EX-10.10 3 a06-16588_1ex10d10.htm EX-10.10

Exhibit 10.10

CONAGRA FOODS 2006 STOCK PLAN

SECTION 1

NAME AND PURPOSE

1.1  Name.  The name of the plan shall be the ConAgra Foods 2006 Stock Plan (the “Plan”).

1.2. Purpose of Plan. The purpose of the Plan is to foster and promote the long-term financial success of the Company and increase stockholder value by (a) motivating superior performance by means of stock incentives, (b) encouraging and providing for the acquisition of an ownership interest in the Company by Participants and (c) enabling the Company to attract and retain the services of a management team responsible for the long-term financial success of the Company.

SECTION 2

DEFINITIONS

2.1  Definitions.  Whenever used herein, the following terms shall have the respective meanings set forth below:

(a)  “Act” means the Securities Exchange Act of 1934, as amended.

(b)  “Award” means any Option, Stock Appreciation Right, Restricted Stock, or Other Stock-Based Award granted under the Plan, including Awards combining two or more types of Awards in a single grant.

(c)  “Board” means the Board of Directors of the Company.

(d)  “Code” means the Internal Revenue Code of 1986, as amended.

(e)  “Committee” means the Human Resources Committee of the Board, or its successor, or such other committee of the Board to which the Board delegates power to act under or pursuant to the provisions of the Plan.

(f)   “Company” means ConAgra Foods, Inc., a Delaware corporation (and any successor thereto) and its Subsidiaries.

(g)  “Eligible Director” means a person who is serving as a member of the Board and who is not an Employee.

(h)  “Employee” means any employee of the Company or any of its Subsidiaries.

(i)   “Fair Market Value” means, on any date, the closing price of the Stock as reported on the New York Stock Exchange (or on such other recognized market or quotation system on which the trading prices of the Stock are traded or quoted at the relevant time) on such date.  In the event that there are no Stock transactions reported on such

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Exhibit 10.10

exchange (or such other system) on such date, Fair Market Value shall mean the closing price on the immediately preceding date on which Stock transactions were so reported.

(j)   “Option” means the right to purchase Stock at a stated price for a specified period of time. For purposes of the Plan, an Option may be either (i) an Incentive Stock Option within the meaning of Section 422 of the Code or (ii) a Nonstatutory Stock Option.

(k)  “Other Stock-Based Award” means an award of a share of Stock or units of common stock to a Participant subject to such terms as the Committee may determine.

(l)   “Participant” means any Employee, Eligible Director, or consultant (a non-employee who performs bona fide services to the Company) designated by the Committee to participate in the Plan.

(m) “Plan” means the ConAgra Foods 2006 Stock Plan, as in effect from time to time.

(n)  “Restricted Stock” shall mean a share of Stock granted to a Participant subject to such restrictions as the Committee may determine.

(o)  “Stock” means the Common Stock of the Company, par value $5.00 per share.

(p)  “Stock Appreciation Right” means the right, subject to such terms and conditions as the Committee may determine, to receive an amount in cash or Stock, as determined by the Committee, equal to the excess of (i) the Fair Market Value, as of the date such Stock Appreciation Right is exercised, of the number shares of Stock covered by the Stock Appreciation Right being exercised over (ii) the aggregate exercise price of such Stock Appreciation Right.

(q)  “Subsidiary” means any corporation, partnership, joint venture or other entity in which the Company owns, directly or indirectly, 25% or more of the voting power or of the capital interest or profits interest of such entity.

2.2  Gender and Number.  Except when otherwise indicated by the context, words in the masculine gender used in the Plan shall include the feminine gender, the singular shall include the plural, and the plural shall include the singular.

SECTION 3

ELIGIBILITY AND PARTICIPATION

The only persons eligible to participate in the Plan shall be those Participants selected by the Committee.

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Exhibit 10.10

SECTION 4

POWERS OF THE COMMITTEE

4.1  Committee Members.  The Plan shall be administered by the Committee comprised of no fewer than two members of the Board.  Each Committee member shall satisfy the requirements for (i) an “independent director” for purposes of the Company’s Corporate Governance Principles, (ii) an “independent director” under rules adopted by the New York Stock Exchange, (iii) a “non-employee director” for purposes of Rule 16b-3 under the Exchange Act, and (iv) an “outside director” under Section 162(m) of the Code.

4.2  Power to Grant.  The Committee shall determine the Participants to whom Awards shall be granted, the type or types of Awards to be granted, and the terms and conditions of any and all such Awards. The Committee may establish different terms and conditions for different types of Awards, for different Participants receiving the same type of Awards, and for the same Participant for each Award such Participant may receive, whether or not granted at different times.

4.3  Administration.  The Committee shall be responsible for the administration of the Plan. The Committee, by majority action thereof, is authorized to prescribe, amend, and rescind rules and regulations relating to the Plan, to provide for conditions deemed necessary or advisable to protect the interests of the Company, and to make all other determinations necessary or advisable for the administration and interpretation of the Plan in order to carry out its provisions and purposes. Determinations, interpretations, or other actions made or taken by the Committee pursuant to the provisions of the Plan shall be final, binding, and conclusive for all purposes and upon all persons.

4.4  Delegation by Committee.  Except to the extent prohibited by applicable law or the applicable rules of a stock exchange, the Committee may delegate all or any portion of its responsibilities and powers to any one or more of its members.  The Committee may delegate to an officer of the Company the authority to designate the recipients and the number of the Awards, provided that such authority cannot apply to Awards to executive officers, directors or the designee.

SECTION 5

STOCK SUBJECT TO PLAN

5.1  Number.  Subject to the provisions of Section 5.4, the number of shares of Stock subject to Awards under the Plan may not exceed 30,000,000 shares of Stock. The shares to be delivered under the Plan may consist, in whole or in part, of treasury Stock or authorized but unissued Stock, not reserved for any other purpose.

5.2  Limitations.  The maximum number of shares of Stock with respect to which Awards may be granted to any one Participant under the Plan is 15% of the aggregate number of shares of Stock available for Awards under Section 5.1.  A maximum of 50% of shares of Stock available for issuance under the Plan may be issued as Awards other than Options or Stock Appreciation Rights.

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Exhibit 10.10

5.3  Cancelled, Terminated, Forfeited or Surrendered Awards.  Any shares of Stock subject to an Award which for any reason are cancelled, terminated, lapsed or expired without the issuance of any stock shall again be available for Awards under the Plan; provided, the following shares of Stock may not again be made available for issuance as Awards under the Plan: (i) shares used to pay the exercise price of an outstanding Award, (ii) shares used to pay withholding taxes related to an outstanding Award, or (iii) shares not issued or delivered as a result of the net settlement of an outstanding Stock Appreciation Right.

5.4  Adjustment in Capitalization. In the event of any Stock dividend or Stock split, recapitalization (including, without limitation, the payment of an extraordinary dividend), merger, consolidation, combination, spin-off, distribution of assets to stockholders, exchange of shares, or other similar corporate transaction or event, (i) the aggregate number of shares of Stock available for Awards under Section 5.1 and (ii) the number of shares and exercise price with respect to Options and the number, prices and dollar value of other Awards, shall be appropriately adjusted by the Committee, whose determination shall be conclusive.

5.5  Dividend Equivalent Rights.  No dividends or dividend equivalents shall be paid on Options or Stock Appreciation Rights.  The Committee may at the time of a Restricted Stock or Other Stock-Based Award provide that any dividends declared on common stock or dividend equivalents be (i) paid to the Participant, (ii) accumulated for the benefit of the Participant and paid to the Participant only after the expiration of any restrictions, or (ii) not paid or accumulated.

