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CONAGRA, INC.
AND
FIRST TRUST NATIONAL ASSOCIATION
Trustee
Fourth Supplemental Indenture
Dated as of June 1, 1994
Providing for Issuance of
Series BB Debentures due 2043
in connection with the issuance by
ConAgra Capital, L.C. of its
Common Interests
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FOURTH SUPPLEMENTAL INDENTURE (the "Supplemental
Indenture"), dated as of June 1, 1994, between CONAGRA,
INC., a Delaware corporation (the "Issuer"), and FIRST TRUST
NATIONAL ASSOCIATION, a national banking corporation (the
"Trustee").
W I T N E S S E T H :
WHEREAS, in accordance with Sections 2.1, 2.3 and
8.1 of the Subordinated Indenture dated as of March 10,
1994, between the Issuer and the Trustee (the "Indenture"),
this Supplemental Indenture is being entered into in order
to establish the form and terms of a series of Securities to
be issued in connection with the issuance by ConAgra
Capital, L.C., an Iowa limited liability company
("Capital"), of its Common Interests (the "Common
Interests");
WHEREAS, the Issuer has duly authorized the
execution and delivery of this Supplemental Indenture to
provide, among other things, for the authentication,
delivery and administration of such series of Securities;
WHEREAS, all things necessary to make this
Supplemental Indenture a valid supplement to Indenture
according to its terms and the terms of the Indenture have
been done;
NOW, THEREFORE:
In consideration of the premises and the purchases
of such series of Securities by the holders thereof, the
Issuer and the Trustee mutually covenant and agree for the
equal and proportionate benefit of the respective holders
from time to time of such series of Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined in the
Indenture. All capitalized terms used herein without
definition shall have the meanings specified in the
Indenture.
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SECTION 1.2 Additional Terms Defined. As used in
this Supplemental Indenture, the additional terms set forth
below shall have the following meanings:
"Additional Interest" shall have the meaning set
forth in Section 2.8 hereof.
"Common Interests" shall mean Common Membership
Interests as defined in the Operating Agreement.
"Event of Default" shall (a) prior to a Preferred
Security Exchange, have the meaning set forth in Section
2.12 hereof and (b) on and after a Preferred Security
Exchange, have the meaning set forth in Section 5.1 of the
Indenture.
"Expense Agreement" means the Agreement as to
Expenses and Liabilities dated as of April 20, 1994 between
the Issuer and Capital.
"Guarantee" means the Payment and Guarantee
Agreement dated as of April 20, 1994, executed and delivered
by the Issuer for the benefit of the holders from time to
time of the Common Interests and other Preferred Interests
of Capital.
"Managing Members" means HW Nebraska, Inc., a
Nebraska corporation, and CP Nebraska, Inc., a Nebraska
corporation, as managing members of Capital.
"Operating Agreement" means the Limited Liability
Company Operating Agreement dated as of March 11, 1994 by
and among the Managing Members.
"Preferred Interests" means Series Preferred
Membership Interests as defined in the Operating Agreement.
"Preferred Security Exchange" means an exchange of
Series B Debentures for Series B Preferred Securities
pursuant to Section 7 of the Written Action.
"Series BB Debentures" shall mean the Series BB
Adjustable Rate Debentures as defined in the Fourth
Supplemental Indenture dated June 1, 1994.
"Series B Preferred Securities" shall mean Series
B Adjustable Rate Cumulative Preferred Securities as defined
in the Written Action.
"Underwriting Agreement" means the underwriting
agreement dated as of June 1, 1994, among the Issuer,
Capital and Smith Barney Shearson Inc. and Merrill Lynch,
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Pierce, Fenner & Smith Incorporated as representatives of
the several underwriters named therein.
"Written Action" means the Written Action of the
Managing Members Pursuant to Section 3.02 of the Operating
Agreement dated June 1, 1994, establishing the terms of the
Preferred Interests relating to the Series BB Debentures.
ARTICLE TWO
ISSUANCE OF Series BB DEBENTURES
SECTION 2.1 Issuance of Series BB Debentures.
There shall be a series of Securities designated "Series BB
Adjustable Rate Debentures due 2043" (the "Series BB
Debentures") and such Series BB Debentures shall have the
terms set forth in this Article Two in accordance with the
provisions of the Indenture and this Supplemental Indenture.
SECTION 2.2 Limitation on Aggregate Principal
Amount. The aggregate principal amount of the Series BB
Debentures which may be authenticated and delivered shall be
limited to $46,519,000.
SECTION 2.3 Maturity of the Series BB Debentures.
Subject to the provisions of Sections 2.4 and 2.5, the
entire principal amount of the Series BB Debentures shall
become due and payable, together with any accrued and unpaid
interest thereon, including Additional Interest, if any, on
the earlier of (a) June 30, 2043 (subject to the Issuer's
right to exchange the Series BB Debentures for new
debentures pursuant to Section 2.6) and (b) the date upon
which Capital shall be dissolved, wound-up or liquidated;
provided that the parenthetical to clause (a) and the
entirety of clause (b) shall be inapplicable on and after
the date of any Preferred Security Exchange.
