EXHIBIT 10.1
CONAGRA FOODS, INC.
NONQUALIFIED PENSION PLAN
AMENDED AND RESTATED
CONAGRA FOODS, INC.
NONQUALIFIED PENSION PLAN
TABLE OF CONTENTS
ARTICLE/SECTION TITLE/SECTION HEADINGS PAGE
I DEFINITIONS AND CONSTRUCTION OF THE PLAN DOCUMENT........1
1.01 Accrued Benefit....................................1
1.02 Affiliated Company.................................1
1.03 Beneficiary........................................1
1.04 Board..............................................1
1.05 Change in Control..................................1
1.06 Code...............................................2
1.07 Committee..........................................2
1.08 Company............................................2
1.09 Employee...........................................2
1.10 Employer...........................................2
1.11 Executive..........................................2
1.12 Lamb-Weston Supplemental Plan......................2
1.13 Participant........................................2
1.14 Pilot..............................................2
1.15 Pilot's Benefits...................................2
1.16 Plan...............................................2
1.17 Plan Administrator.................................2
1.18 Plan Year..........................................2
1.19 Salaried Plan......................................2
1.20 Termination of Service.............................3
1.21 Gender and Number..................................3
1.22 Titles.............................................3
II ELIGIBILITY AND PARTICIPATION............................3
2.01 Eligibility to Participate.........................3
III AMOUNT OF BENEFITS.......................................4
3.01 Amount of Benefits.................................4
IV TIME AND FORM OF PAYMENT.................................8
4.01 Time of Payment....................................8
4.02 Form of Payment....................................8
4.03 Method of Payment..................................9
V BENEFICIARY..............................................9
5.01 Beneficiary Designation............................9
5.02 Proper Beneficiary.................................9
5.03 Minor or Incompetent Beneficiary...................9
VI ADMINISTRATION OF THE PLAN...............................9
6.01 Majority Vote......................................9
6.02 Finality of Determination..........................9
6.03 Certificates and Reports..........................10
6.04 Indemnification and Exculpation...................10
6.05 Expenses..........................................10
VII CLAIMS PROCEDURE........................................10
7.01 Written Claim.....................................10
7.02 Denied Claim......................................10
7.03 Review Procedure..................................11
7.04 Committee Review..................................11
VIII NATURE OF COMPANY'S OBLIGATION..........................11
8.01 Employer's Obligation.............................11
8.02 Creditor Status...................................11
IX MISCELLANEOUS...........................................11
9.01 Written Notice....................................11
9.02 Change of Address.................................12
9.03 Merger, Consolidation or Acquisition..............12
9.04 Amendment and Termination.........................12
9.05 Employment........................................12
9.06 Nontransferability................................12
9.07 Legal Fees........................................12
9.08 Tax Withholding...................................12
9.09 Acceleration of Payment...........................12
9.10 Applicable Law....................................13
9.11 Effective Date.....................................13
APPENDICES: APPENDIX A - BRIP Grandfathered Executives
APPENDIX B - BRIP Grandfathered Supplemental
APPENDIX C - Officers Group (50-50 Plan)
APPENDIX D - Directors Group (40% Plan)
APPENDIX E - National Foods Grandfathered at Age 62
APPENDIX F - National Foods Grandfathered at Age 65
PREAMBLE
The purpose of this Nonqualified Pension Plan is to provide payments of
equivalent value from the general assets of ConAgra Foods, Inc. to those
participants in the ConAgra Foods, Inc. Pension Plan for Salaried Employees
(Salaried Plan) who, due to the application of United States Internal Revenue
Code Sections 415 and 401(a)(17), are precluded from receiving from the assets
of the Salaried Plan all the payments to which they would otherwise be entitled.
The Plan expresses ConAgra Foods' commitment to provide such equivalent payments
and sets forth the method for doing so. This Plan is also intended to provide
additional benefits on an unfunded basis to certain selected management and
highly compensated employees.
ARTICLE I
DEFINITIONS AND CONSTRUCTION OF THE PLAN DOCUMENT
1.01 "Accrued Benefit" means the benefit which is calculated under Section 3.01
of the Salaried Plan.