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Exhibit 10.10

SECTION 6

STOCK OPTIONS

6.1  Grant of Options.  Options may be granted to Participants at such time or times as shall be determined by the Committee.  Options granted under the Plan may be of two types: (i) Incentive Stock Options and (ii) Nonstatutory Stock Options. The Committee shall have complete discretion in determining the number of Options, if any, to be granted to a Participant. Each Option shall be evidenced by an Option agreement that shall specify the type of Option granted, the exercise price, the duration of the Option, the number of shares of Stock to which the Option pertains, the exercisability (if any) of the Option in the event of death, retirement, disability or termination of employment, and such other terms and conditions not inconsistent with the Plan as the Committee shall determine.  Only Participants who are Employees shall be eligible to receive Incentive Stock Options.  Options may also be granted in replacement of or upon assumption of options previously issued by companies acquired by the Company by merger or stock purchase, and any options so replaced or assumed may have the same terms including exercise price as the options so replaced or assumed.

6.2  Option PriceNonstatutory Stock Options and Incentive Stock Options granted pursuant to the Plan shall have an exercise price which is not less than the Fair Market Value on the date the Option is granted.

6.3  Exercise of Options.  Options awarded to a Participant under the Plan shall be exercisable at such times and shall be subject to such restrictions and conditions as the Committee may impose, subject to the Committee’s right to accelerate the exercisability of such Option in its discretion.  Notwithstanding the foregoing, no Option shall be exercisable for more than ten years after the date on which it is granted.

6.4  Payment.  The Committee shall establish procedures governing the exercise of Options, which shall require that notice of exercise be given and that the Option price be paid in full in cash or cash equivalents, including by personal check, at the time of exercise or pursuant to any arrangement that the Committee shall approve. The Committee may, in its discretion, permit a Participant to make payment (i) by tendering, by either actual delivery of shares or by attestation, shares of Stock already owned by the Participant valued at its Fair Market Value on the date of exercise (if such Stock has been owned by the Participant for at least six months) or (ii) by electing to have the Company retain Stock which would otherwise be issued on exercise of the Option, valued at its Fair Market Value on the date of exercise. As soon as practicable after receipt of a notice of exercise and full payment of the exercise price, the Company shall deliver to the Participant either by electronic means or by stock certificate or certificates the acquired shares of Stock.  The Committee may permit a Participant to elect to pay the exercise price upon the exercise of an Option by irrevocably authorizing a third party to sell shares of stock (or a sufficient portion of the shares) acquired upon the exercise of the Option and remit to the Company a sufficient portion of the sale proceeds to pay the entire exercise price and any required tax withholding resulting from such exercise.  The Committee may approve other methods of payment.

6.5  Incentive Stock Options.  Notwithstanding anything in the Plan to the contrary, no term of this Plan relating to Incentive Stock Options shall be interpreted, amended or altered, nor shall any discretion or authority granted under the Plan be so exercised, so as to disqualify the Plan under Section 422 of the Code, or, without the consent of any Participant affected thereby, to cause any Incentive

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Exhibit 10.10

Stock Option previously granted to fail to qualify for the Federal income tax treatment afforded under Section 421 of the Code.

6.6  No Repricing.  Other than in connection with the change in capitalization (as described in Section 5.4 of the Plan), the exercise price of an Option may not be reduced without stockholder approval.

6.7  No Reload Grants.  Options shall not be granted under the Plan in consideration for the delivery of Stock to the Company in payment of the exercise price and/or tax withholding obligation under any other Option.

SECTION 7

DIRECTOR AWARDS

7.1  Director Awards.  Any Award or formula for granting an Award under the Plan made to Eligible Directors shall be approved by the Board.  With respect to awards to such directors, all rights, powers and authorities vested in the Committee under Plan shall instead be exercised by the Board.  The maximum number of shares of Stock with respect to which Awards may be granted to Eligible Directors under the Plan is 5% of the aggregate number of shares of Stock available for Awards under Section 5.1.

SECTION 8

STOCK APPRECIATION RIGHTS

8.1  SAR’s In Tandem with Options.  Stock Appreciation Rights may be granted to Participants in tandem with any Option granted under the Plan, either at or after the time of the grant of such Option, subject to such terms and conditions, not inconsistent with the provisions of the Plan, as the Committee shall determine. Each Stock Appreciation Right shall only be exercisable to the extent that the corresponding Option is exercisable, and shall terminate upon termination or exercise of the corresponding Option.  Upon the exercise of any Stock Appreciation Right, the corresponding Option shall terminate.

8.2  Other Stock Appreciation Rights.  Stock Appreciation Rights may also be granted to Participants separately from any Option, subject to such terms and conditions, not inconsistent with the provisions of the Plan, as the Committee shall determine.

8.3  Limitations.  The provisions of Sections 6.2, 6.3, 6.6 and 6.7 of the Plan shall also apply to Stock Appreciation Rights.

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Exhibit 10.10

SECTION 9

RESTRICTED STOCK

9.1  Grant of Restricted Stock.  The Committee may grant Restricted Stock to Participants at such times and in such amounts, and subject to such other terms and conditions not inconsistent with the Plan as it shall determine.  Each grant of Restricted Stock shall be subject to such restrictions, which may relate to continued employment with the Company, performance of the Company, or other restrictions, as the Committee may determine. Each grant of Restricted Stock shall be evidenced by a written agreement setting forth the terms of such Award.

9.2  Removal of Restrictions.  The Committee may accelerate or waive such restrictions in whole or in part at any time in its discretion.

SECTION 10

OTHER STOCK-BASED AWARDS; CERTAIN LIMITATIONS ON AWARDS

10.1  General.  The Committee may grant Awards of Stock and Awards that are valued in whole or in part by reference to, or are otherwise based on the Fair Market Value of, Shares.  Such other stock-based awards shall be in such form, and dependent on such conditions, as the Committee shall determine, including, without limitation, the right to receive or vest with respect to, one or more shares of Stock (or the equivalent cash value of such Stock) upon the completion of a specified period of service, the occurrence of an event, and/or the attainment of performance objectives.  Such other stock-based awards may include the awards referenced in Sections 10.2 and 10.3.

10.2  Restricted Stock Units.  Restricted Stock Units represent an unfunded and unsecured obligation of the Company.  Settlement of a Restricted Stock Unit upon expiration of the deferral or vesting period shall be made in Stock or otherwise as determined by the Committee.

10.3  Performance Shares.  Performance shares are awards the grant, issuance, retention, vesting and/or settlement of which is subject to the satisfaction of one or more of the performance criteria established by the Committee.  With respect to Participants covered by the Company’s Executive Incentive Plan, the performance measures shall be those designated in such Executive Incentive Plan.

10.4  Certain Limitations on Awards.  A maximum of 5% the aggregate number of shares of Stock available for issuance under the Plan may be issued as Restricted Stock, restricted stock units or performance shares having no minimum vesting period; subject to the foregoing, and except in the case of Change-in-Control, death, disability or termination of employment, no Award (other than an Option or Stock Appreciation Right) based on performance criteria shall be based on performance over a period of less than one year, and no Award (other than an Option or Stock Appreciation Right) that is conditioned on continued employment or the passage of time shall provide for vesting in less than pro rata installments over three years from the date of Award.

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Exhibit 10.10

SECTION 11

AMENDMENT, MODIFICATION, AND TERMINATION OF PLAN

11.1  General.  The Board may from time to time amend, modify or terminate any or all of the provisions of the Plan, subject to the provisions of this Section 11.1.  The Board may not change the Plan in a manner which would prevent outstanding Incentive Stock Options granted under the Plan from being Incentive Stock Options without the written consent of the optionees concerned. Furthermore, the Board may not make any amendment which would (i) materially modify the requirements for participation in the Plan, (ii) increase the number of shares of Stock subject to Awards under the Plan pursuant to Section 5.1, (iii) change the minimum exercise price for stock options as provided in Section 6.2,  or (iv) extend the term of the Plan, in each case without the approval of a majority of the outstanding shares of Stock entitled to vote thereon. No amendment or modification shall affect the rights of any Participant with respect to a previously granted Award, without the written consent of the Participant.