SECTION 2.4 Mandatory Prepayment of Series BB
Debentures upon redemption of Common Interests.
Notwithstanding the provisions of Section 2.3, if Capital
redeems the Preferred Interests in accordance with the terms
thereof, the Series BB Debentures shall become due and
payable in a principal amount together with any and all
accrued interest thereon, including Additional Interest, if
any. Any payment pursuant to this Section 2.4 shall be made
prior to 12:00 noon, New York time, on the date fixed for
such redemption or at such other time on such earlier date
as Capital and the Issuer shall agree.
SECTION 2.5 Optional Prepayment. Upon not less
than 30 nor more than 60 days' prior notice, the Issuer
shall have the right to prepay the Series BB Debentures
(together with any accrued but unpaid interest, including
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Additional Interest, if any, on the portion being prepaid),
without premium or penalty,
(i) in whole or in part, as the case may be, at
any time on or after June 30, 1999; and
(ii) in whole at any time if the Issuer and
Capital have been advised by independent nationally
recognized legal counsel that, as a result of any
change after June 1, 1994 in United States 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 the Issuer will be precluded from deducting
the interest on the Series BB Debentures for federal
income tax purposes.
SECTION 2.6 Exchange of Series BB Debentures for
New Debentures. Notwithstanding the provisions of Section
2.3, prior to a Preferred Security Exchange, in lieu of
repaying the Series BB Debentures when due, the Issuer may
elect to exchange such Series BB Debentures for new
debentures with an equal aggregate principal amount issued
under the Indenture with terms substantially identical to
the Series BB Debentures; provided that the Issuer may not
so elect to exchange any Series BB Debentures, unless at the
time of such exchange Capital owns all of the Series BB
Debentures and, as determined in the judgment of the
Managing Members and Capital's financial advisor (selected
by the Managing Members and who shall be unaffiliated with
the Issuer and shall be among the 30 largest investment
banking firms, measured by total capital, in the United
States at the time of such exchange), (a) the Issuer is not
bankrupt, insolvent or in liquidation, (b) no Event of
Default or event that with the giving of notice or the
passage of time would constitute an Event of Default on any
Securities pertaining to Preferred Interests of any series,
has occurred and is continuing, (c) the Issuer has made
timely payments on the Series BB Debentures for the
immediately preceding 18 months, (d) Capital is not in
arrears on payments of distributions on the Series B
Preferred Securities, (e) there is then no present reason to
believe the Issuer 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 Common Interests, (h) such
debentures are being issued for a term that is consistent
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with market circumstances and the Issuer's financial
condition, (i) immediately prior to issuing such new
debentures, the senior unsecured long-term debt of the
Issuer 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 the Issuer'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 Commission for
purposes of Rule 436(g)(2) under the Securities Act of 1933,
as amended) and any subordinated unsecured long-term debt of
the Issuer or, if there is no such debt then outstanding,
the Preferred Interests, 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 issuance of the Preferred
Interests of the first series issued.
SECTION 2.7 Denomination and Interest on the
Series BB Debentures. (a) The Series BB Debentures shall
be issuable as Registered Securities in denominations of $25
and any multiple thereof.
(b) The Series BB Debentures shall bear interest
at a rate equal to 7.06% per annum from June 8, 1994 to and
including August 31, 1994 and will bear interest for each
monthly interest period thereafter at a rate per annum equal
to the Applicable Interest Rate in effect for the Quarterly
Period in which such interest period occurs until the
principal amount of the Series B Debentures has been paid or
duly made available for payment.
Except as provided below in this paragraph, the
"Applicable Interest 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 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 Issuer 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
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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 interest rate on the
Series BB Debenture 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 Issuer. 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 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 Issuer. In the event that the Issuer determines in
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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 Issuer by at least three recognized dealers in U.S.
Government securities selected by the Issuer. In the event
that the Issuer determines in good faith that for any reason
the Issuer 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
Issuer by at least three recognized dealers in U.S.
Government securities selected by the Issuer.
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 interest
rate on the Series BB Debenture 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 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 Issuer. 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
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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 Issuer. In the event that the Issuer determines in
good faith that for any reason the Issuer 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 Issuer by at least three
recognized dealers in U.S. Government securities selected by
the Issuer.
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 interest rate on the Series BB
Debenture 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
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 Issuer. 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
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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
Issuer. In the event that the Issuer determines in good
faith that for any reason the Issuer 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 Issuer by at least three recognized dealers in U.S.
Government securities selected by the Issuer.
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 Interest Rate with respect to each
Quarterly Period will be calculated as promptly as
practicable by the Issuer according to the appropriate
method described above.