1.02 "Affiliated Company" means any corporation which is a member of a
controlled group of corporations (as defined in Section 414(b) of the Code)
which includes an Employer; any trade or business (whether or not incorporated)
which is under common control (as defined in Section 414(c) of the Code) with an
Employer; any organization (whether or not incorporated) which is a member of an
affiliated service group (as defined in Section 414(m) of the Code) which
includes an Employer; or any other entity required to be aggregated with an
Employer pursuant to regulations under Section 414(o) of the Code.
1.03 "Beneficiary" means the person or persons or the estate of a Participant
entitled to receive any benefits under this Plan.
1.04 "Board" means the Board of Directors of ConAgra Foods, Inc.
1.05 "Change in Control" means
(a) The acquisition (other than from ConAgra Foods) by any person, entity or
"group," within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934 (the "Exchange Act"), (excluding for this
purpose, ConAgra Foods or its subsidiaries, or any employee benefit plan of
ConAgra Foods or its subsidiaries which acquires beneficial ownership of
voting securities of ConAgra Foods) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of
either the then outstanding shares of common stock or the combined voting
power of ConAgra Foods' then outstanding voting securities entitled to vote
generally in the election of directors, or
(b) Individuals who, as of the date hereof, constitute the Board (as of the
date hereof the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board, provided that any person becoming a director
subsequent to the date hereof whose election, or nomination for election by
ConAgra Foods' shareholders, was approved by a vote of at least a majority
of the directors then comprising the Incumbent Board shall be, for purposes
of this Agreement, considered as though such person were a member of the
Incumbent Board; or
(c) Consummation of a reorganization, merger or consolidation, in each case,
with respect to which persons who were the stockholders of ConAgra Foods
immediately prior to such reorganization, merger or consolidation do not,
immediately thereafter, own more than 50% of the combined voting power
entitled to vote generally in the election of directors of the reorganized,
merged or consolidated company's then outstanding voting securities, or a
liquidation or dissolution of ConAgra Foods or of the sale of all or
substantially all of the assets of ConAgra Foods.
1.06 "Code" means the Internal Revenue Code of 1986, as amended from time to
time.
1.07 "Committee" means the Human Resource Committee of the Board.
1.08 "Company" means ConAgra Foods, Inc.
1.09 "Employee" means an individual employed by an Employer.
1.10 "Employer" means ConAgra Foods, Inc. and any entity which has adopted the
Plan.
1.11 "Executive" means any member of management of an Employer or any highly
compensated employee.
1.12 "Lamb-Weston Supplemental Plan" means the Lamb-Weston Supplemental Plan
which is merged into this Plan, as defined in this Section, effective December
31, 2002. This Plan accepts the obligation for benefits due by the Lamb-Weston
Supplemental Plan for current and former employees and provides additional
accrual of benefits for active Participants as provided in Article III of the
Plan.
1.13 "Participant" means a person who is or was employed by an Employer and who
is eligible for the Plan as defined in Article III.
1.14 "Pilot" means an Employee who functions as a pilot or copilot for ConAgra
Foods' flight operations and is eligible for "Pilot's Benefits" as defined in
Section 3.01(d) of the Plan.
1.15 "Pilot's Benefits" are the benefits provided under the Plan for Pilots
which are defined in Section 3.01(d) of the Plan.
1.16 "Plan" means the ConAgra Foods, Inc. Nonqualified Pension Plan as described
in this instrument and as amended from time to time.
1.17 "Plan Administrator" means the ConAgra Foods Employee Benefits Committee or
such person or persons designated by the Committee from time to time.
1.18 "Plan Year" means the calendar year.
1.19 "Salaried Plan" means the ConAgra Foods, Inc. Pension Plan for Salaried
Employees.
1.20 "Termination of Service" or similar expression means the termination of the
Participant's employment as a regular Employee of any Employer.
1.21 Gender and Number Wherever the context so requires, masculine pronouns
include the feminine and singular words shall include the plural.
1.22 Titles Titles of the Articles of this Plan are included for ease of
reference only and are not to be used for the purpose of construing any portion
or provision of this Plan document.
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.01 Eligibility to Participate
2.01(a) An Employee who has become a participant in the Salaried Plan shall
become eligible to participate in this Plan, provided payment of the
Participant's Accrued Benefit is limited as described in Section 3.01(a) of
this Plan and provided (i) the Employee's most recent date of hire was
prior to June 1, 2001, or (ii) any Employee who has been selected by the
Committee or the Employer to receive a benefit under Section 3.01(a).
