Exhibit 10.1
CHANGE OF CONTROL AGREEMENT
This CHANGE OF CONTROL AGREEMENT ("Agreement") is made as of [Date],
between ConAgra Foods, Inc., a Delaware Corporation (the "Company"), and [Name]
(the "Employee").
WHEREAS, as is the case with most, if not all, publicly traded businesses,
it is expected that the Company from time to time may consider or need to
consider the possibility of an acquisition by another company or other Change of
Control of the ownership of the Company. The Board of Directors of the Company
(the "Board") recognizes that such considerations can be a distraction to
Employee and can cause the Employee to consider alternative employment
opportunities or to be influenced by the impact of a possible Change of Control
of the ownership of the Company on Employee's personal circumstances in
evaluating such opportunities. The Board has determined that it is in the best
interests of the Company and its shareholders to assure that the Company will
have the continued dedication and objectivity of Employee, notwithstanding the
possibility, threat or occurrence of a Change of Control of the Company.
WHEREAS, the Board believes that it is in the best interests of the Company
and its shareholders to provide Employee with an incentive to continue
Employee's employment and to motivate Employee to maximize the value of the
Company upon a Change of Control for the benefit of its shareholders.
WHEREAS, the Board believes that it is important to provide Employee with
certain benefits upon Employee's termination of employment in certain instances
upon or following a Change of Control that provide Employee with enhanced
financial security and incentive and encouragement to remain with the Company
notwithstanding the possibility of a Change of Control.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements hereinafter set forth and intending to be legally bound hereby,
the parties hereto agree as follows:
1. Definitions. For all purposes of this Agreement, the following terms shall
have the meanings specified in this Section unless the context clearly
otherwise requires:
(a) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of Regulation 12B under the
Exchange Act.
(b) A Person shall be deemed to have "Beneficial Ownership" of any
securities: (i) that such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to acquire (whether
such right is exercisable immediately or only after the passage of
time) pursuant to any agreement, arrangement or understanding (whether
or not in writing) or upon the exercise of conversion rights, exchange
rights, rights, warrants or options, or otherwise; provided, however,
that a Person shall not be deemed the "Beneficial Owner" of securities
tendered pursuant to a tender or exchange offer made by such Person or
any of such Person's Affiliates or Associates until such tendered
securities are accepted for payment, purchase or exchange; (ii) that
such Person or any of such Person's Affiliates or Associates, directly
or indirectly, has the right to vote or dispose of or has "beneficial
ownership" of (as determined pursuant to Rule 13d-3 of Regulation
13D-G under the Exchange Act), including without limitation pursuant
to any agreement, arrangement or understanding, whether or not in
writing; provided, however, that a Person shall not be deemed the
"Beneficial Owner" of any security under this clause; as a result of
an oral or written agreement, arrangement or understanding to vote
such security if such agreement, arrangement or understanding (A)
arises solely from a revocable proxy given in response to a public
proxy or consent solicitation made pursuant to, and in accordance
with, the applicable provisions of the Proxy Rules under the Exchange
Act, and (B) is not then reportable by such Person on Schedule 13D
under the Exchange Act (or any comparable or successor report); or
(iii) that are beneficially owned, directly or indirectly, by any
other Person (or any Affiliate or Associate thereof) with which such
Person (or any of such Person's Affiliates or Associates) has any
agreement, arrangement or understanding (whether or not in writing)
for the purpose of acquiring, holding, voting (except pursuant to a
revocable proxy as described in the proviso to clause (ii) above) or
disposing of any voting securities of the Company; provided, however,
that nothing in this Section 1(b) shall cause a Person engaged in
business as an underwriter of securities to be the "Beneficial Owner"
of any securities acquired through such Person's participation in good
faith in a firm commitment underwriting until the expiration of forty
(40) days after the date of such acquisition.
(c) "Change of Control" shall mean:
(i) Individuals who constitute the Board (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 the
Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board
shall be, for purposes of this Agreement, considered as though
such person were a member of the Incumbent Board; or
(ii) Consummation of a reorganization, merger, consolidation, in each
case, with respect to which persons who were the shareholders of
the Company immediately prior to such reorganization, merger or
consolidation do not, immediately thereafter, own more than fifty
percent (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 the Company or of the sale of all
or substantially all of its assets.
