Terms of the
Series B Adjustable Rate Cumulative Preferred Securities
DATED AS OF June 1, 1994
WRITTEN ACTION OF THE MANAGING MEMBERS
PURSUANT TO SECTION 3.02 OF THE
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
The undersigned, constituting all of the Managing
Members of ConAgra Capital, L.C., an Iowa limited liability
company (the "Company"), pursuant to Section 3.02 of the
Limited Liability Company Operating Agreement (the
"Operating Agreement") dated as of March 11, 1994 by and
among the Managing Members, do hereby authorize the issue
of, and establish the relative rights, powers and duties of,
a series of Series Preferred Membership Interests (as
defined in the Operating Agreement), as follows:
1. Definitions. All terms defined in the
Operating Agreement and not otherwise defined herein shall
have for purposes hereof the meanings provided for therein.
The following additional terms have the respective meanings
specified below:
"Applicable Price" means as of any date of
determination and with respect to any Series B Preferred
Security, the stated liquidation preference of such Series B
Preferred Security, plus accumulated and unpaid dividends
(whether or not declared) to the date of such determination.
"Business Day" means any day other than a day on
which banking institutions in The City of New York are
authorized or required by law to close.
"Debentures" means all debentures issued and
outstanding under the Subordinated Indenture.
"DTC" means The Depository Trust Company, as
depositary for the Series B Preferred Securities (as defined
below).
"Expense Agreement" means the Agreement as to
Expenses and Liabilities dated as of April 20, 1994 between
ConAgra and the Company.
"Guarantee" means the Payment and Guarantee
Agreement dated as of April 20, 1994, executed and delivered
by ConAgra for the benefit of the holders from time to time
of the Series B Preferred Securities and other Preferred
Interests of the Company.
"Series B Debentures" means the $175,000,000
aggregate principal amount of ConAgra's Series B Debentures
issued pursuant to the Subordinated Indenture.
"Subordinated Indenture" means the Indenture dated
as of March 10, 1994 as supplemented by the First
Supplemental Indenture dated April 20, 1994, the Second
Supplemental Indenture dated April 20, 1994, the Third
Supplemental Indenture dated June 1, 1994 and the Fourth
Supplemental Indenture dated June 1, 1994, between ConAgra
and First Trust National Association, as trustee.
"Underwriting Agreement" means the Underwriting
Agreement dated as of June 1, 1994, among ConAgra, the
Company, and Smith Barney Inc. as representative of the
several underwriters named therein.
2. Designation. 7,000,000 Series Preferred
Membership Interests with a liquidation preference of $25
per interest are hereby authorized and designated as "Series
B Adjustable Rate Cumulative Preferred Securities"
(hereinafter called the "Series B Preferred Securities").
3. Voting. Except as otherwise provided in the Act,
the Operating Agreement (including, without limitation,
Section 3.02(e) thereof) or this Written Action, Preferred
Members holding the Series B Preferred Securities shall
have, with respect to such Series B Preferred Securities, no
right or power to vote on any question or matter or in any
proceeding or to be represented at, or to receive notice of,
any meeting of Members.
4. Periodic Distributions. (a) Periodic
distributions (herein referred to as "dividends") on the
Series B Preferred Securities shall be cumulative.
Dividends shall accrue from June 8, 1994 and shall be
payable monthly in arrears on the last day of each calendar
month of each year, commencing on June 30, 1994.
(b) The dividend rate for dividends payable on
the Series B Preferred Securities from and including June 8,
1994, to and including August 31, 1994 will be 7.06% per
annum. The dividend rate for each monthly dividend period
thereafter will be the rate per annum equal to the
Applicable Rate (as defined below) in effect for the
Quarterly Period (as defined below) in which such dividend
period occurs.
Except as provided below in this paragraph, the
"Applicable Rate" for any Quarterly Period will be equal to
95% of the Effective Rate (as defined below), but not less
than 5.0% per annum, or more than 10.5% per annum. The
"Effective Rate" for any Quarterly Period will be equal to
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the highest of the Treasury Bill Rate, the Ten Year Constant
Maturity Rate and the Thirty Year Constant Maturity Rate
(each as defined below) for such Quarterly Period. In the
event that the Company determines in good faith that for any
reason:
(i) any one of the Treasury Bill Rate, the Ten
Year Constant Maturity Rate or the Thirty Year Constant
Maturity Rate cannot be determined for any Quarterly
Period, then the Effective Rate for such Quarterly
Period will be equal to the higher of whichever two of
such rates can be so determined;
(ii) only one of the Treasury Bill Rate, the Ten
Year Constant Maturity Rate or the Thirty Year Constant
Maturity Rate can be determined for any Quarterly
Period then the Effective Rate for such Quarterly
Period will be equal to whichever such rate can be so
determined; or
(iii) none of the Treasury Bill Rate, the Ten
Year Constant Maturity Rate or the Thirty Year Constant
Maturity Rate can be determined for any Quarterly
Period then the Effective Rate for the preceding
Quarterly Period will be continued for such Quarterly
Period.