11.2 Termination of Plan.  No Award shall be granted under the Plan subsequent to September 28, 2016, or such earlier date as may be determined by the Board.  No termination of the Plan shall adversely affect any Award previously granted.

SECTION 12

MISCELLANEOUS PROVISIONS

 12.1 Nontransferability of Awards.  Except as otherwise provided by the Committee, no Awards granted under the Plan may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution.

12.2  Beneficiary Designation.  Each Participant under the Plan may from time to time name any beneficiary or beneficiaries (who may be named contingent or successively) to whom any benefit under the Plan is to be paid or by whom any right under the Plan is to be exercised in case of his death. Each designation will revoke all prior designations by the same Participant shall be in a form prescribed by the Committee, and will be effective only when filed in writing with the Committee.  In the absence of any such designation, Awards outstanding at death may be exercised by the Participant’s surviving spouse, if any, or otherwise by his estate.

12.3  No  Guarantee of Employment or Participation.  Nothing in the Plan shall interfere with or limit in any way the right of the Company or any Subsidiary to terminate any Participant’s employment at any time, nor confer upon any Participant any right to continue in the employ of the Company or any Subsidiary. No individual shall have a right to be selected as a Participant, or, having been so selected, to receive any future Awards.

12.4  Tax Withholding.  The Company shall have the power to withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy federal, state, and local withholding tax requirements on any Award under the Plan, and the Company may defer issuance of Stock until such requirements are satisfied. The Committee may, in its discretion, permit a Participant to elect,

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Exhibit 10.10

subject to such conditions as the Committee shall impose, (i) to have shares of Stock otherwise issuable under the Plan withheld by the Company or (ii) to deliver to the Company previously acquired shares of Stock, in each case having a Fair Market Value sufficient to satisfy all or part of the Participant’s estimated total federal, state and local tax obligation associated with the transaction.

12.5  Change of Control.  On the date of a Change of Control (as herein defined), all outstanding Options and Stock Appreciation Rights shall become immediately exercisable and all restrictions with respect to Restricted Stock and other Stock Based Awards shall lapse.  Change of Control shall mean:

(a)  Individuals who constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board, provided that any person becoming a director subsequent to the date hereof whose election, or nomination for the election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be, for purposes of this Plan, considered as though such person were a member of the Incumbent Board; or

(b)  Consummation of a reorganization, merger or consolidation, in each case, in which the Company is not the surviving entity and with respect to which persons who were the stockholders of the Company immediately prior to such reorganization, merger or consolidation do not, immediately thereafter, own more than 50% of the combined voting power entitled to vote generally in the election of directors of the reorganized, merged or consolidated company’s then outstanding voting securities, or a liquidation or dissolution of the Company or of the sale of all or substantially all of the assets of the Company.

12.6  Agreements with Company.  An Award under the Plan shall be subject to such terms and conditions, not inconsistent with the Plan, as the Committee may, in its sole discretion, prescribe.  The terms and conditions of any Award to any Participant shall be reflected in such form of written document as is determined by the Committee or its designee.

12.7  Company Intent.  The Company intends that the Plan comply in all respects with Rule 16b-3 under the Act, and any ambiguities or inconsistencies in the construction of the Plan shall be interpreted to give effect to such intention.  If any provision of the Plan or an Award contravenes any regulations promulgated under Section 409A of the Code or could cause an Award to be subject to interest and penalties under Section 409A of the Code, such provision of the Plan or any Award shall be modified to maintain, to the maximum extent practicable, the original intent of the applicable provision without violating the provisions of Section 409A of the Code.

12.8  Unfunded Plan.  The plan shall be unfunded.  Bookkeeping accounts may be established with respect to Participants who are granted Awards under the Plan, but any such accounts will be used merely as a bookkeeping convenience.  The Company shall not be required to segregate any assets which may at any time be represented by Awards.

12.9 Requirements of Law.  The granting of Awards and the issuance of shares of Stock shall be subject to all applicable laws, rules, and regulations, and to such approvals by any governmental agencies or securities exchanges as may be required.

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Exhibit 10.10

12.10  Effective Date.  The Plan shall be effective upon its adoption by the Board subject to approval by the Company’s stockholders at the 2006 annual stockholders’ meeting.

12.11  Governing Law.  The Plan, and all agreements hereunder, shall be construed in accordance with and governed by the laws of the State of Delaware.

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                            CONAGRA 2000 STOCK PLAN
 
 
                               NAME AND PURPOSE
                               ----------------
 
      1.1    NAME. The name of the plan shall be the ConAgra 2000 Stock Plan
(the "Plan").
 
      1.2.   PURPOSE OF PLAN. The purpose of the Plan is to foster and
promote the long-term financial success of the Company and increase
stockholder value by (a) motivating superior performance by means of stock
incentives,  (b) encouraging and providing for the acquisition of an
ownership interest in the Company by Employees and (c) enabling the Company
to attract and retain the services of a management team responsible for the
long-term financial success of the Company.
 
                                   SECTION 2
 
                                  DEFINITIONS
                                  -----------
 
      2.1    DEFINITIONS. Whenever used herein, the following terms shall
have the respective meanings set forth below:
 
             (a) "Act" means the Securities Exchange Act of 1934, as amended.
 
             (b) "Award" means any Option, Stock Appreciation Right,
      Restricted Stock, Stock Bonus, or any combination thereof granted under
      the Plan, including Awards combining two  or  more types of Awards in
      a single grant.
 
             (c) "Board" means the Board of Directors of the Company.
 
             (d) "Code" means the Internal Revenue Code of 1986, as amended.
 
             (e)  "Committee" means the Human Resources Committee of the
      Board, which shall consist of two or more members, each of whom shall
      be a "non-employee director" within the meaning of Rule 16b-3 as
      promulgated under the Act.
 
             (f)  "Company"  means ConAgra, Inc., a Delaware corporation
      (and  any successor thereto) and its Subsidiaries.
 
             (g) "Director Award" means an award of Stock and an award of a
      Nonstatutory Stock  Option granted to each Eligible Director pursuant to
      Section 7.1 without any action by the Board or the Committee.
 
             (h) "Eligible Director" means a person who is serving as a
      member of the Board and who is not an Employee.
 
             (i) "Employee" means any employee of the Company or any of its
      Subsidiaries.
 
             (j) "Fair Market Value" means, on any date, the closing price of
      the Stock as reported on the New York Stock Exchange (or on such other
      recognized market or quotation system on which the trading prices of the
      Stock are traded or quoted at the relevant time) on such date. In the
      event that there are no Stock transactions reported on such exchange
      (or such other system) on such date, Fair Market Value shall mean the
      closing price on the immediately preceding date on which Stock
      transactions were so reported.
 
 
 
 
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<PAGE>
 
                                                                   EXHIBIT 10.1
 
 
             (k) "Option" means the right to purchase Stock at a stated price
      for a specified period  of time. For purposes of the Plan, an Option may
      be either  (i) an Incentive Stock Option within the meaning of Section
      422 of the Code or (ii) a Nonstatutory Stock Option.
 
             (l) "Participant" means any Employee designated by the Committee
      to participate in the Plan.
 
             (m) "Plan" means the ConAgra 2000 Stock Plan, as in effect from
      time to time.
 
             (n) "Restricted Stock" shall mean a share of Stock granted to a
      Participant subject to such restrictions as the Committee may determine.
 