(d) "Cause" shall mean (i) the willful and continued failure by Employee
to substantially perform Employee's duties with the Company (other
than any such failure resulting from termination by the Employee for
Good Reason) after a demand for substantial performance is delivered
to the Employee that specifically identifies the manner in which the
Company believes that the Employee has not substantially performed
Employee's duties, and the Employee has failed to resume substantial
performance of the Employee's duties on a continuous basis within five
(5) days of receiving such demand, (ii) the willful engaging by the
Employee in conduct which is demonstrably and materially injurious to
the Company, monetarily or otherwise, or (iii) the Employee's
conviction of a felony or conviction of a misdemeanor which impairs
the Employee's ability substantially to perform the Employee's duties
with the Company. For purposes of this subsection, no act, or failure
to act, on the Employee's part shall be deemed "willful" unless done,
or omitted to be done, by the Employee not in good faith and without
reasonable belief that the Employee's action or omission was in the
best interest of the Company.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(f) "Continuation Period" means the three (3) year period beginning on the
Employee's Termination Date.
(g) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(h) "Good Reason Termination" shall mean a Termination of Employment
initiated by the Employee upon one or more of the following
occurrences:
(i) any failure of the Company to comply with and satisfy any of the
terms of this Agreement;
(ii) any significant involuntary reduction of the authority, duties or
responsibilities held by the Employee immediately prior to the
Change of Control;
(iii) any involuntary removal of the Employee from an officer position
which the Employee holds with the Company or, if the Employee is
employed by a Subsidiary or Affiliate, with the Subsidiary or
Affiliate, held by the Employee immediately prior to the Change
of Control, except in connection with promotions to higher
office;
(iv) any involuntary reduction in the aggregate compensation level of
the Employee including, but not limited to, base salary, annual
and long term incentive opportunity, and supplemental executive
retirement plans, as in effect immediately prior to the Change of
Control;
(v) requiring the Employee to become based at any office or location
more than the minimum number of miles required by the Code for
the Employee to claim a moving expense deduction, from the office
or location at which the Employee was based immediately prior to
such Change of Control, except for travel reasonably required in
the performance of the Employee's responsibilities; and
(vi) the Employee being required to undertake business travel to an
extent substantially greater than the Employee's business travel
obligations immediately prior to the Change of Control.
(i) "Subsidiary" shall mean any corporation in which the Company, directly
or indirectly, owns at least a fifty percent (50%) interest or an
unincorporated entity of which the Company, directly or indirectly,
owns at least fifty percent (50%) of the profits or capital interests.
(j) "Termination Date" shall mean the effective date of the Employee's
Termination of Employment, as specified in the Notice of Termination.
(k) "Termination of Employment" shall mean the termination of the
Employee's actual employment relationship with the Company and its
Subsidiaries and Affiliates.
2. Notice of Termination. Any Termination of Employment upon or following a
Change of Control shall be communicated by a Notice of Termination to
Employee given in accordance with Section 15 hereof. For purposes of this
Agreement, a "Notice of Termination" means a written notice which (i)
indicates the specific provision in this Agreement relied upon, (ii)
briefly summarizes the facts and circumstances deemed to provide a basis
for the Employee's Termination of Employment under the provision so
indicated, and (iii) if the Termination Date is other than the date of
receipt of such notice, specifies the Termination Date (which date shall
not be more than 15 days after the giving of such notice).
3. Severance Compensation upon Termination of Employment.
(a) Subject to the provisions of Section 10 hereof and further subject to
the Employee executing and not revoking a release of claims
substantially in the form set forth as Exhibit A to this Agreement, in
the event of the Employee's involuntary Termination of Employment by
the Company or a Subsidiary or Affiliate for any reason other than
Cause or in the event of a Good Reason Termination, in either event
upon or within three years after a Change of Control, the Employee
shall receive the following amounts in lieu of any severance
compensation and benefits under the Company's severance plan:
(i) The Company shall pay to the Employee a lump sum cash payment,
within thirty days of the Termination Date, equal to [one, two or
three, based upon level] multiplied by the sum of (1) the
Employee's annual base salary plus (2) the Employee's annual
bonus. The annual base salary for this purpose shall be the
Employee's highest annual base salary as of or after the Change
of Control. The annual bonus shall be calculated for this purpose
as the greater of (x) the highest annual cash bonus paid to the
Employee for the three (3) full fiscal years of the Company
preceding the fiscal year in which the Change of Control occurs
or (y) the Employee's target annual cash bonus for the fiscal
year in which the Change of Control occurs.