Except as described below in this paragraph, the
"Treasury Bill Rate" for each Quarterly Period will be the
arithmetic average of the two most recent weekly per annum
market discount rates (or the one weekly per annum market
discount rate, if only one such rate is published during the
relevant Calendar Period (as defined below)) for three-month
U.S. Treasury bills, as published weekly by the Federal
Reserve Board (as defined below) during the Calendar Period
immediately preceding the last ten calendar days preceding
the Quarterly Period for which the dividend rate on the
Series B Preferred Securities is being determined. In the
event that the Federal Reserve Board does not publish such a
weekly per annum market discount rate during any such
Calendar Period, then the Treasury Bill Rate for such
Quarterly Period will be the arithmetic average of the two
most recent weekly per annum market discount rates (or the
one weekly per annum market discount rate, if only one such
rate is published during the relevant Calendar Period) for
three-month U.S. Treasury bills, as published weekly during
such Calendar Period by any Federal Reserve Bank or by any
U.S. Government department or agency selected by the
Company. In the event that a per annum market discount rate
for three-month U.S. Treasury bills is not published by the
Federal Reserve Board or by any Federal Reserve Bank or by
any U.S. Government department or agency during such
Calendar Period, then the Treasury Bill Rate for such
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Quarterly Period will be the arithmetic average of the two
most recent weekly per annum market discount rates (or the
one weekly per annum market discount rate, if only one such
rate is published during the relevant Calendar Period) for
all of the U.S. Treasury bills then having remaining
maturities of not less than 80 nor more than 100 days, as
published during such Calendar Period by the Federal Reserve
Board or, if the Federal Reserve Board does not publish such
rates, by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Company. In the event
that the Company determines in good faith that for any
reason no such U.S. Treasury bill rates are published as
provided above during such Calendar Period then the Treasury
Bill Rate for such Quarterly Period will be the arithmetic
average of the per annum market discount rates based upon
the closing bids during such Calendar Period for each of the
issues of marketable non-interest-bearing U.S. Treasury
securities with a remaining maturity of not less than 80 nor
more than 100 days from the date of each such quotation, as
chosen and quoted daily for each business day in New York
City (or less frequently if daily quotations are not
generally available) to the Company by at least three
recognized dealers in U.S. Government securities selected by
the Company. In the event that the Company determines in
good faith that for any reason the Company cannot determine
the Treasury Bill Rate for any Quarterly Period as provided
above in this paragraph, the Treasury Bill Rate for such
Quarterly Period will be the arithmetic average of the per
annum market discount rates based upon the closing bids
during such Calendar Period for each of the issues of
marketable interest-bearing U.S. Treasury securities with a
remaining maturity of not less than 80 nor more than 100
days, as chosen and quoted daily for each business day in
New York City (or less frequently if daily quotations are
not generally available) to the Company by at least three
recognized dealers in U.S. Government securities selected by
the Company.