             (o) "Stock" means the Common Stock of the Company, par value $5.00
      per share.
 
             (p) "Stock Appreciation Right" means the right, subject to such
      terms and conditions as the Committee may determine, to receive an amount
      in cash or Stock, as determined by the Committee, equal to the excess
      of (i) the Fair Market Value, as of the date such Stock Appreciation
      Right is exercised, of the number shares of Stock covered by the Stock
      Appreciation Right being exercised over (ii) the aggregate exercise
      price of such Stock Appreciation Right.
 
             (q) "Stock Bonus" means the grant of Stock as compensation from
      the Company in lieu of cash salary or bonuses otherwise payable to the
      Participant and stock issued for service awards and other similar
      Employee recognition programs.
 
             (r) "Subsidiary" means any corporation, partnership, joint venture
      or other entity in which the Company owns, directly or indirectly, 25% or
      more of the voting power or of the capital interest or profits interest of
      such entity.
 
      2.2    GENDER AND NUMBER. Except when otherwise indicated by the
context, words in the masculine gender used in the Plan shall include the
feminine gender, the singular shall include the plural, and the plural shall
include the singular.
 
 
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<PAGE>
 
                                                                   EXHIBIT 10.1
 
                                  SECTION 3
 
                        ELIGIBILITY AND PARTICIPATION
                        -----------------------------
 
      Except as otherwise provided in Section 7.1, the only persons eligible
to participate in the Plan shall be those Employees selected by the Committee
as Participants.
 
                                 SECTION 4
 
                         POWERS OF THE COMMITTEE
                         -----------------------
 
      4.1    POWER TO GRANT. The Committee shall determine the Participants to
whom Awards shall be granted, the type or types of Awards to be granted, and
the terms and conditions of any and all such Awards. The Committee may
establish different terms and conditions for different types of Awards, for
different Participants receiving the same type of Awards, and for the same
Participant for each Award such Participant may receive, whether or not
granted at different times.
 
      4.2    ADMINISTRATION. The Committee  shall be  responsible  for the
administration of the Plan. The Committee, by majority action thereof, is
authorized to prescribe, amend, and rescind rules and regulations relating to
the Plan, to provide for conditions deemed necessary or advisable to protect
the interests of the Company, and to make all other determinations necessary
or advisable for the administration and interpretation of the Plan in order
to carry out its provisions and purposes. Determinations, interpretations, or
other actions made or taken by the Committee pursuant to the provisions of
the Plan shall be final, binding, and conclusive for all purposes and upon
all persons. Notwithstanding anything else contained in the Plan to the
contrary, neither the Committee nor the Board shall have any discretion
regarding whether an Eligible Director receives a Director Award pursuant to
Section 7.1 or regarding the terms of any such Director Award, including,
without limitation, the number of shares subject to any such Director Award.
 
                                 SECTION 5
 
                          STOCK SUBJECT TO PLAN
                          ---------------------
 
      5.1    NUMBER. Subject to the provisions of Section 5.3, the number of
shares of Stock subject to Awards (including Director Awards) under the Plan
may not exceed 30,000,000 shares of Stock. The shares to be delivered under
the Plan may consist, in whole or in part, of treasury Stock or authorized
but unissued Stock, not reserved for any other purpose. The maximum number of
shares of Stock with respect to which Awards may be granted to any one
Employee under the Plan is 10% of the aggregate number of shares of Stock
available for Awards under Section 5.1. A maximum of 10% of shares of Stock
available for issuance under the Plan may be issued as Restricted Stock and
Stock Bonuses.
 
      5.2    CANCELLED, TERMINATED, FORFEITED OR SURRENDERED AWARDS. Any
shares of Stock subject to an Award which for any reason are cancelled,
terminated or otherwise settled without the issuance of any Stock shall again
be available for Awards under the Plan. In the event that any Award is
exercised through the delivery of Stock or in the event that withholding tax
liabilities arising from such Award are satisfied by the withholding of Stock
by the Company, the number of shares available for Awards under the Plan
shall be increased by the number of shares so surrendered or withheld.
 
      5.3    ADJUSTMENT IN CAPITALIZATION. In the event of any Stock dividend
or Stock split, recapitalization (including, without limitation, the payment
of an extraordinary  dividend), merger,
 
 
 
 
 
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<PAGE>
 
                                                                   EXHIBIT 10.1
 
 
consolidation, combination, spin-off, distribution of assets to stockholders,
exchange of shares, or other similar corporate transaction or event, (i) the
aggregate number of shares of Stock available for Awards under Section 5.1
and (ii) the number of shares and exercise price with respect to Options and
the number, prices and dollar value of other Awards, shall be appropriately
adjusted by the Committee, whose determination shall be conclusive. If,
pursuant to the preceding sentence, an adjustment is made to the number of
shares of Stock authorized for issuance under the Plan, a corresponding
adjustment shall be made to the number of shares subject to each Director
Award thereafter granted pursuant to Section 7.1.
 
                                SECTION 6
 
                             STOCK OPTIONS
                             -------------
 
      6.1    GRANT OF OPTIONS. Options may be granted to Participants at such
time or times as shall be determined by the Committee. Options granted under
the Plan may be of two types: (i) Incentive Stock Options and (ii)
Nonstatutory Stock Options. The Committee shall have complete discretion in
determining the number of Options, if any, to be granted to a Participant.
Each Option shall be evidenced by an Option agreement that shall specify the
type of Option granted, the exercise price, the duration of the Option, the
number of shares of Stock to which the Option pertains, the exercisability
(if any) of the Option in the event of death, retirement, disability or
termination of employment, and such other terms and conditions not
inconsistent with the Plan as the Committee shall determine. Options may also
be granted in replacement of or upon assumption of options previously issued
by companies acquired by the Company by merger or stock purchase, and any
options so replaced or assumed may have the same terms including exercise
price as the options so replaced or assumed.
 
      6.2    OPTION PRICE. Nonstatutory Stock Options and Incentive Stock
Options granted pursuant to the Plan shall have an exercise price which is
not less than the Fair Market Value on the date the Option is granted.
 
      6.3 EXERCISE OF OPTIONS. Options awarded to a Participant under the
Plan shall be exercisable at such times and shall be subject to such
restrictions and conditions as the Committee may impose, subject to the
Committee's right to accelerate the exercisability of such Option in its
discretion. Notwithstanding the foregoing, no Option shall be exercisable for
more than ten years after the date on which it is granted.
 
      6.4    PAYMENT. The Committee shall establish procedures governing the
exercise of Options, which shall require that written notice of exercise be
given and that the Option price be paid in full in cash or cash equivalents,
including by personal check, at the time of exercise or pursuant to any
arrangement that the Committee shall approve. The Committee may, in its
discretion, permit a Participant to make payment (i) by tendering, by either
actual delivery of shares or by attestation, shares of in Stock already owned
by the Participant valued at its Fair Market Value on the date of exercise
(if such Stock has been owned by the Participant for at least six months) or
(ii) by electing to have the Company retain Stock which would otherwise be
issued on exercise of the Option, valued at its Fair Market Value on the date
of exercise. As soon as practicable after receipt of a written exercise
notice and full payment of the exercise price, the Company shall deliver to
the Participant a certificate or certificates representing the acquired
shares of Stock. The Committee may permit a Participant to elect to pay the
exercise price upon the exercise of an Option by irrevocably authorizing a
third party to sell shares of stock (or a sufficient portion of the shares)
acquired upon the exercise of the Option and remit to the Company a
sufficient portion of the sale proceeds to pay the entire exercise price and
any required tax withholding resulting from such exercise.
 