2.01(b) An Executive who has been selected by the Committee or the Employer
to receive a benefit under Section 3.01(b) shall be eligible to participate
in the Plan and receive benefits described in said Section 3.01(b).
2.01(c) An Executive who has been selected by the Committee or the Employer
to receive certain benefits under this Plan shall become eligible to
participate in this Plan and receive benefits described in Section 3.01(c)
of this Plan.
2.01(d) A Pilot who is a participant in the Salaried Plan shall become
eligible to participate in the Plan and receive a benefit described in
Section 3.01(d).
2.01(e) Effective January 1, 2003, each Participant in the Lamb-Weston
Supplemental Plan will become a Participant in the Plan and each active
Participant in the Lamb-Weston Supplemental Plan will accrue benefits as
provided in Section 3.01(e).
2.01(f) An Employee who is a participant in the Salaried Plan and is listed
on an Appendix shall become eligible to participate in the Plan and receive
a benefit described in the applicable subsection of Section 3.01.
ARTICLE III
AMOUNT OF BENEFITS
3.01 Amount of Benefits Except as specifically provided in an individual
agreement under Section 3.01(c), the benefits from this Plan complement benefits
payable from the Salaried Plan and are subject to the same eligibility, vesting
provisions and ancillary benefits applicable to the Participant in that Plan.
The amounts defined in this Article III are total benefits. The benefits payable
from the Plan are the total benefits defined in this Article III less benefits
payable to the Participant under Section 4.01 of the Salaried Plan or any other
qualified plan providing pension benefits for the period of employment for which
Credited Service is provided under this Plan. The total benefits for
Participants are as follows:
3.01(a) With respect to any participant in the Salaried Plan whose benefits
from that plan are limited under Internal Revenue Code Section 401(a)(17),
the total benefit is the total Accrued Benefit to which the Participant
would have been entitled under the Salaried Plan formula applicable to the
Participant disregarding any limitation or reduction brought about by the
amendment to Section 401(a)(17) of the Internal Revenue Code contained in
the Omnibus Budget Reconciliation Act of 1993 and effective for plan years
beginning on or after January 1, 1994. For purposes of this section, the
limitation under Code Section 401(a)(17) as indexed and in effect on the
last day of the Plan Year prior to the effective date of the OBRA `93
amendment shall apply and shall be adjusted for cost-of-living increases
concurrently with any adjustment to the current limit under Code Section
401(a)(17) by multiplying the limit applicable under this section by a
fraction the numerator of which is the Code Section 401(a)(17) limit
immediately after the adjustment (disregarding the change in 2002 made by
the Economic Growth and Tax Relief Reconciliation Act of 2001) and the
denominator of which is the Code Section 401(a)(17) limit effective for
plan years beginning in 1994, with the result truncated to the next lower
multiple of $10,000. No further adjustments will be made in the limit after
2002 resulting in the following limits on pay under this paragraph:
-------------------------------- ----------------------------
Year(s)* Limit ($)*
-------------------------------- ----------------------------
1994 235,840
1995 235,840
1996 235,840
1997 250,000
1998 250,000
1999 250,000
2000 260,000
2001 260,000
After 2001 280,000
*For years prior to 1994 the limitation was per IRC 401(a)(17).
3.01(b) With respect to any Executive in the Salaried Plan, the total
benefits to which the Participant would be entitled computed under the
Salaried Plan formula applicable to that Participant disregarding any
reductions, restrictions, or limitations brought about by Code Section 415
or Code Section 401(a)(17).
3.01(c) With respect to any Executive hereof, to the extent that such
Executive has been selected to participate in this Plan pursuant to Section
2.01(c) hereof, the total benefits under this subsection 3.01(c) shall be
such amount as determined by the Board, the Committee, the Employer, or the
Plan Administrator in its sole and absolute discretion. Such payments may
be designated to provide benefits under plan formulas which have been
frozen or which were provided pursuant to plans which were terminated by
the Employer or Affiliated Company or were sponsored by a prior employer or
which are not otherwise provided under a qualified plan maintained by the
Employer or as provided in an agreement specific to the Executive.