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
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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).
To the extent allowed by law, the Issuer will also pay
interest on overdue installments of interest at the rate
used to compute such installments. The amount of interest
payable for any full monthly interest 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
interest period, shall be computed on the basis of the
actual number of days elapsed in such period. Such interest
shall be payable monthly on the last day of each calendar
month (an "Interest Payment Date") commencing on June 30,
1994 to the holder or holders of the Series BB Debenture on
the relevant record date (each, a "Record Date"), which
shall be one Business Day prior to the relevant Interest
Payment Date. If Interest Payment Date is not a Business
Day, then payment of the interest 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 is in the next
succeeding calendar year, such payment shall be made on the
immediately preceding Business Day (and the Record Date for
such Interest Payment Date shall be one Business Day prior
to the date on which payment is to be made), in each case
with the same force and effect as if made on such date.
SECTION 2.8 Additional Interest. If at any time
following the issuance of the Common Interests, Capital
shall be required to pay, with respect to its income derived
from the interest payments on the Series BB Debentures, any
amounts, for or on account of any taxes, duties, assessments
or governmental charges of whatever nature imposed by the
United States or any other taxing authority, then, in any
such case, the Issuer will pay as interest such additional
amounts ("Additional Interest") as may be necessary in order
that the net amounts received and retained by Capital after
the payment of such taxes, duties, assessments or
governmental charges shall result in Capital's having such
funds as it would have had in the absence of the payment of
such taxes, duties, assessments or governmental charges.
SECTION 2.9 Extension of Interest Period.
Notwithstanding the provisions of Section 2.7 hereof, the
Issuer shall have the right at any time or times during the
term of the Series BB Debentures, so long as the Issuer is
not in default in the payment of interest under any of the
Securities, to extend the interest payment period for the
Series BB Debentures up to 18 months; provided that at the
end of such period the Issuer shall pay all installments of
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interest then accrued and unpaid (together with interest
thereon at the rate used to compute such installments to the
extent permitted by applicable law); provided further that,
during any such extended interest period, neither the Issuer
nor any majority owned subsidiary of the Issuer shall pay or
declare any dividends on, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of its
capital stock (other than payments to redeem common share
purchase rights under the Issuer's shareholder rights plan
dated July 10, 1986, as amended, or to declare a dividend of
similar share purchase rights in the future); and provided
further that any such extended interest period may only be
selected with respect to the Series BB Debentures if an
extended interest period of identical length is
simultaneously selected for all Securities. Prior to the
termination of any such extended interest payment period for
the Series BB Debentures, the Issuer may further extend the
interest payment period for the Series BB Debentures;
provided that such extended interest payment period for the
Series BB Debentures together with all such further
extensions thereof, may not exceed 18 months; and provided
further that any such further extended interest period may
only be selected with respect to the Series BB Debentures if
a further extended interest period of identical length is
simultaneously selected for all Securities. Following the
termination of any extended interest payment period, if the
Issuer has paid all accrued and unpaid interest required by
the Series BB Debentures for such period, then the Issuer
shall have the right to again extend the interest payment
period up to 18 months as herein described. The Issuer
shall give Capital notice of its selection of any extended
interest payment period one Business Day prior to the
earlier of (i) the date Capital declares the related
distribution, if any, to holders of the Common Interests or
(ii) the date Capital is required to give notice of the
record or payment date of such related distribution to the
New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Common Interests, but in
any event not less than two Business Days prior to such
record date.
SECTION 2.10 Set-off. Notwithstanding anything
to the contrary herein, prior to any Preferred Security
Exchange the Issuer shall have the right to set off any
payment it is otherwise required to make hereunder with and
to the extent the Issuer has theretofore made, or is
concurrently on the date of such payment making, a payment
under the Guarantee provided Issuer shall not affect any set
off with respect to the Series BB Debentures until all
payments required under the Series BB Debentures have been
made.
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SECTION 2.11 Certain Covenants. (a) So long as
the Preferred Interests remain outstanding, neither the
Issuer nor any majority-owned subsidiary of the Issuer shall
declare or pay any dividend on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of the
Issuer's capital stock or make any guarantee payments with
respect to the foregoing (other than payments under the
Guarantee, payments to redeem common share purchase rights
under the Issuer's shareholder rights plan dated July 10,
1986, as amended, or the declaration of a dividend of
similar share purchase rights in the future) if at such time
the Issuer is in default with respect to its payment
obligations under the Guarantee or the Expense Agreement or
there shall have occurred an Event of Default or any event
that, with the giving of notice or the lapse of time or
both, would constitute an Event of Default under the
Securities.