Except as described below in this paragraph, the "Ten
Year Constant Maturity Rate" for each Quarterly Period will
be the arithmetic average of the two most recent weekly per
annum Ten Year Average Yields (as defined below) (or the one
weekly per annum Ten Year Average Yield, if only one such
yield is published during the relevant Calendar Period), as
published weekly by the Federal Reserve Board during the
Calendar Period immediately preceding the last ten calendar
days preceding the Quarterly Period for which the dividend
rate on the Series B Preferred Securities is being
determined. In the event that the Federal Reserve Board
does not publish such a weekly per annum Ten Year Average
Yield during such Calendar Period, then the Ten Year
Constant Maturity Rate for such Quarterly Period will be the
arithmetic average of the two most recent weekly per annum
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Ten Year Average Yields (or the one weekly per annum Ten
Year Average Yield, if only one such yield is published
during the relevant Calendar Period), as published weekly
during such Calendar Period by any Federal Reserve Bank or
by any U.S. Government department or agency selected by the
Company. In the event that a per annum Ten Year Average
Yield is not published by the Federal Reserve Board or by
any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the
Ten Year Constant Maturity Rate for such Quarterly Period
will be the arithmetic average of the two most recent weekly
per annum average yields to maturity (or the one weekly per
annum average yield to maturity, if only one such yield is
published during the relevant Calendar Period) for all of
the actively traded marketable U.S. Treasury fixed interest
rate securities (other than Special Securities (as defined
below)) then having remaining maturities of not less than
eight nor more than twelve years, as published during such
Calendar Period by the Federal Reserve Board or, if the
Federal Reserve Board does not publish such yields, by any
Federal Reserve Bank or by any U.S. Government department or
agency selected by the Company. In the event that the
Company determines in good faith that for any reason the
Company cannot determine the Ten Year Constant Maturity Rate
for any Quarterly Period as provided above in this
paragraph, then the Ten Year Constant Maturity Rate for such
Quarterly Period will be the arithmetic average of the per
annum average yields to maturity based upon the closing bids
during such Calendar Period for each of the issues of
actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) with a final
maturity date not less than eight nor more than twelve years
from the date of each such quotation, as chosen and quoted
daily for each business day in New York City (or less
frequently if daily quotations are not generally available)
to the Company by at least three recognized dealers in U.S.
Government securities selected by the Company.
Except as described below in this paragraph, the
"Thirty Year Constant Maturity Rate" for each Quarterly
Period will be the arithmetic average of the two most recent
weekly per annum Thirty Year Average Yields (as defined
below) (or the one weekly per annum Thirty Year Average
Yield, if only one such yield is published during the
relevant Calendar Period), as published weekly by the
Federal Reserve Board during the Calendar Period immediately
preceding the last ten calendar days preceding the Quarterly
Period for which the dividend rate on the Series B Preferred
Securities is being determined. In the event that the
Federal Reserve Board does not publish such a weekly per
annum Thirty Year Average Yield during such Calendar Period,
then the Thirty Year Constant Maturity Rate for such
Quarterly Period will be the arithmetic average of the two
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most recent weekly per annum Thirty Year Average Yields (or
the one weekly per annum Thirty Year Average Yield, if only
one such yield is published during the relevant Calendar
Period), as published weekly during such Calendar Period by
any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Company. In the event
that a per annum Thirty Year Average Yield is not published
by the Federal Reserve Board or by any Federal Reserve Bank
or by any U.S. Government department or agency during such
Calendar Period, then the Thirty Year Constant Maturity Rate
for such Quarterly Period will be the arithmetic average of
the two most recent weekly per annum average yields to
maturity (or the one weekly per annum average yield to
maturity, if only one such yield is published during the
relevant Calendar Period) for all of the actively traded
marketable U.S. Treasury fixed interest rate securities
(other than Special Securities) then having remaining
maturities of not less than twenty-eight nor more than
thirty years, as published during such Calendar Period by
the Federal Reserve Board or, if the Federal Reserve Board
does not publish such yields, by any Federal Reserve Bank or
by any U.S. Government department or agency selected by the
Company. In the event that the Company determines in good
faith that for any reason the Company cannot determine the
Thirty Year Constant Maturity Rate for any Quarterly Period
as provided above in this paragraph, then the Thirty Year
Constant Maturity Rate for such Quarterly Period will be the
arithmetic average of the per annum average yields to
maturity based upon the closing bids during such Calendar
Period for each of the issues of actively traded marketable
U.S. Treasury fixed interest rate securities (other than
Special Securities) with a final maturity date not less than
twenty-eight nor more than thirty years (or, in the absence
of which, having maturities of not less than twenty-five
years or, in the further absence of which, twenty years)
from the date of each such quotation, as chosen and quoted
daily for each business day in New York City (or less
frequently if daily quotations are not generally available)
to the Company by at least three recognized dealers in U.S.
Government securities selected by the Company.
The Treasury Bill Rate, the Ten Year Constant Maturity
Rate and the Thirty Year Constant Maturity Rate will each be
rounded to the nearest five hundredths of a percent.
The Applicable Rate with respect to each Quarterly
Period will be calculated as promptly as practicable by the
Company according to the appropriate method described above.