 
 
 
 
 
                                       66
 
<PAGE>
 
                                                                   EXHIBIT 10.1
 
 
      6.5    INCENTIVE STOCK OPTIONS. Notwithstanding anything in the Plan to
the contrary, no term of this Plan relating to Incentive Stock Options shall
be interpreted, amended or altered, nor shall any discretion or authority
granted under the Plan be so exercised, so as to disqualify the Plan under
Section 422 of the Code, or, without the consent of any Participant affected
thereby, to cause any Incentive Stock Option previously granted to fail to
qualify for the Federal income tax treatment afforded under Section 421 of
the Code.
 
                                SECTION 7
 
                            DIRECTOR AWARDS
                            ---------------
 
      7.1    AMOUNT OF AWARD. Each Eligible Director shall receive annually
(i) a grant of a Nonstatutory Stock Option for 9,000 shares of Stock and (ii)
a grant of 1,800 shares of Stock from the Company's treasury shares. Such
grants shall be made each year immediately  following the annual meeting of
Company stockholders to those persons who are Eligible Directors immediately
following such meeting.
 
      7.2    NO OTHER AWARDS. An Eligible Director shall not receive any
other Award under the Plan.
 
                                SECTION 8
 
                       STOCK APPRECIATION RIGHTS
                       -------------------------
 
      8.1    SAR'S IN TANDEM WITH OPTIONS. Stock Appreciation Rights may be
granted to Participants in tandem with any Option granted under the Plan,
either at or after the time of the grant of such Option, subject to such
terms and conditions, not inconsistent with the provisions of the Plan, as
the Committee shall determine. Each Stock Appreciation Right shall only be
exercisable to the extent that the corresponding Option is exercisable, and
shall terminate upon termination or exercise of the corresponding Option.
Upon the exercise of any Stock Appreciation Right, the corresponding Option
shall terminate.
 
      8.2    OTHER STOCK APPRECIATION RIGHTS. Stock Appreciation Rights may
also be granted to Participants separately from any Option, subject to such
terms and conditions, not inconsistent with the provisions of the Plan, as
the Committee shall determine.
 
                                SECTION 9
 
                            RESTRICTED STOCK
                            ----------------
 
      9.1    GRANT OF RESTRICTED STOCK. The Committee may grant Restricted
Stock to Participants at such times and in such amounts, and subject to such
other terms and conditions not inconsistent with the Plan as it shall
determine. Each grant of Restricted Stock shall be subject to such
restrictions, which may relate to continued employment with the Company,
performance of the Company, or other restrictions, as the Committee may
determine. Each grant of Restricted Stock shall be evidenced by a written
agreement setting forth the terms of such Award.
 
      9.2    REMOVAL OF RESTRICTIONS. The Committee may accelerate or waive
such restrictions in whole or in part at any time in its discretion.
 
 
 
 
                                       67
 
<PAGE>
 
                                                                   EXHIBIT 10.1
 
 
                                SECTION 10
 
                              STOCK BONUSES
                              -------------
 
      10.1   GRANT OF STOCK BONUSES. The Committee may grant a Stock Bonus to
a Participant at such times and in such amounts, and subject to such other
terms and conditions not inconsistent with the Plan, as it shall determine.
Such stock bonuses shall only be granted in lieu of cash compensation
otherwise payable to an employee.
 
                                SECTION 11
 
              AMENDMENT, MODIFICATION, AND TERMINATION OF PLAN
              ------------------------------------------------
 
      11.1   GENERAL. The Board may from time to time amend, modify or
terminate any or all of the provisions of the Plan, subject to the provisions
of this Section 11.1. The Board may not change the Plan in a manner which
would prevent outstanding Incentive Stock Options granted under the Plan from
being Incentive Stock Options without the written  consent of the optionees
concerned. Furthermore, the Board may not make any amendment which would (i)
materially modify the requirements for participation in the Plan, (ii)
increase the number of shares of Stock subject to Awards under the Plan
pursuant to Section 5.1, or (iii) change the minimum exercise price for stock
options as provided in Section 6.2, in each case without the approval of a
majority of the outstanding shares of Stock entitled to vote thereon. No
amendment or modification shall affect the rights of any Employee with
respect to a previously granted Award, nor shall any amendment or
modification affect the rights of any Eligible Director pursuant to a
previously granted Director Award, without the written consent of the
Employee or Eligible Director.
 
      11.2   TERMINATION OF PLAN. No further Options shall be granted under
the Plan subsequent to September 30, 2010, or such earlier date as may be
determined by the Board.
 
                               SECTION 12
 
                       MISCELLANEOUS PROVISIONS
                       ------------------------
 
      12.1   NONTRANSFERABILITY OF AWARDS. Except as otherwise provided by
the Committee, no Awards granted under the Plan may be sold, transferred,
pledged, assigned, or otherwise alienated or hypothecated, other than by will
or by the laws of descent and distribution.
 
      12.2   BENEFICIARY DESIGNATION. Each Participant under the Plan may
from time to time name any beneficiary or beneficiaries (who may be named
contingent or successively) to whom any benefit under the Plan is to be paid
or by whom any right under the Plan is to be exercised in case of his death.
Each designation will revoke all prior designations by the same Participant
shall be in a form prescribed by the Committee, and will be effective only
when filed in writing with the Committee. In the absence of any such
designation, Awards outstanding at death may be exercised by the
Participant's surviving spouse, if any, or otherwise by his estate.
 
      12.3   NO GUARANTEE OF EMPLOYMENT OR PARTICIPATION. Nothing in the Plan
shall interfere with or limit in any way the right of the Company or any
Subsidiary to terminate any Participant's employment at any time, nor confer
upon any Participant any right to continue in the employ of the Company or
any Subsidiary. No Employee shall have a right to be selected as a
Participant, or, having been so selected, to receive any future Awards.
 
 
 
 
 
                                       68
 
<PAGE>
 
                                                                   EXHIBIT 10.1
 
 
      12.4   TAX WITHHOLDING. The Company shall have the power to withhold,
or require a Participant or Eligible Director to remit to the Company, an
amount sufficient to satisfy federal, state, and local withholding tax
requirements on any Award under the Plan, and the Company may defer issuance
of Stock until such requirements are satisfied. The Committee may, in its
discretion, permit a Participant to elect, subject to such conditions as the
Committee shall impose, (i) to have shares of Stock otherwise issuable under
the Plan withheld by the Company or (ii) to deliver to the Company previously
acquired shares of Stock, in each case having a Fair Market Value sufficient
to satisfy all or part of the Participant's estimated total federal, state
and local tax obligation associated with the transaction.
 
      12.5   CHANGE OF CONTROL. On the date of a Change of Control (as herein
defined), all outstanding Options and Stock Appreciation Rights shall become
immediately exercisable and all restrictions with respect to Restricted Stock
shall lapse. Change of Control shall mean:
 
             (a)   The acquisition (other than from the Company) by any person,
      entity or "group," within the meaning of Section 13(d)(3) or 14(d)(2) of
      the Act (excluding any acquisition or holding by (i) the Company or its
      subsidiaries (ii) any employee benefit plan of the Company or its
      subsidiaries which acquires beneficial ownership of voting securities of
      the Company) of beneficial  ownership (within the meaning of Rule 13d-3
      promulgated under the Act) of 30% or more of either the then outstanding
      shares of common stock or the combined voting power of the Company's then
      outstanding voting securities entitled to vote generally in the election
      of directors; or
 
             (b)   Individuals who, as of the date hereof, constitute the Board
      (as of the date hereof the "Incumbent Board") cease for any reason to
      constitute at least a majority of the Board, provided that any person
      becoming a director subsequent to the date hereof whose election, or
      nomination for the election by the Company's stockholders, was approved
      by a vote of at least a majority of the directors then comprising the
      Incumbent Board shall be, for purposes of this Plan, considered as though
      such person were a member of the Incumbent Board; or
 
             (c)   Approval  by  the  stockholders  of the  Company  of a
      reorganization, merger or consolidation, in each case, in which the
      Company is not the surviving entity and with respect to which persons
      who were the stockholders of the Company immediately  prior  to such
      reorganization,  merger  or consolidation do not, immediately thereafter,
      own more than 50% of the combined voting power entitled to vote generally
      in the election of directors of the reorganized, merged or consolidated
      company's then outstanding voting securities, or a liquidation or
      dissolution of the Company or of the sale of all or substantially all of
      the assets of the Company.
 