3.01(d) A Pilot who terminates employment on or after his 62nd birthday
shall be eligible for Pilot's Benefits under this paragraph. The total
benefit shall be calculated as in 3.01(a) above with no reduction for
commencement of benefits prior to age 65 but with the adjustments in (i),
(ii), and (iii) as follows:
(i) Average Monthly Pay shall be calculated as if the Pilot had attained
age 65 and assuming the Pilot's base pay as of the date of the
calculation continued to the Pilot's age 65,
(ii) Credited Service for purposes of the Plan will be changed to the
Credited Service the Pilot would have earned under the Salaried Plan
had he worked continuously until age 65, and
(iii) A Pilot who has satisfied the plan's eligibility requirements and is
an active Participant at age 62 will be vested in the Pilot's
Benefits, regardless of the Pilot's Vesting Service.
3.01(e) Effective January 1, 2003, each active Participant in the
Lamb-Weston Supplemental Plan on December 31, 2002 will become an active
Participant in the Plan and accrue benefits as provided in this paragraph.
With respect to such participant the total benefit is the total Accrued
Benefit to which the Participant would have been entitled under Supplement
Thirty-two of the Salaried Plan disregarding any limitation or reduction
brought about by the amendment to Section 401(a)(17) of the Internal
Revenue Code contained in the Omnibus Budget Reconciliation Act of 1993 and
effective for plan years beginning on or after January 1, 1994. For
purposes of this section, the limitation under Code Section 401(a)(17) as
indexed and in effect on the last day of the Plan Year prior to the
effective date of the OBRA `93 amendment shall apply and shall be adjusted
for cost-of-living increases. No further adjustments will be made in the
limit after 2002 resulting in the following limits on pay under this
paragraph:
-------------------------------- -----------------------------
Year(s)* Limit ($)*
-------------------------------- -----------------------------
1994 242,280
1995 248,700
1996 255,300
1997 263,440
1998 268,360
1999 272,520
2000 279,660
2001 289,260
After 2001 294,620
*For years prior to 1994 the limitation was per IRC 401(a)(17).
3.01(f) For a participant listed on Appendix A, total benefits under this
subsection 3.01(f) shall be the greater of the amount determined under
3.01(b) above or the amount determined under Supplement Twenty-four Section
3.01(c) of the Salaried Plan calculated based on the following:
(i) Final Average Monthly Earnings is determined as of the date of
calculation and is not limited as required under Code Section
401(a)(17),
(ii) benefits are calculated as if all Credited Service for the participant
under the Plan was Credited Service earned prior to March 1, 1994,
(iii) reduced for early commencement, if applicable, as provided in
Supplement Twenty-four Section 3.03(c), and
(iv) disregarding the eligibility requirements of that section.
3.01(g) For a participant listed on Appendix B, total benefits under this
subsection 3.01(g) shall be the greater of the amount determined under
3.01(a) above or the amount determined under Supplement Twenty-four Section
3.01(c) of the Salaried Plan calculated based on the following:
(i) Final Average Monthly Earnings is determined as of the date of
calculation and is limited as indicated in section 3.01(a) above,
(ii) benefits are calculated as if all Credited Service for the participant
under the Plan was Credited Service earned prior to March 1, 1994,
(iii) reduced for early commencement, if applicable, as provided in
Supplement Twenty-four Section 3.03(c), and
(iv) disregarding the eligibility requirements of that section.
3.01(h) For a participant listed on Appendix C, total benefits under this
subsection 3.01(h) shall be the greatest of (i), (ii) or (iii) below:
(i) the amount determined under 3.01(b) above, or
(ii) the amount determined under Supplement Twenty-five Section 3.01(c) of
the Salaried Plan with the following modifications:
(I) Final Average Monthly Earnings is determined as of the date of
calculation and is not limited as required under Code Section
401(a)(17),
(II) Pay as defined in Section 1.24 of Supplement Twenty-five will be
defined for all years using the definition applicable to periods
before January 1, 1993 and considers severance pay, if any, paid
to the participant as Pay under that Section,
(III) benefits are calculated as if all Credited Service for the
participant under the Plan was Credited Service earned prior to
March 1, 1994,
(IV) reduced for early retirement, if applicable, as provided in
Section 3.03(c) of Supplement Twenty-five, and
(V) disregarding the eligibility requirements of that section.