The Company will cause each Applicable Rate to be published
in a newspaper of general circulation in New York City or to
be communicated by a comparable method (as determined in
good faith by the Company) before the commencement of the
Quarterly Period to which it applies.
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As used above, the term "Calendar Period" means a
period of fourteen calendar days; the term "Federal Reserve
Board" means the Board of Governors of the Federal Reserve
System; the term "Quarterly Period" means the three-month
period ending November 30, 1994 and each three-month period
ending February 28 (or February 29), May 31, August 31 and
November 30 thereafter; the term "Special Securities" means
securities which can, at the option of the holder, be
surrendered at face value in payment of any Federal estate
tax or which provide tax benefits to the holder and are
priced to reflect such tax benefits or which were originally
issued at a deep or substantial discount; the term "Ten Year
Average Yield" means the average yield to maturity for
actively traded marketable U.S. Treasury fixed interest rate
securities (adjusted to constant maturities of ten years);
and the term "Thirty Year Average Yield" means the average
yield to maturity for actively traded marketable U.S.
Treasury fixed interest rate securities (adjusted to
constant maturities of thirty years).
The amount of dividends payable for any full monthly
dividend period shall be computed on the basis of twelve 30-
day months and a 360-day year and, for any period shorter
than a full monthly dividend period, shall be computed on
the basis of the actual number of days elapsed in such
period. The Company shall only pay dividends to the extent
it has funds legally available to make such payments.
(c) Dividends on the Series B Preferred
Securities shall be declared by the Managing Members to the
extent that the Managing Members reasonably anticipate that
at the time of payment the Company will have, and must be
paid by the Company to the extent that at the time of
proposed payment it has, (i) funds legally available for the
payment of such dividends and (ii) cash on hand sufficient
to permit such payments.
(d) Dividends declared on the Series B Preferred
Securities shall be payable to the record holders thereof as
they appear on the register for the Series B Preferred
Securities maintained by or on behalf of the Company on the
relevant record date, which shall be one Business Day prior
to the relevant payment date. Subject to any applicable
laws and regulations, each such payment shall be made
through the facilities of DTC. If any date on which
dividends are payable on the Series B Preferred Securities
is not a Business Day, then the payment of the dividend
payable on such date shall be made on the next succeeding
day which is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if
such Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding
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Business Day, in each case with the same force and effect as
if made on such date.
(e) Except as described in the Operating
Agreement and in this Written Action, the Series B Preferred
Securities shall have no other right to participate in the
profits of the Company.
(f) If dividends have not been paid in full on
the Series B Preferred Securities, the Company shall not:
(i) pay, or declare and set aside for payment,
any dividends on the Preferred Interests of any other
series or any other preferred interests of the Company
ranking pari passu with the Series B Preferred
Securities as regards participation in profits of the
Company ("Dividend Parity Securities"), unless the
amount of any dividends declared on any Dividend Parity
Securities is paid on Dividend Parity Securities and
the Series B Preferred Securities on a pro rata basis
on the date such dividends are paid on such Dividend
Parity Securities, so that
(x) (A) the aggregate amount paid as
dividends on the Series B Preferred Securities
bears to (B) the aggregate amount paid as
dividends on Dividend Parity Securities the same
ratio as
(y) (A) the aggregate of all accumulated
arrears of unpaid dividends on the Series B
Preferred Securities bears to (B) the aggregate of
all accumulated arrears of unpaid dividends on
Dividend Parity Securities;
(ii) pay, or declare and set aside for payment,
any dividends on any interests in the Company ranking
junior to the Series B Preferred Securities as to
dividends ("Dividend Junior Securities"); or
(iii) redeem, purchase or otherwise acquire any
Dividend Parity Securities or Dividend Junior
Securities;
until, in each case, such time as all accumulated arrears of
unpaid dividends on the Series B Preferred Securities shall
have been paid in full for all dividend periods terminating
on or prior to, in the case of clauses (i) and (ii), such
payment, and in the case of clause (iii), the date of such
redemption, purchase or other acquisition. For purposes of
the foregoing, so long as the Preferred Interests of any
series are represented by one or more global certificates,
dividends on such series of Preferred Interests shall have
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been paid in full with respect to any dividend payment date
for such series when the amount of dividends payable on such
date has been paid to DTC.