      12.6   AGREEMENTS WITH COMPANY. An Award under the Plan shall be
subject to such terms and conditions, not inconsistent with the Plan, as the
Committee may, in its sole discretion, prescribe. The terms and conditions of
any Award to any Participant shall be reflected in such form of written
document as is determined by the Committee or its designee.
 
      12.7   COMPANY INTENT. The Company intends that the Plan comply in all
respects with Rule 16b-3 under the Act, and any ambiguities or
inconsistencies in the construction of the Plan shall be interpreted to give
effect to such intention.
 
 
 
 
 
                                       69
 
<PAGE>
 
                                                                   EXHIBIT 10.1
 
 
      12.8   REQUIREMENTS OF LAW. The granting of Awards and the issuance of
shares of Stock shall be subject to all applicable laws, rules, and
regulations, and to such approvals by any governmental agencies or securities
exchanges as may be required.
 
      12.9   EFFECTIVE DATE. The Plan shall be effective upon its adoption by
the Board subject to approval by the Company's stockholders at the 2000
annual stockholders' meeting.
 
      12.10  GOVERNING LAW. The Plan, and all agreements hereunder, shall be
construed in accordance with and governed by the laws of the State of
Delaware.
 
 
 
 
 
                                       70
 

 

Exhibit 10.12

CONAGRA FOODS, INC.

AMENDED AND RESTATED
VOLUNTARY DEFERRED COMPENSATION PLAN

The ConAgra Foods, Inc. Amended and Restated Voluntary Deferred Compensation Plan (the “Plan”) is adopted effective January 1, 2005.  The Plan is established and maintained by ConAgra Foods, Inc. for the purpose of permitting certain key employees of the Company and of corporations which are related to the Company to defer the receipt of a portion of their income and/or participate in any appreciation in the value of Company Stock.  Accordingly, ConAgra Foods, Inc. hereby adopts the Plan pursuant to the terms and provisions set forth below:

ARTICLE I

DEFINITIONS

1.1           Account.  The term “Account” means the bookkeeping account established by the Company to which Compensation Deferral Contributions, and earnings and losses thereon, are credited.

1.2           Beneficiary.  The term “Beneficiary” means one or more persons or other entities designated by the Participant to receive the benefits payable by reason of the Participant’s death as provided under this Plan.  The designation shall be in writing on a form approved by the Committee, signed by the Participant and delivered to the Committee to be valid.  If the Participant makes no valid designation, or if the designated primary and secondary Beneficiaries fail to survive the Participant or otherwise fail to elect to receive such benefits, Participant’s Beneficiary shall then be the first of the following persons who survives the Participant:  (i) the Participant’s spouse (that is, the person to whom the Participant is legally married at the time of the Participant’s death), (ii) the Participant’s surviving issue, per stirpes, or (iii) the personal representative(s) of the Participant’s estate, to be administered and distributed as part of such estate.  The Participant may change his designated Beneficiary by delivering a new written designation of beneficiary form to the Committee on a form approved by the Committee.

1.3           Board.  The term “Board” means the Company’s Board of Directors.

1.4           Change of Control Event.  The term “Change of Control Event” means a Change in Ownership of the Company, a Change in Effective Control of the Company, or a Change in the Ownership of a Substantial Portion of the Company’s Assets.  For purpose of this Plan:

(i)                                     Change in Ownership of the Company.  A “Change in Ownership of the Company” occurs on the date that any one person or entity, or more than one person or entity acting as a Group acquires ownership of stock of the Company that, together with stock held by such person, entity or Group, constitutes more than fifty percent (50%) of the total fair market value of the Company or of the total voting power of the stock of the Company; provided, however, if any one person or entity, or more than one person or entity acting as a Group, is considered to own more than fifty percent (50%) of the total fair market value or total voting power of the stock of the Company, the acquisition of additional stock by the same person, entity or Group is not considered to cause a Change in Ownership of the Company (or a Change in Effective Control of the Company).

(ii)                                  Change in Effective Control of the Company.  A “Change in Effective Control of the Company” occurs on the date that either:

(a)                               Any one person or entity, or more than one person or entity acting as a Group, acquires or has acquired during the twelve (12) month period ending on the date of the most recent

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Exhibit 10.12

acquisition by such person, entity or Group ownership of stock of the Company possessing thirty-five percent (35%) or more of the total voting power of the stock of the Company; or

 

(b)                               A majority of the members of the relevant corporation’s board of directors is replaced during any twelve (12) month period by directors whose appointment or election is not endorsed by a majority of the members of the relevant corporation’s board of directors prior to the date of the appointment or election.

(iii)                               Change in the Ownership of a Substantial Portion of the Company’s Assets.  A “Change in the Ownership of a Substantial Portion of the Company’s Assets” occurs on the date that any one person or entity, or more than one person or entity acting as a Group, acquires or has acquired during the twelve (12) month period ending on the date of the most recent acquisition by such person, entity or Group assets from the Company that have a total gross fair market value equal to or more than forty percent (40%) of the total gross fair market value of all of the assets of the Company immediately prior to such acquisition or acquisitions.  For purposes of this Section, the term “gross fair market value” means the value of the assets of the Company, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets.  However, a Change in the Ownership of a Substantial Portion of the Company’s Assets does not occur if the assets are transferred to one of the following (as determined immediately after the asset transfer):

(a)                               A shareholder of the Company in exchange for or with respect to such shareholder’s stock;
(b)                               An entity, fifty percent (50%) or more of the total value or voting power of which is owned, directly or indirectly, by the Company;
(c)                                A person, or more than one person acting as a Group, that owns, directly or indirectly, fifty percent (50%) or more of the total value or voting power of all the outstanding stock of the Company; or
(d)                               An entity, at least fifty percent (50%) of the total value or voting power of which is owned, directly or indirectly, by a person described in paragraph (c).
For purposes of this Section, the term “Group” shall have the meaning within Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 and shall include the owners of a corporation that enter into a merger, consolidation, purchase or acquisition of stock, or similar business transaction with the Company, but shall not include persons or entities who would otherwise be considered a Group solely because such persons or entities purchase or own stock of the Company at the same time or as a result of the same public offering.  The attribution rules of Code Section 318(a) shall apply in determining stock ownership.

1.5           Code.  The term “Code” means the Internal Revenue Code of 1986, as amended from time to time.

1.6           Committee.  The term “Committee” means a special committee appointed by the Chief Executive Officer of the Company (“CEO”) to administer the Plan.  The initial members of the Committee shall be the Chairman of the Board, the Vice Chairman of the Board and the Company’s Senior Vice President of Human Resources.  The CEO may appoint and remove members of the Committee by providing advance written notice to the individual of such appointment or removal.

1.7           Company.  The term “Company” means ConAgra Foods, Inc., a Delaware corporation, or, to the extent provided in Section 10.5 below, any successor corporation or other entity resulting from a merger or consolidated into or with the Company or a transfer or sale of substantially all of the assets of the Company.

1.8           Compensation Deferral Agreement.  The term “Compensation Deferral Agreement” means the written compensation deferral agreement entered into by a Participant with the Company pursuant to this Plan.