(iii) the benefit payable under the Hunt-Wesson Foods, Inc. Salaried
Pension Plan (Amended and Restated as of June 30, 1985), in existence
on February 28, 1989 calculated with the following modifications:
(I) Final Average Compensation is not limited as required under Code
Section 401(a)(17),
(II) Compensation considers severance pay, if any, paid to the
participant,
(III) benefits are calculated as if all Credited Service for the
participant under the Plan was Credited Service, and
(IV) disregarding application of any limitations under Code Section
415.
3.01(i) For a participant listed on Appendix D, total benefits under this
subsection 3.01(i) shall be the greater of (i) and (ii) below:
(i) the amount determined under 3.01(a) above, or
(ii) the amount determined under Supplement Twenty-five Section 3.01(c) of
the Salaried Plan with the following modifications:
(I) Final Average Monthly Earnings is determined as of the date of
calculation and is not limited as required under Code Section
401(a)(17),
(II) Pay as defined in Section 1.24 of Supplement Twenty-five will be
defined for all years using the definition applicable to periods
before January 1, 1993 and considers severance pay, if any, paid
to the participant as Pay under that Section,
(III) benefits are calculated as if all Credited Service for the
participant under the Plan was Credited Service earned prior to
March 1, 1994,
(IV) reduced for early retirement, if applicable, as provided in
Section 3.03(c) of Supplement Twenty-five, and
(V) disregarding the eligibility requirements of that section.
3.01(j) For a participant listed on Appendix E who remains continuously
employed by an Affiliated Company after July 31, 1997 and retires from
active employment on or after age 62, the total benefits under this
subsection 3.01(j) shall be the amount determined under Supplement
Twenty-nine Section 3.01(b)(iv) of the Salaried Plan with the following
modifications or clarifications:
(i) Final Average Monthly Earnings is determined as of the date of
calculation, and is limited under Code Section 401(a)(17) as defined
by the Salaried Plan,
(ii) benefits are calculated using the Credited Service at age 62 for the
participant under the Plan and treating that Credited Service as if it
was earned prior to August 1, 1997,
(iii) reduced for early retirement, if applicable, on an actuarial
equivalent basis as defined in Exhibit A of Supplement Twenty-nine and
(iv) disregarding the eligibility requirements of that section.
3.01(k) For a participant listed on Appendix F who remains continuously
employed by an Affiliated Company after July 31, 1997 and retires from
active employment on or after age 65, the total benefits under this
subsection 3.01(k) shall be the amount determined under Supplement
Twenty-nine Section 3.01(b)(iv) of the Salaried Plan with the following
modifications or clarifications:
(i) Final Average Monthly Earnings is determined as of the date of
calculation, and is limited under Code Section 401(a)(17) as defined
by the Salaried Plan,
(ii) benefits are calculated using the Credited Service at age 65 for the
participant under the Plan and treating that Credited Service as if it
was earned prior to August 1, 1997, and
(iii) disregarding the eligibility requirements of that section.
ARTICLE IV
TIME AND FORM OF PAYMENT
4.01 Time of Payment Entitlement to payments under this Plan shall commence at
the same time as payments under the Salaried Plan to which they relate.
4.02 Form of Payment Payment under this Plan pursuant to Article III, except as
provided in individual agreements, shall be made in the form of payment in which
the Participant receives his benefit from the Salaried Plan. Actuarial
equivalency under this Plan shall be determined by those administering this Plan
using the factors used for comparable determinations under the Salaried Plan;
provided, however, for purposes of calculating a lump sum, the discount rate and
mortality assumptions used by the Company for purposes of calculating pension
expense under FAS 87 (or is successor) for this Plan in the year in which the
lump sum is paid will be used.
4.03 Method of Payment All payments hereunder shall be made in cash.
ARTICLE V
BENEFICIARY
5.01 Beneficiary Designation A Participant may designate his Beneficiary to
receive benefits under the Plan by completing the appropriate form provided by
the Plan Administrator. Any change of Beneficiary must satisfy all requirements
for designation of a Beneficiary.
5.02 Proper Beneficiary If the Company has any doubt as to the proper
Beneficiary to receive payments hereunder, the Company shall have the right to
withhold such payments until the matter is finally adjudicated. However, any
payment made by the Company, in good faith and in accordance with this Plan,
shall fully discharge the Company and the Plan Administrator from all further
obligations with respect to that payment.