(b) So long as the Preferred Interests remain
outstanding, the Issuer shall (i) not cause or permit any
Common Interests to be transferred, (ii) maintain direct or
indirect ownership of all outstanding securities in Capital
other than the Preferred Interests of any series and any
other securities permitted to be issued by Capital that
would not cause Capital to become an "investment company"
under the Investment Company Act of 1940, as amended, (iii)
cause at least 21% of the total value of Capital and at
least 21% of all interests in the capital, income, gain,
loss, deduction and credit of Capital to be represented by
Common Interests, (iv) not voluntarily dissolve, windup or
liquidate Capital or either of the Managing Members, (v)
cause HW Nebraska, Inc. and CP Nebraska, Inc. to remain the
Managing Members of Capital and timely perform all of their
respective duties as Managing Members of Capital, and (vi)
use reasonable efforts to cause Capital to remain a limited
liability company and otherwise continue to be treated as a
partnership for U.S. federal income tax purposes; provided
that the Issuer may permit Capital, solely for the purpose
of changing its domicile or avoiding tax consequences
adverse to the Issuer, Capital or holders of Preferred
Interests, to consolidate or merge with or into a limited
liability company or a limited partnership formed under the
laws of any state of the United States of America; provided
that (1) such successor limited liability company or limited
partnership (x) expressly assumes all of the obligations of
Capital under the Common Interests and other series of
Preferred Interests then outstanding or (y) substitutes for
the Common Interests and any series of Preferred Interests
then outstanding other securities having substantially the
same terms as the Common Interests and any such Preferred
Interests (the "Successor Securities") so long as the
Successor Securities rank, with respect to participation in
the profits and assets of such successor entity, at least as
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senior as the Common Interests and any such Preferred
Interests rank, respectively, with respect to participation
in the profits and assets of Capital, (2) the Issuer
expressly acknowledges such successor as the holder of all
of the Series BB Debentures and other series of debentures
issued under the Indenture then outstanding, (3) such merger
or consolidation does not cause any series of Preferred
Interests then outstanding to be delisted by any national
securities exchange or other organization on which such
series is then listed, (4) the holders of Common Interests
and any such Preferred Interests do not suffer any adverse
tax consequences as a result of such merger or
consolidation, (5) such merger or consolidation does not
cause any Preferred Interests to be downgraded by any
"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 of 1933, as amended, and (6) following such
merger or consolidation, neither the Issuer nor such
successor limited liability company or limited partnership
will be an "investment company" for purposes of the
Investment Company Act of 1940, as amended.
(c) So long as the Common Interests remain
outstanding, the Issuer shall not consolidate with or merge
into any other Person or sell its property and assets as, or
substantially as, an entirety to any Person and shall not
permit any Person to merge into or consolidate with the
Issuer unless (i) in case the Issuer shall consolidate with
or merge into another Person or sell its properties and
assets as, or substantially as, an entirety to any Person,
the Person formed by such consolidation or into which the
Issuer is merged or the Person which purchases the
properties and assets of the Issuer as, or substantially, as
an entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of
the United States of America, any State or the District of
Columbia, and shall expressly assume the Issuer's
obligations under the Indenture, this Supplemental Indenture
and the Series BB Debentures and (ii) immediately after
giving effect to the transaction no Event of Default shall
have occurred and be continuing.
(d) So long as the Series B Preferred
Securities remain outstanding, the provisions of Sections
2.11(b) and (c) shall remain in full force and effect
notwithstanding satisfaction and discharge of the Indenture
pursuant to Section 10.1 thereof.
SECTION 2.12 Events of Default; Remedies. Prior
to any Preferred Security Exchange, "Event of Default" means
any one of the following events:
14
(a) failure to pay when due any interest under
any Securities, including any Additional Interest, and such
failure shall continue for a period of 30 days (whether or
not payment is prohibited by the provisions contained in
Article Thirteen of the Indenture or otherwise); provided
that a valid extension of the interest payment period by the
Issuer shall not constitute a default in the payment of
interest for this purpose;
(b) failure to pay when due any principal under
any Securities (whether or not payment is prohibited by the
provisions contained in Article Thirteen of the Indenture or
otherwise);
(c) failure on the part of the Issuer duly to
observe or perform any other covenant or agreement on the
part of the Issuer in respect of the Securities (other than
a covenant or warranty in respect of the Series BB
Debentures a default in the performance or breach of which
is elsewhere in this Section specifically dealt with) or
contained in the Indenture, this Supplemental Indenture or
the Series BB Debentures, and continuance of such default or
breach for a period of 90 days after there as been given, by
registered or certified mail, to the Issuer by the Trustee
or any Holder hereof, a written notice specifying such
failure or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
(d) the dissolution, or winding up or liquidation
of Capital;
(e) a court having jurisdiction in the premises
shall enter a decree or order for relief in respect of the
Issuer or any Consolidated Subsidiary in an involuntary case
under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Issuer or any subsidiary or for any
substantial part of its property or ordering the winding up
or liquidation of its affairs, and such decree or order
shall remain unstayed and in effect for a period of 60
consecutive days; or
(f) the Issuer or any Consolidated Subsidiary
shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter
in effect, or consent to the entry of an order for relief in
an involuntary case under any such law, or consent to the
appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Issuer or any Consolidated
Subsidiary or for any substantial part of its property, or
make any general assignment for the benefit of creditors.