(ii) During the Continuation Period, the Employee shall continue to be
entitled to participate in the medical and dental, disability,
basic life insurance and supplemental life insurance plans of the
Company or Subsidiary or Affiliate (to the extent such benefits
remain in effect for other executives of the Company from time to
time during the Continuation Period) based upon the amount of
benefit provided to the Employee as of the Employee's Termination
of Employment. The Employee shall be responsible for making
required contributions, on an after-tax basis, at the rate
required of all executive employees at the time of the
Participant's Termination of Employment or thereafter, except for
the medical and dental coverage. For the medical and dental
coverage, the Employee shall be required to contribute, on an
after-tax basis, the premium ("COBRA Premium") determined for the
plan under Section 4980B(f) of the Code. The Company shall pay to
the Employee a single lump sum payment equal to the present value
of the cost of the medical and dental coverage (assuming family
coverage and a reasonable increase in the COBRA Premium) plus an
amount necessary so that the net amount received by the Employee
after deducting any federal, state and local income tax and
employment tax will equal the present value of the cost of such
coverage. For purposes of determining the amount of this
additional payment, the Employee shall be deemed to pay federal
income tax and employment tax at the highest marginal rate of
federal income and employment taxation in the calendar year in
which such payment is made and state and local income taxes at
the highest marginal rate of taxation in the state and locality
of the Employee's residence on the Termination Date. If it is not
possible to continue the disability, basic life and supplemented
life insurance coverage without violation of or noncompliance
with tax (including Code Section 409A), legal or insurance
requirements, the Company shall pay to the Employee a single lump
sum payment equal to the present value of the cost of such
coverage for the Continuation Period on the first day on which
severance compensation is paid pursuant to subsection (b) below;
provided that if payment in a lump sum would cause taxation under
Code Section 409A, the Company shall pay the cost of such
coverage for each calendar year (or portion thereof) that falls
within the Continuation Period on the first business day during
each such calendar year (or portion thereof) on which payment can
be made without causing taxation under Code Section 409A.
(iii) If the Employee participates in one or more Company defined
benefit pension plans ("Pension Plans"), the Company shall adjust
the benefit payable thereunder by adding three (3) years to the
number of years of service and the Employee's age for all
purposes under the Pension Plans. [This pension benefit is not
included in Mr. Rodkin's agreement; Mr. Rodkin receives the
pension benefit provided by his Employment Agreement dated August
31, 2005.] The benefits provided under this Subsection (iii)
shall be paid from a Company nonqualified pension plan or from
the general assets of the Company. The supplemental pension
benefits payable under this Subsection (iii) shall be unfunded
until the Termination Date. Within sixty (60) days following the
Termination Date, the supplemental pension benefit shall be
funded, in one lump sum payment, through a trust in the form of
the model grantor trust contained in IRS Revenue Procedure 92-64,
which trust is incorporated by reference. The acquiror, the
Company and its subsidiaries shall make up any supplemental
pension benefit payments the Employee does not receive under the
trust, e.g., if the funds in the trust are insufficient to make
the payments due to insufficient earnings in the trust. The
trustee of such trust shall be a national or state chartered
bank.
(iv) If the Employee participates in the qualified and/or nonqualified
ConAgra Foods Retirement Income Savings Plan ("CRISP"), the
Employee shall receive a supplemental CRISP benefit equal to
three (3) multiplied by the maximum employer contribution that
the Employee could have received under the qualified and
nonqualified CRISP (or any successor plan) in the year that
includes the Termination Date, assuming that the Employee
contributed the maximum amount allowed to CRISP (or the successor
plan).
