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 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.
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 30 days nor more than
60 days prior to the meeting; provided, however, that in the event that less
than 40 days' notice or prior public disclosure of the date of the meeting is
given or made to stockholders, notice by the stockholder to be timely must be
received not later than the close of business on the 10th day following the
day on which such notice of the date of the annual meeting was mailed or such
public disclosure was 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
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 30 days nor more than 60 days prior to the meeting;
provided, however, that in the event that less than 40 days notice or prior
public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be received not
later than the close of business on the 10th day following the day on which
such notice of the date of the meeting was mailed or such public disclosure
was 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.
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 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.
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
Office of the President (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 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. Office of the President. ConAgra shall have an Office
of the President, the members of which shall be nominated by the CEO and
elected by the Board of Directors. Each member shall serve as the head of
one or more of ConAgra's major business units. Each member shall carry the
title of "President and Chief Operating Officer" of such business units.
Each member will report to ConAgra's CEO, or the President and Chief
Operating Officer of ConAgra, as may be specified by the CEO, 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.
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.
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 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.
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.
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.