes. The Indenture defines Senior Indebtedness as
obligations (other than non-recourse obligations and the
Securities) of, or guaranteed or assumed by, the Issuer for
borrowed money (including both senior and subordinated
indebtedness for borrowed money (other than the Securities))
or evidenced by bonds, debentures, notes or other similar
instruments, and amendments, renewals, extensions,
modifications and refundings of any such indebtedness or
A-5
obligation, whether existing as of the date hereof or
subsequently incurred by the Issuer.
Upon due presentment for registration of transfer
of this Debenture at the office or agency of the Issuer in
the Borough of Manhattan, The City of New York, a new
Debenture or Debentures of authorized denominations for an
equal aggregate principal amount will be issued to the
transferee in exchange therefor, subject to the limitations
provided in the Indenture, without charge except for any tax
or other governmental charge imposed in connection
therewith.
The Issuer, the Trustee and any authorized agent
of the Issuer or the Trustee may deem and treat the
registered Holder hereof as the absolute owner of this
Debenture (whether or not this Debenture shall be overdue
and notwithstanding any notation of ownership or other
writing hereon), for the purpose of receiving payment of, or
on account of, the principal hereof and premium, if any, and
subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and neither the Issuer
nor the Trustee nor any authorized agent of the Issuer or
the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant
or agreement of the Issuer in the Indenture or any indenture
supplemental thereto or in any Debenture, or because of the
creation of any indebtedness represented thereby, shall be
had against any incorporator, stockholder, officer or
director, as such, of the Issuer or of any successor
corporation, either directly or through the Issuer or any
successor corporation, under any rule of law, statute or
constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and
released by the acceptance hereof and as part of the
consideration for the issue hereof.
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Terms used herein which are defined in the
Indenture shall have the respective meanings assigned
thereto in the Indenture.
Dated: February 2, 1995
ConAgra, Inc.
By______________________________
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series
designated herein referred to in the within-mentioned
Indenture.
First Trust National
Association, as Trustee
By__________________________
Authorized Signatory
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