5. Ranking; Liquidation. (a) The Series B Preferred
Securities shall, with respect to dividend rights and rights
on liquidation, dissolution or winding up, rank (i) pari
passu with all other series of Preferred Interests issued by
the Company and (ii) prior to any other interests of the
Company, including the Common Interests. So long as any
Series B Preferred Securities remain outstanding, the
Company shall not issue any interests ranking, as to
participation in the profits or assets of the Company,
senior to the Series B Preferred Securities.
(b) In the event of the liquidation of the
Company, holders of Series B Preferred Securities shall be
entitled to receive for each Series B Preferred Security a
liquidation preference of $25 plus accumulated and unpaid
dividends (whether or not declared) to the date of payment.
Prior to June 30, 1999, payment of such liquidation
preference shall be made by distributing to each holder of
Series B Preferred Securities one or more Series B
Debentures having an aggregate principal amount and accrued
and unpaid interest equal to such liquidation preference.
Such Series B Debentures shall have the terms specified in
Section 7(b) for exchanges of Series B Debentures for Series
B Preferred Securities.
6. Redemption. (a) The Series B Preferred Securities
shall be redeemable at the option of the Company and subject
to the prior consent of ConAgra, in whole or in part from
time to time, on or after June 30, 1999, upon not less than
30 nor more than 60 days' notice, at the Applicable Price
(with the date of any such redemption being a "Redemption
Date"). If a partial redemption would result in a delisting
of the Series B Preferred Securities from the New York Stock
Exchange, the Company may only redeem the Series B Preferred
Securities in whole.
(b) ConAgra shall have the right at any time to
cause ConAgra Capital, upon not less than 30 nor more than
60 days' notice, to redeem the Series B Preferred Securities
at the Applicable Price if ConAgra and ConAgra Capital have
been advised by independent nationally recognized legal
counsel that, as a result of any change in U.S. law as
described in Section 7(a) hereof, there exists more than an
insubstantial risk that ConAgra would be precluded from
deducting the interest on the Series B Debentures for
federal income tax purposes even if the Series B Preferred
Securities were exchanged for the Series B Debentures as
described in Section 7(a) hereof.
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(c) The Series B Preferred Securities shall be
subject to mandatory redemption at the Applicable Price with
the proceeds from the repayment by ConAgra when due or
prepayment by ConAgra of the Series B Debentures, subject to
the provisions in Section 4(f)(iii) hereof. Notwithstanding
the foregoing, the Series B Preferred Securities will not be
subject to mandatory redemption when the Series B Debentures
relating to the Series B Preferred Securities are due if
ConAgra elects to exchange such Series B Debentures for new
debentures or to repay such Debentures and reborrow the
proceeds from such repayment nor will such Series B
Preferred Securities be subject to mandatory redemption if
such Series B Debentures are optionally prepaid and ConAgra
elects to reborrow the proceeds from such prepayment;
provided that ConAgra may not so elect to exchange any such
Series B Debentures or to reborrow the proceeds from any
repayment or prepayment of such Series B Debentures, unless
at the time of each such exchange or reborrowing the Company
owns all of such Series B Debentures and, as determined in
the judgment of the Managing Members and the Company's
financial advisor (selected by the Managing Members and who
shall be unaffiliated with ConAgra and shall be among the 30
largest investment banking firms, measured by total capital,
in the United States at the time new debentures are to be
issued in connection with such exchange or reborrowing), (a)
ConAgra is not bankrupt, insolvent or in liquidation, (b) no
event of default or event which with the giving of notice or
the passage of time would constitute an event of default on
any debenture pertaining to Preferred Securities of any
series has occurred and is continuing, (c) ConAgra has made
timely payments on the repaid Series B Debentures for the
immediately preceding 18 months, (d) the Company is not in
arrears on payments of dividends on the Series B Preferred
Securities, (e) there is then no present reason to believe
ConAgra will be unable to make timely payment of principal
and interest on such new debentures, (f) such new debentures
are being issued on terms, and under circumstances, that are
consistent with those which a lender would then require for
a loan to an unrelated party, (g) such new debentures are
being issued at a rate sufficient to provide payments equal
to or greater than the amount of distributions required
under the Preferred Securities of such series, (h) such new
debentures are being issued for a term that is consistent
with market circumstances and ConAgra's financial condition,
(i) immediately prior to issuing such new debentures, the
senior unsecured long-term debt of ConAgra is (or if no such
debt is outstanding, would be) rated not less than BBB (or
the equivalent) by Standard & Poor's Corporation and Baa1
(or the equivalent) by Moody's Investors Service, Inc. (or
if either of such rating organizations is not then rating
ConAgra's senior unsecured long-term debt, the equivalent of
such rating by any other "nationally recognized statistical
rating organization," as that term is defined by the
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Securities and Exchange Commission for purposes of Rule
436(g)(2) under the Securities Act) and any subordinated
unsecured long-term debt of ConAgra or, if there is no such
debt then outstanding, the Series B Preferred Securities,
are rated not less than BBB- (or the equivalent) by Standard
& Poor's Corporation or Baa3 (or the equivalent) by Moody's
Investors Service, Inc. or the equivalent of either such
rating by any other "nationally recognized statistical
rating organization" and (j) such new debentures will have a
final maturity no later than the one hundredth anniversary
of the first issuance of the Series B Preferred Securities.