1.9           Disability.  A Participant has a “Disability” or shall be considered “Disabled” if the Participant is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income

127

 



Exhibit 10.12

replacement benefits for a period of not less than three (3) months under the Company’s long-term disability plan.

1.10         Early Retirement.  The term “Early Retirement” means termination of employment with the Employer by a Participant who has at least ten (10) years of service with the Employer and who is at least age fifty-five (55).

1.11         Effective Date.  The original Plan was effective December 5, 1996.  This amendment and restatement is effective January 1, 2005.

1.12         Employer.  The term “Employer” means the Company and any Related Company that the Company has authorized to participate in the Plan as to its employees.

1.13         ERISA.  The Employee Retirement Income Security Act of 1974, as amended from time to time.

1.14         Normal Retirement.  The term “Normal Retirement” means termination of employment with the Employer by a Participant who is at least age sixty-five (65).

1.15         Participant.  The term “Participant” means any eligible employee covered by the Plan in accordance with the provisions of Article II.

1.16         Plan.  The term “Plan” means the ConAgra Foods, Inc. Amended and Restated Voluntary Deferred Compensation Plans as set forth herein, and as may be amended from time to time.

1.17         Plan Year.  The term “Plan Year” means the calendar year.

1.18         Related Company.  The term “Related Company” means: (i) any corporation that is a member of a controlled group of corporations (as defined in Code Section 414(b) that includes the Company); (ii) any trade or business (whether or not incorporated) that is under common control (as defined in Code section 414(c)) with the Company; (iii) any member of an affiliated service group (as defined in Code Section 414(m)) that includes the Company; and (iv) any other entity required to be aggregated with the Company pursuant to final or temporary regulations under Code Section 414(o).

ARTICLE II

ELIGIBLE EMPLOYEES

Employees eligible to participate in the Plan shall be those employees of the Employer selected by, and at the sole and absolute discretion of, the Human Resources Committee of the Board (“HR Committee”).  Each Participant shall continue to participate in the Plan until the earlier of the HR Committee determining the Employee shall no longer participate or the Participant no longer being employed by an Employer.

ARTICLE III

DEFERRALS

3.1  Employee Deferrals.  Prior to the beginning of each Plan Year, a Participant may elect to have a portion of his pay deposited in the Plan (“Compensation Deferral Contribution”).  The minimum deposit shall be five percent (5%) of the Participant’s base salary or short-term incentive.  The maximum deposit shall be fifty percent (50%) of the Participant’s normal salary and fifty percent (50%) of the Participant’s short-term incentive.  The Participant’s election shall be made in accordance with the rules and regulations of the Committee and in accordance with a Compensation Deferral Agreement.  The Compensation Deferral Contribution shall be credited to the Participant’s Account under the Plan as soon as reasonably practicable

128

 



Exhibit 10.12

following the date the Participant would have otherwise been entitled to receive cash compensation absent an election to defer under this Section 3.1.

3.2  Employer Contributions.  No Employer contributions will be made to the Plan.

ARTICLE IV

INVESTMENTS AND PARTICIPANT ACCOUNTS

4.1  Investments.  The Committee shall select the investments available with respect to the Participant’s interests in the Plan.  Each Participant shall select, in accordance with the rules and procedures established by the Committee, the method of investing the Participant’s Account.  Transfers among investments and changes in investment elections may only be made in accordance with the rules, procedures and limitations established by the Committee.

4.2  ConAgra Stock.  Notwithstanding Section 4.1, shares of Company common stock (“ConAgra Stock”) shall be an investment available for selection by Participants.  If ConAgra Stock is selected by a Participant, ConAgra Stock shall be acquired by the Plan through the trust described in Section 4.4 below.  The ConAgra Stock will be provided through the ConAgra Employee Flexible Bonus Payment Plan and the ConAgra 1995 Stock Plan, or any subsequent Stock Plan adopted by the Company which allows for such.  An account (“Participant’s ConAgra Stock Account’) shall be established for the Participant for the number of shares of ConAgra Stock purchased with respect to the Compensation Deferral Contributions to the Participant’s Account.  The Participant’s ConAgra Stock Account shall be credited with dividends paid on the shares of ConAgra Stock credited to the Participant’s ConAgra Stock Account.  Such dividends shall be reinvested in the ConAgra Stock Account in a manner similar to Employee Deferral Contributions.  Upon distribution to a Participant, amounts held in a Participant’s ConAgra Stock Account shall be paid in ConAgra Stock.  If installment payments are made, each distribution shall include ConAgra Stock in proportion to the ConAgra Stock held in the Participant’s Account.

4.3  Participant’s Accounts.  A separate account shall be established for each Participant in the Plan (“Participant’s Account”).  Each Participant’s Account shall be adjusted for Compensation Deferral Contributions and earnings and losses.  Each Participant’s Account shall be valued as often as determined by the Committee, but at least one (1) time per Plan Year.

4.4  Funding.  Notwithstanding any other provisions of the Plan, this Plan shall be unfunded and the Participants in this Plan shall be no more than general, unsecured creditors of the Employer with regard to benefits payable pursuant to this Plan.  The Company, by action of the Committee, shall establish a trust to hold ConAgra Stock acquired pursuant to Section 5.2 above.  Such trust shall be subject to all the provisions of this Plan, shall be property of the Company until distributed, and shall be subject to the Company’s general, unsecured creditors and judgment creditors.  Such trust shall not be deemed to be collateral security for fulfilling any obligation of the Employer to the Participants.

ARTICLE V

DISTRIBUTIONS

5.1  Termination of Employment.  Upon termination of employment for reasons other than death, Disability, or Early or Normal Retirement, the Participant’s Account shall be paid in one (1) lump sum payment.  The payment shall be made as soon as reasonably practicable following the date of the Participant’s termination of employment.

5.2  Disability or Retirement.  Upon termination of employment because of Disability or Early or Normal Retirement, a Participant’s Account shall be paid over a ten (10) year period.  The first payment shall be made as soon as reasonably practicable following the date of the Participant’s termination of employment with annual payments over the next nine (9) years.  A Participant’s Account shall share in earnings and losses during the payout period.

5.3  Death.  Upon the death of the Participant before distribution of the Participant’s entire Account (whether employed or not at the time of death), the Participant’s Account shall be paid to the Participant’s Beneficiary as soon as reasonably practicable following the death of the Participant.

129

 



Exhibit 10.12

5.4  Change of Control Event.  Upon a Change of Control Event, the Participant’s Account shall be paid to the Participant in one (1) lump sum payment within thirty (30) days of the Change of Control Event.

5.5  Withholding.  The Employer may withhold any federal, state or local taxes required with respect to any distribution hereunder.  The Participant shall take whatever action the Committee deems appropriate with respect to withholding of taxes, including, but not limited to the Participant remitting to the Company any taxes required to be withheld by the Company under federal, state or local law as a result of the payment.

5.6  Distributions to Specified Employees.  Notwithstanding any provision of the Plan to the contrary, upon a Participant’s separation from service, if a Participant is a “Specified Employee”, no portion of his or her Account shall be distributed before the date which is six (6) months after the date of separation from service, or if earlier, the date of death of the Participant.  A “Specified Employee” is a key employee, as defined under Code Section 416(i), without regard to paragraph (5) thereof (and any successor or comparable Code sections).