15
If an Event of Default shall occur and be
continuing, then Capital will have the right (i) to declare
the principal of and the interest on the Series BB
Debentures (including any Additional Interest and any
interest subject to an extension election) and any other
amounts payable under the Series BB Debentures to be
forthwith due and payable, whereupon the same shall become
and be forthwith due and payable, without presentment,
demand, protest or other notice of any kind, all of which
are hereby expressly waived, anything in the Indenture, this
Supplemental Indenture or the Series BB Debentures to the
contrary notwithstanding and (ii) to enforce its other
rights hereunder and thereunder. Capital may not accelerate
the principal amount of any Series BB Debenture unless the
principal amount of all Securities is accelerated.
If an Event of Default specified in clauses (d),
(e) or (f) above shall have occurred, the principal of and
interest on the Series BB Debentures shall thereupon and
concurrently become due and payable without presentment,
demand, protest or other notice of any kind, all of which
are hereby expressly waived, anything in the Indenture, this
Supplemental Indenture or the Series BB Debentures to the
contrary notwithstanding.
If an Event of Default specified in clause (a) or
(b) above shall have occurred and be continuing and Capital
shall have failed to pay any distributions on the Common
Interests when due (other than as a result of any valid
extension of the interest payment period by the Issuer for
the Series BB Debentures) or to pay any portion of the
redemption price of the Common Interests called for
redemption, then any Holder of Common Interests may, as set
forth in the terms of the Common Interests, enforce directly
against the Issuer Capital's right hereunder to receive
payments of principal and interest on the Series BB
Debentures relating to such Common Interests but only in an
amount sufficient to enable Capital to pay such
distributions or redemption price.
Except as provided in this Section 2.12, Holders
of Common Interests shall have no rights to enforce any
obligations of the Issuer under the Indenture, this
Supplemental Indenture or the Series BB Debentures.
On and after a Preferred Security Exchange, the
provisions of Article Five of the Indenture, including
without limitation the definition of an "Event of Default",
shall apply to the Series BB Debentures and this Section
2.12 shall be of no further force or effect.
16
ARTICLE THREE
MISCELLANEOUS
SECTION 3.1 Notices. All notices hereunder shall
be deemed given by a party hereto if in writing and
delivered personally or by telegram or facsimile
transmission or by registered or certified mail (return
receipt requested) to the other party at the following
address for such party (or at such other address as shall be
specified by like notice):
If to Capital, to:
ConAgra Capital, L.C.
c/o ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Vice President-Finance
If to the Issuer, to:
ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Vice President-Finance
Any notice given by mail or telegram or facsimile
transmission shall be effective when received.
SECTION 3.2 Assignment; Binding Effect. The
Issuer shall have the right at all times to assign any of
its rights or obligations under the Indenture, this
Supplemental Indenture and the Series BB Debentures to a
direct or indirect wholly owned subsidiary of the
Issuer(other than to any Managing Member); provided that, in
the event of any such assignment, the Issuer shall remain
jointly and severally liable for all such obligations; and
provided further that in the event of an assignment prior to
a Preferred Security Exchange the Issuer shall have received
an opinion of nationally recognized tax counsel that such
assignment shall not constitute a taxable event of the
holders of Common Interests for federal income tax purposes.
Except as otherwise provided in this Supplemental Indenture,
Capital may not assign any of its rights under the Series BB
Debentures without the prior written consent of the Issuer.
Subject to the foregoing, the Indenture, this Supplemental
Indenture and the Series BB Debentures shall be binding upon
and inure to the benefit of the Issuer, Capital, the Holders
from time to time of the Series BB Debentures and their
respective successors and assigns. Except as provided in
this Section 3.2 or elsewhere in this Supplemental
Indenture, none of the Indenture, this Supplemental
17
Indenture nor the Series BB Debentures may be assigned by
either the Issuer or Capital and any assignment by the
Issuer or Capital in contravention of this Section 3.2 shall
be null and void.
SECTION 3.3 Governing Law. THIS SUPPLEMENTAL
INDENTURE AND THE SERIES BB DEBENTURES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
SECTION 3.4 Counterparts. This Supplemental
Indenture may be executed in counterparts, each of which
shall be deemed an original, but all of which taken together
shall constitute one and the same instrument.