(v) The Company, at its expense, shall provide reasonable
outplacement assistance to the Employee through the end of the
second calendar year beginning after the Termination Date from a
professional outplacement assistant firm which is reasonably
suitable to the Employee and commensurate with the Employee's
position and responsibilities. In no event shall the amount
expended with outplacement assistance for the Employee exceed
Thirty Thousand Dollars ($30,000).
(b) Except as otherwise required by Section 409A of the Code, the amounts
described in subsections 3(a) (i), (ii), (iii) and (v) above shall be
paid within thirty (30) days after the Termination Date. If payment is
required to be delayed for a period of time after the Termination Date
(a "Postponement Period") pursuant to Section 409A of the Code, the
accumulated amounts withheld on account of Section 409A of the Code,
with accrued interest as described in Section 5 below, shall be paid
in a lump sum payment within five (5) days after the end of the
Postponement Period. If the Employee dies during such the Postponement
Period prior to the payment of benefits, the amounts withheld on
account of Section 409A of the Code, with accrued interest as
described in Section 5 below, shall be paid to the personal
representative of the Employee's estate within sixty (60) days after
the date of the Employee's death. Payments under this Agreement shall
be made by mail to the last address provided for notices to the
Employee pursuant to Section 15 of this Agreement.
4. Other Payments. Upon any Termination of Employment entitling the Employee
to payments under this Agreement, the Employee shall receive all accrued
but unpaid salary and all benefits accrued and payable under any plans,
policies and programs of the Company and its Subsidiaries or Affiliates,
except for benefits payable under the Company's severance plan.
5. Interest; Enforcement.
(a) If payment of the amounts described in Section 3 or Section 10 is
delayed pursuant to Section 409A of the Code, the Company shall pay
interest at the rate described below on the postponed payments from
the Employee's Termination Date to the date on which such amounts are
paid. If the Company shall fail or refuse to pay any amounts due the
Employee under Section 3 or 10 on the applicable due date, the Company
shall pay interest at the rate described below on the unpaid payments
from the applicable due date to the date on which such amounts are
paid. Interest shall be credited at an annual rate equal to the rate
announced by Wells Fargo & Company (or its successor) as its "prime
rate" as of the Employee's Termination Date, plus one percent (1%),
compounded annually.
(b) The Employee shall not be required to incur any expenses associated
with the enforcement of the Employee's rights under this Agreement by
arbitration, litigation or other legal action, because the cost and
expense thereof would substantially detract from the benefits intended
to be extended to the Employee hereunder. Accordingly, the Company
shall pay the Employee on demand the amount necessary to reimburse the
Employee in full for all reasonable expenses (including all attorneys'
fees and legal expenses) incurred by the Employee in enforcing any of
the obligations of the Company under this Agreement. The Employee
shall notify the Company of the expenses for which the Employee
demands reimbursement within sixty (60) days after the Employee
receives an invoice for such expenses, and the Company shall pay the
reimbursement amount within fifteen (15) days after receipt of such
notice.
6. No Mitigation. The Employee shall not be required to mitigate the amount of
any payment or benefit provided for in this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment or benefit
provided for herein be reduced by any compensation earned by other
employment or otherwise.
7. Nonexclusivity of Rights. Nothing in this Agreement shall prevent or limit
the Employee's continuing or future participation in or rights under any
benefit, bonus, incentive or other plan or program provided by the Company,
or any of its Subsidiaries or Affiliates, and for which the Employee may
qualify, except as provided in this Agreement.
8. No Set Off. The Company's obligation to make the payments provided for in
this Agreement and otherwise to perform its obligations hereunder shall not
be affected by any circumstances, including, without limitation, any
set-off, counterclaim, recoupment, defense or other right which the Company
may have against the Employee or others.