5.03 Minor or Incompetent Beneficiary In making any payments to or for the
benefit of any minor or an incompetent Beneficiary, the Company, in its sole and
absolute discretion, may (a) make a distribution to a legal or natural guardian
or other relative of a minor or court appointed committee of such incompetent;
or (b) make a payment to any adult with whom the minor or incompetent
temporarily or permanently resides. The receipt by a guardian, committee,
relative or other person shall be a complete discharge to the Company. Neither
the Plan Administrator nor the Company shall have any responsibility to see to
the proper application of any payments so made.
ARTICLE VI
ADMINISTRATION OF THE PLAN
6.01 Majority Vote All resolutions or other actions taken by the Committee shall
be by vote of a majority of those present at a meeting at which a majority of
the members are present, or in writing by all the members, at the time in
office, if they act without a meeting.
6.02 Finality of Determination Subject to the Plan, the Committee or Plan
Administrator shall, from time to time, establish rules, forms and procedures
for the administration of the Plan. Except as herein otherwise expressly
provided, the Committee and Plan Administrator shall have full and absolute
discretion to (i) construe and interpret the Plan, (ii) decide all questions
arising with respect to the Plan, including but not limited to, eligibility to
participate in the Plan, and (iii) determine the amount, manner and time of
payment of any benefits to any Participant or Beneficiary. The respective
decisions, actions and records of the Committee and Plan Administrator shall be
conclusive and binding upon the Company and all persons having or claiming to
have any right or interest in or under the Plan.
6.03 Certificates and Reports The members of the Committee, the Plan
Administrator and the officers and directors of the Company shall be entitled to
rely on all certificates, opinions, and reports made by any duly appointed
accountants and consultants, and on all opinions given by any duly appointed
legal counsel, which legal counsel may be counsel for the Company.
6.04 Indemnification and Exculpation The Company shall indemnify and hold
harmless each member of the Committee, the Plan Administrator and any person
acting on behalf of or pursuant to appointment by the Plan Administrator
(hereinafter referred to as "designee") in connection with the administration of
the Plan against any and all expenses and liabilities arising out of his
membership on the Committee or administration of the Plan or any action or
failure to act by the Committee, Plan Administrator, any member of the Committee
or any designee, except if such action or failure to act constitutes gross
negligence or willful misconduct. Expenses against which a member of the
Committee, the Plan Administrator or any designee shall be indemnified hereunder
shall include, without limitation, the amount of any settlement or judgment,
costs, counsel fees, and related charges reasonably incurred in connection with
a claim asserted, or a proceeding brought or settlement thereof. The foregoing
rights of indemnification shall be in addition to any other rights to which the
any such member of the Committee, Plan Administrator or designee may be entitled
as a matter of law.
6.05 Expenses The expenses of administering the Plan shall be borne by the
Company.
ARTICLE VII
CLAIMS PROCEDURE
7.01 Written Claim Benefits shall be paid in accordance with the provisions of
this Plan. The Participant, or a designated Beneficiary or any other person
claiming through the Participant, shall make a written request for benefits
under this Plan. This written claim shall be mailed or delivered to the Plan
Administrator. Such claim shall be reviewed by the Plan Administrator or his
delegate.
7.02 Denied Claim If the claim is denied, in full or in part, the Plan
Administrator shall provide a written notice within ninety (90) days setting
forth the specific reasons for denial and any additional material or information
necessary to perfect the claim and an explanation of why such material or
information is necessary and appropriate information and explanation of the
steps to be taken if a review of the denial is desired.
7.03 Review Procedure If the claim is denied and a review is desired, the
Participant (or Beneficiary) shall notify the Plan Administrator, in writing,
within sixty (60) days (a claim shall be deemed denied if the Plan Administrator
does not take any action within the aforesaid ninety (90) day period) after
receipt of the written notice of denial. In requesting a review, the Participant
or his Beneficiary may request a review of the Plan document or other pertinent
documents with regard to the employee benefit plan created under this agreement,
may submit any written issues and comments, may request an extension of time for
such written submission of issues and comments and may request that a hearing be
held, but the decision to hold a hearing shall be within the sole discretion of
the Committee.
