Terms of the
9% Series A Cumulative Preferred Securities
DATED AS OF April 20, 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 A Preferred
Security, the stated liquidation preference of such Series A
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 A 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 A Preferred Securities and other Preferred
Interests of the Company.
"Series A Debentures" means the $100,000,000
aggregate principal amount (or up to $115,000,000 aggregate
principal amount if and to the extent the underwriters'
over-allotment option granted by the Company in the
Underwriting Agreement is exercised) of ConAgra's 9% Series
A Debentures issued pursuant to the Subordinated Indenture.
"Subordinated Indenture" means the Indenture,
dated as of March 10, 1994 and the First Supplemental
Indenture dated April 20, 1994 and the Second Supplemental
Indenture dated April 20, 1994, between ConAgra and First
Trust National Association, as trustee.
"Underwriting Agreement" means the Underwriting
Agreement dated as of April 20, 1994, among ConAgra, the
Company, Smith Barney Shearson Inc., Merrill Lynch, Pierce,
Fenner & Smith Incorporated as representatives of the
several underwriters named therein.
2. Designation. 4,000,000 Series Preferred
Membership Interests (or up to 4,600,000 Series Preferred
Membership Interests if and to the extent the underwriters'
over-allotment option granted by the Company in the
Underwriting Agreement is exercised) with a liquidation
preference of $25 per interest are hereby authorized and
designated as "9% Series A Cumulative Preferred Securities"
(hereinafter called the "Series A 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 A Preferred Securities shall
have, with respect to such Series A 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 A Preferred Securities shall be cumulative.
Dividends shall accrue from April 27, 1994 and shall be
payable monthly in arrears on the last day of each calendar
month of each year, commencing on May 31, 1994.
(b) The dividend payable on the Series A
Preferred Securities shall be fixed at a rate of 9% per
annum of the liquidation preference of the Series A
Preferred Securities. 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
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dividends to the extent it has funds legally available to
make such payments.
(c) Dividends on the Series A 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 A Preferred
Securities shall be payable to the record holders thereof as
they appear on the register for the Series A 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 A 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
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 A 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 A 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 A 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 A 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 A Preferred Securities
bears to (B) the aggregate amount paid as
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dividends on Dividend Parity Securities the same
ratio as
(y) (A) the aggregate of all accumulated
arrears of unpaid dividends on the Series A
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 A 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 A 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
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 A 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 A 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 A Preferred Securities.
(b) In the event of the liquidation of the
Company, holders of Series A Preferred Securities shall be
entitled to receive for each Series A Preferred Security a
liquidation preference of $25 plus accumulated and unpaid
dividends (whether or not declared) to the date of payment.
Prior to May 31, 1999, payment of such liquidation
preference shall be made by distributing to each holder of
Series A Preferred Securities one or more Series A
Debentures having an aggregate principal amount and accrued
and unpaid interest equal to such liquidation preference.
Such Series A Debentures shall have the terms specified in
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Section 7(b) for exchanges of Series A Debentures for Series
A Preferred Securities.
6. Redemption. (a) The Series A 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 May 31, 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 A Preferred Securities from the New York Stock
Exchange, the Company may only redeem the Series A 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 A 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 A Debentures for
federal income tax purposes even if the Series A Preferred
Securities were exchanged for the Series A Debentures as
described in Section 7(a) hereof.
(c) The Series A 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 A Debentures, subject to
the provisions in Section 4(f)(iii) hereof. Notwithstanding
the foregoing, the Series A Preferred Securities will not be
subject to mandatory redemption when the Series A Debentures
relating to the Series A Preferred Securities are due if
ConAgra elects to exchange such Series A Debentures for new
debentures or to repay such Debentures and reborrow the
proceeds from such repayment nor will such Series A
Preferred Securities be subject to mandatory redemption if
such Series A 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 A Debentures or to reborrow the proceeds from any
repayment or prepayment of such Series A Debentures, unless
at the time of each such exchange or reborrowing the Company
owns all of such Series A 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
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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 A Debentures for the
immediately preceding 18 months, (d) the Company is not in
arrears on payments of dividends on the Series A 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
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 A 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 A 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 A 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 A 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
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the date of such deposit, all rights of holders of the
Series A Preferred Securities so called for redemption will
cease, except the right of the holders of such Series A
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 A 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 A 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 A Preferred Securities
will continue to accrue, at the then applicable rate, 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
time to time purchase outstanding Series A 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 A Preferred Securities for Series A Debentures
having an aggregate principal amount and accrued and unpaid
interest equal to the Applicable Price and an interest rate
thereon equal to the dividend rate on the Series A Preferred
Securities if ConAgra and the Company have been advised by
independent nationally recognized legal counsel that, as a
result of any change after April 20, 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 A
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 A Debentures.
(b) Upon exchange of the Series A Preferred
Securities for Series A Debentures, (i) the Series A
Debentures shall no longer be subject to mandatory
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prepayment upon the dissolution, winding up or liquidation
of the Company, (ii) the Series A Debentures shall not be
subject to an election by ConAgra to exchange the Series A
Debentures for new debentures or to repay the Series A
Debentures and reborrow the proceeds from such repayment,
(iii) ConAgra shall use its best efforts to have the Series
A Debentures listed on the same exchange on which the Series
A Preferred Securities are listed, (iv) the Subordinated
Indenture or Series A 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 A Debenture affected
thereby, (a) extend the stated maturity of the principal of
any Series A 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 A 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
Interest (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 A
Debentures shall apply.
(c) After the date fixed for any such exchange,
(i) the Series A Preferred Securities will no longer be
deemed to be outstanding, (ii) DTC or its nominee, as the
record holder of the Series A Preferred Securities, will
exchange the global certificate or certificates representing
the Series A Preferred Securities for a registered global
certificate or certificates representing the Series A
Debentures to be delivered upon such exchange and (iii) any
certificates representing Series A Preferred Securities not
held by DTC or its nominee will be deemed to represent
Series A Debentures having a principal amount equal to the
stated liquidation preference of such Series A Preferred
Securities until such certificates are presented to the
Company or its agent for exchange.
8. No Sinking Fund. The Series A Preferred
Securities shall not be subject to the operation of a
retirement or sinking fund.
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9. Appointment of Trustee in Certain Circumstances.
The provisions of Section 3.02(f) shall apply to the Series
A Preferred Securities and the holders of the Series A
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 A 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 A 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 A 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.
(b) Notwithstanding that holders of Series A
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 A Preferred Securities.
The Series A 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 A 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 A 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 A Preferred Securities to be
printed and delivered as promptly as practicable.
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12. Guarantee of Liabilities. It shall be a condition
precedent to the issuance of the Series A Preferred
Securities that ConAgra execute 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 A 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.
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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