9. Taxation.
(a) Notwithstanding anything in this Agreement to the contrary, the
Company shall not pay benefits under this Agreement earlier than the
earliest date permitted by Section 409A of the Code, or later than the
latest date permitted by Section 409A, in order to enable the Employee
to avoid taxation under Section 409A of the Code. Compensation that is
subject to Section 409A of the Code shall only be paid upon an event
permitted by Section 409A, and this Agreement shall be administered
consistently with Section 409A, to the extent applicable. The parties
acknowledge that the requirements of Section 409A are still being
developed and interpreted by government agencies, that certain issues
under Section 409A remain unclear at this time, and that the parties
hereto have made a good faith effort to comply with current guidance
under Section 409A. Notwithstanding anything in this Agreement to the
contrary, in the event that amendments to this Agreement are necessary
in order to comply with future guidance or interpretations under
Section 409A, including amendments necessary to ensure that
compensation will not be subject to Section 409A taxation, the
Employee agrees that the Company shall be permitted to make such
amendments, on a prospective and/or retroactive basis, in its sole
discretion, provided that the parties have made a good faith effort to
discuss the solutions and alternatives and provided that, following
the amendment, the Employee receives comparable economic value as if
no delay was required.
(b) All payments under this Agreement shall be subject to all requirements
of the law with regard to tax withholding and reporting and filing
requirements, and the Company shall use its best efforts to satisfy
promptly all such requirements.
10. Gross-Up Payment.
(a) Except as otherwise provided in subsection (b) below, in the event
that it shall be determined that any payment or distribution in the
nature of compensation (within the meaning of Section 280G(b)(2) of
the Code) to or for the benefit of the Employee, whether paid or
payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise (a "Payment"), would constitute an "excess
parachute payment" within the meaning of Section 280G of the Code, the
Company shall pay to the Employee an additional amount (the "Gross-Up
Payment") such that the net amount retained by the Employee after
deduction of any Excise Tax (as defined below), and any federal, state
and local income tax, employment tax and Excise Tax imposed upon the
Gross-Up Payment, shall be equal to the Payment. The term "Excise Tax"
means the excise tax imposed under Section 4999 of the Code, together
with any interest or penalties imposed with respect to such excise
tax. For purposes of determining the amount of the Gross-Up Payment,
the Employee shall be deemed to pay federal income tax and employment
tax at the highest marginal rate of federal income and employment
taxation in the calendar year in which the Gross-Up Payment is to be
made and state and local income taxes at the highest marginal rate of
taxation in the state and locality of the Employee's residence on the
Termination Date, net of the maximum reduction in federal income taxes
that may be obtained from the deduction of such state and local taxes.
(b) Notwithstanding the foregoing, the Gross-Up Payment described in
subsection (a) shall not be paid to the Employee if the aggregate
Parachute Value (as defined below) of all Payments does not exceed one
hundred ten percent (110%) of the Safe Harbor Amount (as defined
below). [This exception does not apply to Mr. Rodkin's agreement.] The
"Parachute Value" of a Payment is the present value as of the date of
the Change of Control of the portion of the Payment that constitutes a
"parachute payment" under Section 280G(b)(2) of the Code, as
determined by the Accounting Firm (as defined below) in accordance
with Section 280G(b)(2) of the Code. The "Safe Harbor Amount" is the
maximum dollar amount of payments in the nature of compensation that
are contingent on a Change of Control (as described in Section 280G of
the Code) and that may be paid or distributed to the Employee without
imposition of the Excise Tax.
(c) In the event that the Company does not pay a Gross-Up Payment as a
result of subsection (b), the aggregate present value of the Payments
under the Agreement shall be reduced (but not below zero) to the
Reduced Amount. The "Reduced Amount" shall be an amount expressed in
present value which maximizes the aggregate present value of Payments
under this Agreement without causing any Payment under this Agreement
to be subject to the Excise Tax, determined in accordance with Section
280G(d)(4) of the Code. Unless the Employee shall have elected another
method of reduction by written notice to the Company prior to the
Change of Control, the Company shall reduce the Payments under this
Agreement by first reducing Payments that are payable in cash and then
by reducing Payments that are not payable in cash. Only amounts
payable under this Agreement shall be reduced pursuant to this
subsection (c).
(d) All determinations to be made under this Section 10 shall be made by
an independent registered public accounting firm selected by the
Company immediately prior to the Change of Control (the "Accounting
Firm"), which shall provide its determinations and any supporting
calculations both to the Company and the Employee within ten (10) days
of the Change of Control. Any such determination by the Accounting
Firm shall be binding upon the Company and the Employee.