(d) The Company may not redeem any Preferred
Interests of any series unless all accumulated arrearages of
unpaid dividends have been paid on all Series B Preferred
Securities for all monthly dividend periods terminating on
or prior to the date of redemption.
(e) If the Company gives a notice of redemption
in respect of the Series B Preferred Securities, then, by
12:00 noon, New York time, on the applicable Redemption
Date, the Company will irrevocably deposit with DTC funds
sufficient to pay the Applicable Price and will give DTC
irrevocable instructions and authority to pay the Applicable
Price to the holders thereof. If notice of redemption shall
have been given and funds deposited as required, then upon
the date of such deposit, all rights of holders of the
Series B Preferred Securities so called for redemption will
cease, except the right of the holders of such Series B
Preferred Securities to receive the Applicable Price, but
without interest, and such interests will cease to be
outstanding. If any date on which any payment in respect of
the redemption of Series B Preferred Securities is not a
Business Day, then payment of the Applicable Price payable
on such date will be made on the next succeeding day which
is a Business Day (and without any interest or other payment
in respect of any such delay), except that, if such Business
Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day. If payment
of the Applicable Price in respect of the Series B Preferred
Securities is improperly withheld or refused and not paid
either by the Company or by ConAgra pursuant to the
Guarantee, dividends on such Series B Preferred Securities
will continue to accrue, at the applicable rate from time to
time, from the Redemption Date originally established by the
Company for such interests to the date such Applicable Price
is actually paid, in which case the actual payment date will
be the date fixed for redemption for purposes of calculating
the Applicable Price.
(f) Subject to the foregoing and applicable law
(including, without limitation, U.S. federal securities
laws) ConAgra or its subsidiaries may at any time and from
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time to time purchase outstanding Series B Preferred
Securities by tender, in the open market or by private
agreement.
7. Exchange. (a) ConAgra may cause the Company, upon
not less than 30 nor more than 60 days' notice, to exchange
the Series B Preferred Securities for Series B Debentures
having an aggregate principal amount and accrued and unpaid
interest equal to the Applicable Price and an adjustable
interest rate thereon equal to the adjustable dividend rate
on the Series B Preferred Securities if ConAgra and the
Company have been advised by independent nationally
recognized legal counsel that, as a result of any change
after June 1, 1994 in U.S. law (including the enactment or
imminent enactment of any legislation, the publication of
any judicial decisions or regulatory rulings or a change in
the official position or in the interpretation of law or
regulations), there exists more than an insubstantial risk
that (i) ConAgra will be precluded from deducting the
interest on the Series B Debentures for federal income tax
purposes or (ii) the Company is subject to federal income
tax with respect to the interest received on the Series B
Debentures.
(b) Upon exchange of the Series B Preferred
Securities for Series B Debentures, (i) the Series B
Debentures shall no longer be subject to mandatory
prepayment upon the dissolution, winding up or liquidation
of the Company, (ii) the Series B Debentures shall not be
subject to an election by ConAgra to exchange the Series B
Debentures for new debentures or to repay the Series B
Debentures and reborrow the proceeds from such repayment,
(iii) ConAgra shall use its best efforts to have the Series
B Debentures listed on the same exchange on which the Series
B Preferred Securities are listed, (iv) the Subordinated
Indenture or Series B Debentures may, thereafter, be
modified or amended only with the consent of the holders of
not less than 66 2/3% in principal amount of the Debentures
at the time outstanding (excluding any such Debentures held
by ConAgra or an affiliate of ConAgra), provided, however,
that no such modification or amendment may, without the
consent of the holder of each Series B Debenture affected
thereby, (a) extend the stated maturity of the principal of
any Series B Debenture, or reduce the principal amount
thereof or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption
thereof or change the currency in which the principal
thereof or interest thereon is payable or impair the right
to institute suit for the enforcement of any payment on any
Series B Debenture when due or (b) reduce the aforesaid
percentage in principal amount of Debentures of any series
the consent of the holders of which is required for any such
modification, (v) ConAgra's obligation to pay Additional
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Interest (as defined in the Series B Debentures), other than
Additional Interest, if any, accrued and unpaid to such date
of exchange, shall cease and (vi) the provisions relating to
Events of Default contained in Section 5.1 of the
Subordinated Indenture (as in effect on the date hereof)
rather than those contained in the Series B Debentures shall
apply.