7.04 Committee Review The decision on the review of the denied claim shall be
rendered by the Committee within sixty (60) days after the receipt of the
request for review (if no hearing is held) or within sixty (60) days after the
hearing if one is held. The decision shall be written and shall state the
specific reasons for the decision including reference to the specific provisions
of this Plan on which the decision is based.
ARTICLE VIII
NATURE OF COMPANY'S OBLIGATION
8.01 Employer's Obligation Each Employer's payment obligations in connection
with the benefits under this Plan shall be an unfunded and unsecured promise to
pay the benefit due in accordance with the Plan. No Employer shall be obligated
under any circumstances to fund its financial obligations under this Plan;
provided, however, that each Employer may establish a trust and contribute
assets to the trust for the purpose of satisfying its obligations under the
Plan. An Employer's obligations hereunder shall be discharged and satisfied to
the extent proper payments are made from such trust to a Participant or
Beneficiary.
8.02 Creditor Status Any assets which an Employer may acquire or set aside to
help cover its financial liabilities are and shall remain general assets of such
Employer subject to the claims of its general, unsecured creditors. Neither the
Employer nor this Plan gives the Participant or any other person any beneficial
or equitable ownership interest in any asset of the Employer. All rights of
ownership in any such assets are, and remain, in the Employer.
ARTICLE IX
MISCELLANEOUS
9.01 Written Notice Any notice which shall or may be given under this Plan shall
be in writing and shall be mailed by United States mail, postage prepaid. If
notice is to be given to the Committee or the Plan Administrator, such notice
shall be addressed to the Employee Benefits Committee at One ConAgra Drive,
Omaha, NE 68102-5001
9.02 Change of Address Any Participant may, from time to time, change the
address to which notices shall be mailed by giving written notice of such new
address.
9.03 Merger, Consolidation or Acquisition The Plan shall be binding upon each
Employer, its assigns, and any successor company which shall succeed to
substantially all of its assets and business through merger, acquisition or
consolidation, and upon a Participant, his Beneficiary, assigns, heirs,
executors and administrators.
9.04 Amendment and Termination The Company, by action of the Committee, retains
the sole and unilateral right to terminate, amend, modify or supplement this
Plan, in whole or in part, at any time. This right includes the right to make
retroactive amendments and the right to discontinue contributions. However, in
no event shall the Company have the right to amend the Plan in a manner which
adversely affects any rights of any Participant (to the extent already accrued)
or, if deceased, such Participant's Beneficiary, including, but not limited to,
the right to payment of benefits pursuant to Article III hereof.
9.05 Employment This Plan does not provide a contract of employment between the
Employer and the Participant, and, except as provided in any other contractual
arrangement, if any, between a Participant and the Employer, the Employer
reserves the right to terminate the Participant's employment, for any reason, at
any time, notwithstanding the existence of this Plan.
9.06 Nontransferability Except insofar as prohibited by applicable law, no sale,
transfer, alienation, assignment, pledge, collateralization or attachment of any
benefits under this Plan shall be valid or recognized by the Company. Neither
the Participant, his spouse, or designated Beneficiary, shall have any power to
hypothecate, mortgage, commute, modify or otherwise encumber in advance of any
of the benefits payable hereunder, nor shall any of said benefits be subject to
seizure for the payment of any debts, judgments, alimony maintenance, owed by
the Participant or his Beneficiary, or be transferable by operation of law in
the event of bankruptcy, insolvency or otherwise.
9.07 Legal Fees All reasonable legal fees incurred by any Participant (or former
Participant) to successfully enforce his valid rights under this Plan shall be
paid by the Company in addition to sums due under this Plan.
9.08 Tax Withholding The Company may withhold from a payment any federal, state
or local taxes required by law to be withheld with respect to such payment and
such sum as the Company may reasonably estimate as necessary to cover any taxes
for which the Company may be liable and which may be assessed with regard to
such payment.
9.09 Acceleration of Payment The Company reserves the right to accelerate the
payment of any benefits payable under this Plan at any time without the consent
of the Participant, his estate, his Beneficiary or any other person claiming
through the Participant.
9.10 Applicable Law This Plan shall be governed by the laws of the state of
Nebraska.
9.11 Effective Date The Plan was adopted effective January 1, 1988. This amended
and restated document reflects all Plan amendments through August 1, 2005