(e) The Company shall pay the applicable Gross-Up Payment as and when the
Excise Tax is incurred on a Payment. The Gross-Up Payment shall be
paid in accordance with Section 409A of the Code, to the extent
applicable. If required in order to comply with Section 409A of the
Code, (i) the Gross-Up Payment attributable to Payments other than
severance compensation and benefits described in Section 3 shall be
paid in a lump sum payment upon the closing of the Change of Control,
and (ii) the Gross-Up Payment attributable to severance compensation
and benefits shall be paid in a lump sum payment on the first day on
which severance compensation is paid pursuant to Section 3. If the
amount of a Gross-Up Payment cannot be fully determined by the date on
which the applicable portion of the Payment becomes subject to the
Excise Tax ("Payment Date"), the Company shall pay to the Employee by
the Payment Date an estimate of such Gross-Up Payment, as determined
by the Accounting Firm, and the Company shall pay to the Employee the
remainder of such Gross-Up Payment (if any) as soon as the amount can
be determined, but in no event later than twenty (20) days after the
Payment Date. If for any reason the Gross-Up Payment is subject to
interest or additional tax amounts described in Section 409A(a)(1)(B)
or Section 409A(b)(4) of the Code ("Section 409A Penalties"), the
amount of the Gross-Up Payment shall be determined by taking into
account any amount necessary to pay the Section 409A Penalties.
(f) All of the fees and expenses of the Accounting Firm in performing the
determinations referred to in this Section shall be borne solely by
the Company. The Company agrees to indemnify and hold harmless the
Accounting Firm of and from any and all claims, damages and expenses
resulting from or relating to its determinations pursuant to this
Section, except for claims, damages or expenses resulting from the
gross negligence or willful misconduct of the Accounting Firm.
11. Term. This Agreement shall commence on the date hereof and, unless there is
a Change of Control, shall continue until the earliest of (a) the
Employee's termination of employment as a full time employee of the
Company, (b) the date the Employee enters into a written separation
agreement with the Company; or (c) the date when this Agreement is
terminated by the Company in accordance with the next sentence. If a Change
of Control has not occurred, then the Company shall have the right at any
time to terminate this Agreement by giving the Employee six (6) months
prior written notice of termination of this Agreement. If a Change of
Control occurs at any time prior to the termination of this Agreement
pursuant to the preceding, this Agreement shall terminate on the third
anniversary of such Change of Control.
12. Confidentiality. The Employee acknowledges that during the Employee's
employment with the Company or any of its Affiliates, the Employee will
acquire, be exposed to and have access to, non-public material, data and
information of the Company and its Affiliates and/or their customers or
clients that is confidential, proprietary, and/or a trade secret
("Confidential Information"). At all times, both during and after the Term,
the Employee shall keep and retain in confidence and shall not disclose,
except as required and authorized in the course of the Employee's
employment with the Company or any of its Affiliates, to any person, firm
or corporation, or use for his or her own purposes, any Confidential
Information. For purposes of this Agreement, such Confidential Information
shall include, but shall not be limited to: sales methods, information
concerning principals or customers, advertising methods, financial affairs
or methods of procurement, marketing and business plans, strategies
(including risk strategies), projections, business opportunities,
inventions, designs, drawings, research and development plans, client
lists, sales and cost information and financial results and performance.
Notwithstanding the foregoing, "Confidential Information" shall not include
any information known generally to the public (other than as a result of
unauthorized disclosure by the Employee or by the Company or its
Affiliates). The Employee acknowledges that the obligations pertaining to
the confidentiality and non-disclosure of Confidential Information shall
remain in effect for a period of five (5) years after the Employee's
Termination of Employment, or until the Company or its Affiliates has
released any such information into the public domain, in which case the
Employee's obligation hereunder shall cease with respect only to such
information so released into the public domain. The Employee's obligation
under this Section 12 shall survive any Termination of Employment. If the
Employee receives a subpoena or other judicial process requiring that he or
she produce, provide or testify about Confidential Information, the
Employee shall notify the Company and cooperate fully with the Company in
resisting disclosure of the Confidential Information. The Employee
acknowledges that the Company has the right either in the name of the
Employee or in its own name to oppose or move to quash any subpoena or
other legal process directed to the Employee regarding Confidential
Information.