Section 3.5 Amendments. This Supplemental
Indenture may be amended as set forth in Article Eight of
the Indenture. Notwithstanding the foregoing, so long as
any Common Interests shall remain outstanding, (i) no
amendment to the provisions of the Indenture, this
Supplemental Indenture or the Series BB Debentures shall be
made that adversely affects the holders of any Common
Interest then outstanding, or terminate the Indenture, this
Supplemental Indenture or the Series BB Debentures, without
in each case the prior consent of holders of 66-2/3% of all
Common Interests then outstanding, unless and until all
Securities and all accrued and unpaid interest thereon
(including Additional Interest, if any) shall have been paid
in full and (ii) without the prior consent of holders of
100% of all Common Interests then outstanding, no amendment
shall be made to the provisions of this clause (ii) of
Section 3.5 or to (a) extend the stated maturity of the
principal of any 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
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.
Any required consent of holders of Common Interest pursuant
to this Section 3.5 shall be in writing or shall be obtained
at a meeting of Common Interest holders.
Section 3.6 Waivers. Capital may not waive
compliance or waive any default in compliance by the Issuer
of any covenant or other term in the Indenture, this
Supplemental Indenture or the Series BB Debentures without
the approval of the same percentage of holders of Common
Interests, obtained in the same manner, as would be required
for an amendment of the Indenture, this Supplemental
Indenture or the Series BB Debentures to the same effect;
18
provided that if no approval would be required for any such
amendment, then Capital may waive such compliance or default
in any manner that the parties shall agree.
Section 3.7 Third Party Beneficiaries. The
Issuer hereby acknowledges that the holders from time to
time of the Common Interests shall expressly be third party
beneficiaries of this Supplemental Indenture.
Section 3.8 Amendment to Indenture. Pursuant to
Section 8.1 of the Indenture, Section 8.2 of the Indenture
is hereby amended for purposes of any and all Securities,
including without limitation the Series BB Debentures,
issued under the Indenture by substituting the phrase "of
not less than 66-2/3%" for the phrase "of not less than a
majority" in the first clause of such Section 8.2.
19
IN WITNESS WHEREOF, the parties hereto have caused
this Supplemental Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and
attested, all as of the date and year first above written.
CONAGRA, INC.
By: /s/ James P. O'Donnell
Name: James P. O'Donnell
Title: Vice President, Finance
and Treasurer
[SEAL]
Attest:
/s/ Sue E. Badberg
Name: Sue E. Badberg
Title: Assistant Secretary
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By: /s/ G. S. Kessler
Name: G.S. Kessler
Title: Assistant Vice President
[SEAL]
Attest:
/s/ Sheryl A. Christopherson
Name: Sheryl A. Christopherson
Title: Assistant Secretary
20
Exhibit A
[Form of Face of Series BB Debenture]
No.
ConAgra, Inc.
Series BB Debentures due 2043
ConAgra, Inc., a Delaware corporation (the
"Issuer"), for value received, hereby promises to pay to
or registered assigns, at the office or agency of the Issuer
in The City of New York, the principal sum of $46,519,000
Dollars on May 31, 1995, in such coin or currency of the
United States of America as at the time of payment shall be
legal tender for the payment of public and private debts,
and to pay interest, at a rate equal to 7.06% per annum from
June 8, 1994 to and including August 31, 1994 and interest
for each monthly interest period thereafter at a rate per
annum equal to the Applicable Interest Rate in effect for
the Quarterly Period in which such interest period occurs
until such principal sum is paid or duly made available for
payment.
Except as provided below in this paragraph, the
"Applicable Interest 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 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 Issuer 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
A-1
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 interest rate on the
Series BB Debentures 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 Issuer. 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 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 Issuer. In the event that the Issuer 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
A-2
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 Issuer by at least three recognized dealers in U.S.
Government securities selected by the Issuer. In the event
that the Issuer determines in good faith that for any reason
the Issuer 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
Issuer by at least three recognized dealers in U.S.
Government securities selected by the Issuer.
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 interest
rate on the Series BB Debentures 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 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 Issuer. 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
A-3
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 Issuer. In the event that the Issuer determines in
good faith that for any reason the Issuer 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 Issuer by at least three
recognized dealers in U.S. Government securities selected by
the Issuer.
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 interest rate on the Series BB
Debentures 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
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 Issuer. 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
A-4
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
Issuer. In the event that the Issuer determines in good
faith that for any reason the Issuer 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 Issuer by at least three recognized dealers in U.S.
Government securities selected by the Issuer.
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 Interest Rate with respect to each
Quarterly Period will be calculated as promptly as
practicable by the Issuer according to the appropriate
method described above.
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).