(c) After the date fixed for any such exchange,
(i) the Series B Preferred Securities will no longer be
deemed to be outstanding, (ii) DTC or its nominee, as the
record holder of the Series B Preferred Securities, will
exchange the global certificate or certificates representing
the Series B Preferred Securities for a registered global
certificate or certificates representing the Series B
Debentures to be delivered upon such exchange and (iii) any
certificates representing Series B Preferred Securities not
held by DTC or its nominee will be deemed to represent
Series B Debentures having a principal amount equal to the
stated liquidation preference of such Series B Preferred
Securities until such certificates are presented to the
Company or its agent for exchange.
8. No Sinking Fund. The Series B Preferred
Securities shall not be subject to the operation of a
retirement or sinking fund.
9. Appointment of Trustee in Certain Circumstances.
The provisions of Section 3.02(f) of the Operating Agreement
shall apply to the Series B Preferred Securities and the
holders of the Series B Preferred Securities shall have the
right to vote for the appointment of a trustee as provided
therein.
10. Meetings. (a) Any required approval of holders
of Series B Preferred Securities may be given at a separate
meeting of such holders convened for such purpose or at a
meeting of interestholders of the Company or pursuant to
written consent. The Company shall cause a notice of any
meeting at which holders of the Series B Preferred
Securities are entitled to vote, or of any matter upon which
action may be taken by written consent of such holders, to
be mailed to each holder of record of the Series B Preferred
Securities. Each such notice will include a statement
setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which
such holders are entitled to vote or of such matters upon
which written consent is sought and (iii) instructions for
the delivery of proxies or consents.
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(b) Notwithstanding that holders of Series B
Preferred Securities are entitled to vote or consent under
any of the circumstances described herein, in the Articles
of Organization or in the Operating Agreement, any of the
Preferred Interests of any series that are owned by ConAgra
or any entity owned more than 50% by ConAgra, either
directly or indirectly, shall not be entitled to vote or
consent and shall, for the purposes of such vote or consent,
be treated as if they were not outstanding.
11. Book-Entry-Only Issuance; The Depository Trust
Company. (a) DTC, New York, New York, will act as
securities depository for the Series B Preferred Securities.
The Series B Preferred Securities will be issued only as
fully-registered securities registered in the name of Cede &
Co. (DTC's partnership nominee).
(b) Redemption notices shall be sent to Cede &
Co. If less then all of the Series B Preferred Securities
are being redeemed, such securities shall be redeemed in
accordance with DTC's then current practice.
(c) DTC may discontinue providing its services as
securities depository with respect to the Series B Preferred
Securities by giving reasonable notice to the Company as
provided in the agreement between the Company and DTC.
Under such circumstances, if a successor securities
depository is not obtained, the Company at its expense shall
cause certificates for Series B Preferred Securities to be
printed and delivered as promptly as practicable.
12. Guarantee of Liabilities. It shall be a condition
precedent to the issuance of the Series B Preferred
Securities that ConAgra has executed the Guarantee and the
Expense Agreement.
13. Registrar and Transfer Agent. The Company hereby
appoints Chemical Bank as its initial registrar and transfer
agent for the Series B Preferred Securities.
14. Governing Law. This Written Action shall be
governed by and construed in accordance with the laws of the
State of Iowa without giving effect to the principles of
conflict of laws thereof.
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IN WITNESS WHEREOF, the undersigned Managing
Members of the Company have hereto set their hands as of the
day and year first above written.
CP NEBRASKA, INC.
By: /s/ James P. O'Donnell
Name: James P. O'Donnell
Title: Vice President,
Finance and
Treasurer
HW NEBRASKA, INC.
By: /s/ James P. O'Donnell
Name: James P. O'Donnell
Title: Vice President,
Finance and
Treasurer
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