13. Incentive Payments Upon Change of Control. Upon a Change of Control, the
Company may, at the Board's, or the Human Resources Committee's, as the
case may be, sole and absolute discretion, pay the Employee all or a
portion of the Employee's Short and/or Long Term Incentive for the Company
fiscal year in which the Change of Control occurs. The amounts paid may be
based upon (a) a proration of the Employee's target incentives for the
fiscal year, (b) a proration of the projected incentives at the time of the
Change of Control, or (c) a pro rata amount computed at the end of the
fiscal year. Any proration shall be based upon the number of completed
months elapsed in the fiscal year since the Change of Control.
14. Successor Company. The Company shall require any successor or successors
(whether direct or indirect, by purchase, merger or otherwise) to all or
substantially all of the business or assets of the Company, by agreement in
form and substance satisfactory to the Employee, to acknowledge expressly
that this Agreement is binding upon and enforceable against the Company in
accordance with the terms hereof, and to become jointly and severally
obligated with the Company to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform if no such
succession or successions had taken place. Failure of the Company to notify
the Employee in writing as to such successorship, to provide the Employee
the opportunity to review and agree to the successor's assumption of this
Agreement or to obtain such agreement prior to the effectiveness of any
such succession shall be a breach of this Agreement. As used in this
Agreement, the Company shall mean the Company as defined above and any such
successor or successors to its business or assets, jointly and severally.
15. Notice. All notices and other communications required or permitted
hereunder or necessary or convenient in connection herewith shall be in
writing and shall be delivered personally or mailed by registered or
certified mail, return receipt requested, or by overnight express courier
service, as follows:
If to the Company, to:
ConAgra Foods, Inc.
One ConAgra Drive
Omaha, NE 68102-5094
Attention: Corporate Secretary
If to the Employee, to the most recent address provided by the Employee to
the Company or a Subsidiary or Affiliate for payroll purposes, or to such
other address as the Company or the Employee, as the case may be, shall
designate by notice to the other party hereto in the manner specified in
this Section; provided, however, that if no such notice is given by the
Company following a Change of Control, notice at the last address of the
Company or any successor pursuant to Section 14 shall be deemed sufficient
for the purposes hereof. Any such notice shall be deemed delivered and
effective when received in the case of personal delivery, five (5) days
after deposit, postage prepaid, with the U.S. Postal Service in the case of
registered or certified mail, or on the next business day in the case of
overnight express courier service.
16. Contents of Agreement; Amendment. This Agreement supersedes all prior
agreements with respect to the subject matter hereof (including without
limitation any Change of Control Agreement in effect between the Company or
a Subsidiary or Affiliate and the Employee) and sets forth the entire
understanding between the parties hereto with respect to the subject matter
hereof. This Agreement cannot be amended except pursuant to approval by the
Company's Board of Directors and a written amendment executed by the
Employee and the Chair of the Company's Board of Directors. The provisions
of this Agreement may require a variance from the terms and conditions of
certain compensation or bonus plans under circumstances where such plans
would not provide for payment thereof in order to obtain the maximum
benefits for the Employee. The parties intend that the provisions of this
Agreement shall supersede any provisions to the contrary in such plans, and
such plans shall be deemed to have been amended to correspond with this
Agreement without further action by the Company or the Company's Board of
Directors.
17. No Right to Continued Employment. Nothing in this Agreement shall be
construed as giving the Employee any right to be retained in the employ of
the Company or a Subsidiary or Affiliate.
18. Governing Law. This Agreement shall be governed by and interpreted under
the laws of the State of Delaware without giving effect to any conflict of
laws provisions.
19. Successors and Assigns. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective heirs, representatives, successors and assigns of the parties
hereto, except that the duties and responsibilities of the Employee and the
Company hereunder shall not be assignable in whole or in part.
20. Severability. If any provision of this Agreement or application thereof to
anyone or under any circumstances shall be determined to be invalid or
unenforceable, such invalidity or unenforceability shall not affect any
other provisions or applications of this Agreement which can be given
effect without the invalid or unenforceable provision or application.
21. Remedies Cumulative; No Waiver. No right conferred upon the Employee by
this Agreement is intended to be exclusive of any other right or remedy,
and each and every such right or remedy shall be cumulative and shall be in
addition to any other right or remedy given hereunder or now or hereafter
existing at law or in equity. No delay or omission by the Employee in
exercising any right, remedy or power hereunder or existing at law or in
equity shall be construed as a waiver thereof.