A-5
To the extent allowed by law, the Issuer will also pay
interest on overdue installments of interest at the rate
used to compute such installments. The amount of interest
payable for any full monthly interest 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
interest period, shall be computed on the basis of the
actual number of days elapsed in such period. Such interest
shall be payable monthly on the last day (an "Interest
Payment Date") of each calendar month, commencing on May 31,
1994 to the holder or holders of this Debenture on the
relevant record date (each, a "Record Date"), which shall be
one Business Day prior to the relevant Interest Payment
Date. If Interest Payment Date is not a Business Day, then
payment of the interest 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 is in the next succeeding
calendar year, such payment shall be made on the immediately
preceding Business Day (and the Record Date for such
Interest Payment Date shall be one Business Day prior to the
date on which payment is to be made), in each case with the
same force and effect as if made on such date. If at any
time following the issuance of the Common Securities,
Capital shall be required to pay, with respect to its income
derived from the interest payments on the Series BB
Debentures, any amounts, for or on account of any taxes,
duties, assessments or governmental charges of whatever
nature imposed by the United States or any other taxing
authority, then, in any such case, the Issuer will pay as
interest such additional amounts ("Additional Interest") as
may be necessary in order that the net amounts received and
retained by Capital after the payment of such taxes, duties,
assessments or governmental charges shall result in
Capital's having such funds as it would have had in the
absence of the payment of such taxes, duties, assessments or
governmental charges. Notwithstanding the forgoing, the
Issuer shall have the right at any time or times during the
term of the Series BB Debentures, so long as the Issuer is
not in default in the payment of interest under any of the
Securities, to extend the interest payment period for the
Series BB Debentures up to 18 months; provided that at the
end of such period the Issuer shall pay all installments of
interest then accrued and unpaid (together with interest
thereon at the rate used to compute such installments to the
extent permitted by applicable law); provided further that,
during any such extended interest period, neither the Issuer
nor any majority owned subsidiary of the Issuer shall pay or
declare any dividends on, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of its
capital stock (other than payments to redeem common share
purchase rights under the Issuer's shareholder rights plan
dated July 10, 1986, as amended, or to declare a dividend of
A-6
similar share purchase rights in the future); and provided
further that any such extended interest period may only be
selected with respect to the Series BB Debentures if an
extended interest period of identical length is
simultaneously selected for all Securities. Prior to the
termination of any such extended interest payment period for
the Series BB Debentures, the Issuer may further extend the
interest payment period for the Series BB Debentures;
provided that such extended interest payment period for the
Series BB Debentures together with all such further
extensions thereof, may not exceed 18 months; and provided
further that any such further extended interest period may
only be selected with respect to the Series BB Debentures if
a further extended interest period of identical length is
simultaneously selected for all Securities. Following the
termination of any extended interest payment period, if the
Issuer has paid all accrued and unpaid interest required by
the Securities for such period, then the Issuer shall have
the right to again extend the interest payment period up to
18 months as herein described. The Issuer shall give
Capital notice of its selection of any extended interest
payment period one Business Day prior to the earlier of (i)
the date Capital declares the related distribution, if any,
to the holders of the Common Interests or (ii) the date
Capital is required to give notice of the record or payment
date of such related distribution, if any, to the holders of
the Common Interests to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the
Common Interests, but in any event not less than two
Business Days prior to such Record Date.
Reference is made to the further provisions of
this Debenture set forth on the reverse hereof. Such
further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Debenture shall not be valid or become
obligatory for any purpose until the certificate of
authentication hereon shall have been signed by the Trustee
under the Indenture referred to below.
This Debenture is one of a duly authorized issue
of debentures, notes, bonds or other evidences of
indebtedness of the Issuer (hereinafter called the
"Securities") of the series hereinafter specified, all
issued or to be issued under and pursuant to an indenture
dated as of March 10, 1994 and supplemental indentures
thereto (herein collectively called the "Indenture"), duly
executed and delivered by the Issuer and First Trust
National Association, as Trustee (herein called the
"Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a
description of the rights, limitations of rights,
A-7
obligations, duties and immunities thereunder of the
Trustee, the Issuer and the holders of the Securities. The
Securities may be issued in one or more series, which
different series may be issued in various aggregate
principal amounts, may mature at different times, may bear
interest (if any) at different rates, may be subject to
different redemption provisions (if any), may be subject to
different sinking, purchase or analogous funds (if any) and
may otherwise vary as in the Indenture provided. This
Debenture is one of a series designated as the "Series BB
Debentures due 2043" (the "Series BB Debentures") of the
Issuer, limited in aggregate principal amount to
$46,519,000.