22. Miscellaneous. All Section headings are for convenience only. This
Agreement may be executed in several counterparts, each of which is an
original. It shall not be necessary in making proof of this Agreement or
any counterpart hereof to produce or account for any of the other
counterparts.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
EMPLOYEE: CONAGRA FOODS, INC.
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EXHIBIT A
WAIVER AND RELEASE OF CLAIMS
In consideration of, and subject to, the payment to be made to me by
_________________ (the "Employer") of the payments and benefits provided by
Change of Control Agreement, dated as of __________________, entered into
between me and the Company (the "Agreement"), I hereby waive any claims I may
have for employment or re-employment by the Employer or any parent or subsidiary
of the Employer after the date hereof, and I further agree to and do release and
forever discharge the Employer and any parent or subsidiary of the Employer, and
their respective past and present officers, directors, shareholders, insurers,
employees and agents from any and all claims and causes of action, known or
unknown, arising out of or relating to my employment with the Employer or any
parent or subsidiary of the Employer, or the termination thereof, including, but
not limited to, wrongful discharge, breach of contract, tort, fraud, the Civil
Rights Acts, the Age Discrimination in Employment Act, the Employee Retirement
Income Security Acts, the Americans with Disabilities Act, the Older Workers
Benefit Protection Act, or any other federal, state or local legislation or
common law relating to employment or discrimination in employment or otherwise.
Notwithstanding the foregoing or any other provision hereof, nothing in this
Waiver and Release of Claims shall adversely affect (i) my rights to payment and
benefits under the Agreement; (ii) my rights to benefits other than severance
payments or benefits under plans, programs and arrangements of the Employer or
any parent or subsidiary of the Employer; or (iii) my rights to indemnification
under any indemnification agreement, applicable law or the certificates of
incorporation or bylaws of the Employer or any parent or subsidiary of the
Employer, (iv) my rights under any director's and officers' liability insurance
policy covering me, (v) my workers compensation rights, or (vi) my unemployment
insurance rights.
I acknowledge that I have signed this Waiver and Release of Claims voluntarily,
knowingly, of my own free will and without reservation or duress, and that no
promises or representations have been made to me by any person to induce me to
do so other than the promise of payment set forth in the first paragraph above
and the Employer's acknowledgment of my rights reserved under the second
paragraph above.
I understand that this release will be deemed to be an application for benefits
under the Agreement and that my entitlement thereto shall be governed by the
terms and conditions of the Agreement and any applicable plan. I expressly
hereby consent to such terms and conditions.
I acknowledge that I have been given not less than forty-five (45) days to
review and consider this Waiver and Release of Claims (unless I have signed a
written waiver of such review and consideration period), and that I have had the
opportunity to consult with an attorney or other advisor of my choice and have
been advised by the Company to do so if I choose. I may revoke this Waiver and
Release of Claims seven (7) days or less after its execution by providing
written notice to the Employer.
I acknowledge that it is my intention and the intention of the Employer in
executing this Waiver and Release of Claims that the same shall be effective as
a bar to each and every claim, demand and cause of action hereinabove specified.
In furtherance of this intention, I hereby expressly waive any and all rights
and benefits conferred upon me by the provisions of SECTION 1542 OF THE
CALIFORNIA CIVIL CODE, to the extent applicable to me, and expressly I consent
that this Waiver and Release of Claims shall be given full force and effect
according to each and all of its express terms and provisions, including as well
those related to unknown and unsuspected claims, demands and causes of action,
if any, as well as those relating to any other claims, demands and causes of
action hereinabove specified. SECTION 1542 provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR."
I acknowledge that I may hereafter discover claims or facts in addition to or
different from those which I now know or believe to exist with respect to the
subject matter of this Waiver and Release of Claims and which, if known or
suspected at the time of executing this Waiver and Release of Claims, may have
materially affected this settlement.
Finally, I acknowledge that I have read this Waiver and Release of Claims and
understand all of its terms.
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Signature of Executive
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Printed Name
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Date Signed