In case an Event of Default with respect to the
Series BB Debentures, as defined in the Indenture, shall
have occurred and be continuing, the principal hereof may be
declared, and upon such declaration shall become, due and
payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the
Issuer and the Trustee, with the consent of the Holders of
not less than 66-2/3% in aggregate principal amount of the
Securities at the time Outstanding (as defined in the
Indenture) of all series to be affected (voting as one
class), evidenced as in the Indenture provided, to execute
supplemental indentures adding any provisions to or changing
in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in
any manner the rights of the Holders of the Securities of
each such series; provided, however, that no such
supplemental indenture shall (i) extend the final maturity
of any Security, or reduce the principal amount thereof or
any premium thereon, or reduce the rate or extend the time
of payment of any interest thereon, or impair or affect the
rights of any Holder to institute suit for the payment
thereof, without the consent of the Holder of each Security
so affected, or (ii) reduce the aforesaid percentage of
Securities, the Holders of which are required to consent to
any such supplemental indenture, without the consent of the
Holder of each Security affected. It is also provided in
the Indenture that, with respect to certain defaults or
Events of Default regarding the Securities of any series,
prior to any declaration accelerating the maturity of such
Securities, the Holders of a majority in aggregate principal
amount Outstanding of the Securities of such series (or, in
the case of certain defaults or Events of Default, all or
certain series of the Securities) may on behalf of the
Holders of all the Securities of such series (or all or
certain series of the Securities, as the case may be) waive
any such past default or Event of Default and its
consequences. The preceding sentence shall not, however,
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apply to a continuing default in the payment of the
principal of or premium, if any, or interest on any of the
Securities. Any such consent or waiver by the Holder of
this Debenture (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon
all future Holders and owners of this Debenture and any
Debenture which may be issued in exchange or substitution
herefor, irrespective of whether or not any notation thereof
is made upon this Debenture or such other Debentures.
No reference herein to the Indenture and no
provision of this Debenture or of the Indenture shall alter
or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of and any premium
and interest on this Debenture in the manner, at the
respective times, at the rate and in the coin or currency
herein prescribed.
The Series BB Debentures are issuable in
registered form without coupons in denominations of $25 and
any integral multiple of $25 at the office or agency of the
Issuer in the Borough of Manhattan, The City of New York,
and in the manner and subject to the limitations provided in
the Indenture, but without the payment of any service
charge, Series BB Debentures may be exchanged for a like
aggregate principal amount of Series BB Debentures of other
authorized denominations.
Upon not less than 30 nor more than 60 days' prior
notice, the Issuer shall have the right to prepay the Series
BB Debentures (together with any accrued but unpaid
interest, including Additional Interest, if any, on the
portion being prepaid), without premium or penalty,
(i) in whole or in part, as the case may be, at
any time on or after June 30, 1999; and
(ii) in whole at any time if the Issuer and
Capital have been advised by independent nationally
recognized legal counsel that, as a result of any
change after June 1, 1994 in United States 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 the Issuer will be precluded from deducting
the interest on the Series BB Debentures for federal
income tax purposes,
all as further provided in the Indenture.
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The Series BB Debentures are, to the extent and in
the manner provided in the Indenture, expressly subordinate
and junior in right of payment of all Senior Indebtedness as
provided in the Indenture, and each holder of this
Debenture, by his acceptance hereof, agrees to and shall be
bound by such provisions of the Indenture and authorizes and
directs the Trustee in his behalf to take such action as
appropriate to effectuate such subordination and appoints
the Trustee his attorney-in-fact for any and all such
purposes. The Indenture defines Senior Indebtedness as
obligations (other than non-recourse obligations and the
Securities) of, or guaranteed or assumed by, the Issuer for
borrowed money (including both senior and subordinated
indebtedness for borrowed money (other than the Securities))
or evidenced by bonds, debentures, notes or other similar
instruments, and amendments, renewals, extensions,
modifications and refundings of any such indebtedness or
obligation, whether existing as of the date hereof or
subsequently incurred by the Issuer.
Upon due presentment for registration of transfer
of this Debenture at the office or agency of the Issuer in
the Borough of Manhattan, The City of New York, a new
Debenture or Debentures of authorized denominations for an
equal aggregate principal amount will be issued to the
transferee in exchange therefor, subject to the limitations
provided in the Indenture, without charge except for any tax
or other governmental charge imposed in connection
therewith.
The Issuer, the Trustee and any authorized agent
of the Issuer or the Trustee may deem and treat the
registered Holder hereof as the absolute owner of this
Debenture (whether or not this Debenture shall be overdue
and notwithstanding any notation of ownership or other
writing hereon), for the purpose of receiving payment of, or
on account of, the principal hereof and premium, if any, and
subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and neither the Issuer
nor the Trustee nor any authorized agent of the Issuer or
the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant
or agreement of the Issuer in the Indenture or any indenture
supplemental thereto or in any Debenture, or because of the
creation of any indebtedness represented thereby, shall be
had against any incorporator, stockholder, officer or
director, as such, of the Issuer or of any successor
corporation, either directly or through the Issuer or any
successor corporation, under any rule of law, statute or
constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and
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released by the acceptance hereof and as part of the
consideration for the issue hereof.
Terms used herein which are defined in the
Indenture shall have the respective meanings assigned
thereto in the Indenture.
Dated:
ConAgra, Inc.
By______________________________
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series
designated herein referred to in the within-mentioned
Indenture.
First Trust National
Association, as Trustee
By__________________________
Authorized Signatory
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