ARTICLE VI

ADMINISTRATION

6.1  Plan Administrator.  The operation of the Plan shall be under the exclusive supervision of the Committee.  It shall be a principal duty of the Committee to see that the Plan is carried out in accordance with its terms, and for the exclusive benefit of persons entitled to participate in the Plan without discrimination.  The Committee shall have full and exclusive power to administer and interpret the Plan in all of its details; subject, however, to the requirements of ERISA and all pertinent provisions of the Code.  For this purpose, the Committee’s powers will include, but will not be limited to, the following authority, in addition to all other powers provided by this Plan:

(i)                                    to make and enforce such rules and regulations as the Committee deems necessary or proper for the efficient administration of the Plan;

(ii)                                 to interpret the Plan, the Committee’s interpretations thereof in good faith to be final, conclusive and binding on all persons claiming benefits under the Plan;

(iii)                              to decide all questions concerning the Plan and the eligibility of any person to participate in the Plan and to receive benefits provided under the Plan;

(iv)                             to approve and authorize the payment of benefits;

(v)                                to appoint such agents, counsel, accountants and consultants as may be required to assist in administering the Plan; and

(vi)                             to allocate and delegate the Committee’s fiduciary responsibilities under the Plan and to designate other person to carry out any of the Committee’s fiduciary responsibilities under the Plan, any such allocation, delegation or designation to be in accordance with Section 405 of ERISA.

No Committee member shall be involved in a decision that only affects that member’s benefit under the Plan, if any.

6.2      Claims.  A claim for benefits under the Plan shall be made in writing by the Participant, or, if applicable the Participant’s executor or administrator or authorized representative, (collectively, the “Claimant”) to the Committee within sixty (60) days of the event by which the Claimant claims he or she is entitled to receive benefits under the Plan.

6.3      Claim Denials; Claim Appeals.  If a claim for benefits under the Plan is denied, the Claimant shall be

130

 



Exhibit 10.12

notified, in writing, within sixty (60) days after the claim is filed.  The notice shall be written in a manner calculated to be understood by the Claimant and shall set forth: (i) the specific reason(s) for the denial; (ii) specific references to the pertinent Plan provisions on which the denial is based; (iii) a description of any additional material or information necessary for the Claimant to perfect the claim and an explanation as to why such information is necessary; and (iv) an explanation of the Plan’s appeal procedure.

Within sixty (60) says after receipt of the above material, the Claimant shall have a reasonable opportunity to appeal the claim denial to the Committee for a full and fair review.  The Claimant may: (i) request a review upon written notice to the Committee; (ii) review pertinent documents; and (iii) submit issues and comments in writing.

A decision by the Committee shall be made not later than sixty (60) days after receipt of a request for review, unless special circumstances require an extension of time for processing, in which event a decision should be rendered as soon as possible, but in no event later than one hundred twenty (120) days after such receipt.  The decision of the Committee shall be written and shall include specific reasons for the decision, written in a manner calculated to be understood by the Claimant, with specific references to the pertinent Plan provision on which the decision is based.

ARTICLE VII

AMENDMENT OR TERMINATION

7.1  Amendment or Termination.  The Company reserves the right to amend or terminate the Plan at its sole and absolute discretion.  Any such amendment or termination shall be made pursuant to a resolution of the HR Committee and shall be effective as of the date of such resolution unless the resolution specifies a different effective date.

7.2  Effect of Amendment or Termination.  No amendment or termination of the Plan shall directly or indirectly reduce the balance of any Account held hereunder as of the effective date of such amendment or termination.  Upon termination of the Plan, distribution of amounts credited to the Account shall be made to the Participant or his or her Beneficiary in the manner and at the time described in Article V of the Plan.  The Participant’s Account will continue to share in earnings and losses until complete distribution of the sums credited to the Account.

ARTICLE VIII

PRE-JANUARY 1, 2005 DEFERRALS

For amounts deferred under the Plan prior to January 1, 2005, together with the earnings thereon (collectively the “Grandfathered Amounts”), the following provisions of this Article VIII shall apply.  If a provision of this Article VIII does not otherwise provide, then the remaining provisions of the Plan shall govern the Grandfathered Amounts.

8.1      Definition of Change of Control.  The term “Change of Control” means:

(i)                                    The acquisition (other than from the Company) by any person, entity or “group”, within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the “Exchange Act”), (excluding, for this purpose, the Company or its subsidiaries, or any employee benefit plan of the Company or its subsidiaries which acquires beneficial ownership of voting securities of the Company) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of thirty percent (30%) or more of either the then outstanding shares of common stock or the combined voting power of the Company’s then outstanding securities entitled to vote generally in the election of directors;

(ii)                                 Individuals who, as of the date hereof, constitute the Board (as of the date hereof the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board, provided that any person becoming a director subsequent to the date hereof whose election, or nomination for election by the Company’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be, for purposes of the Plan, considered as though such person were a member of the Incumbent Board; or

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(iii)                              Consummation of a reorganization, merger, consolidation, in each case, with respect to which persons who were the stockholders of the Company immediately prior to such reorganization, merger or consolidation do not, immediately thereafter, own more than fifty percent (50%) of the combined voting power entitled to vote generally in the election of directors of the reorganized, merged or consolidated company’s then outstanding voting securities, or a liquidation or dissolution of the Company or of the sale of all or substantially all of the assets of the Company.

8.2      Definition of Disability.  The term “Disability” means total and permanent disability as determined pursuant to the Company’s long-term disability plan.

8.3      Distribution upon Disability or Retirement.  Upon termination of employment because of Disability or Early or Normal Retirement, a Participant’s Account shall be paid over a ten (10) year period.  The first payment shall be made as soon as reasonably practicable following the date of the Participant’s termination of employment with annual payments over the next nine (9) years.  A Participant’s Account shall share in earnings and losses during the payout period.  Notwithstanding the preceding, a Participant who is receiving his or her distribution in installments, or who expects to receive his or her distribution in installments, may request that the Committee distribute the Grandfathered Amounts in the Participant’s Account in one (1) lump sum payment.  The Participant shall provide the Committee information regarding the reasons for requesting a lump sum distribution, supporting facts and documents and any other information requested by the Committee.  The Committee, in its sole and absolute discretion, may grant the lump sum distribution if the facts and circumstances warrant such a distribution.  Examples of when the Committee should determine that a lump sum distribution is warranted are financial hardships beyond the reasonable control of the Participant.

8.4      Distribution Upon Change of Control.  Upon a Change of Control, the Grandfathered Amounts in the Participant’s Account shall be paid to the Participant in one (1) lump sum payment within thirty (30) days of the Change of Control.

8.5      Distribution Upon Elective Withdrawal By Participant.  A Participant may elect to withdraw all of the Grandfathered Amounts held in his or her Account.  In the event of such elective withdrawal of Grandfathered Amounts, the Participant shall receive a distribution of ninety percent (90%) of the Grandfathered Amounts in the Participant’s Account and forfeit the remaining ten percent (10%).

8.6      Distribution Upon Termination by Corporate Successor.  The Plan shall not be automatically terminated by a transfer or sale of assets of the Company or by the merger or consolidation of the Company into or with any other corporation or other entity, but the Plan shall be continued after such sale, merger or consolidated only if and to the extent that the transferee, purchaser or successor entity agrees to continue the Plan.  In the event that the Plan is not continued by the transferee, purchaser or successor entity, then the Plan shall terminate and the Grandfathered Amounts in the Participant’s Account shall be distributed to the Participant in one (1) lump sum payment within thirty (30) days of such termination.

8.7      Distributions to Specified Employees.  Distributions of Grandfathered Amounts may be distributed, as permitted by the Plan, to Specified Employees (as defined in Section 5.6) prior to the date which is six (6) months after the date of separation from service, or if earlier, the date of death of the Participant.

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Exhibit 10.12

ARTICLE IX

409A COMPLIANCE

The Plan has been amended and restated as of January 1, 2005 for purposes of complying with the provisions of Code Section 409A.  With respect to amounts other than Grandfathered Amounts, the Plan shall be interpreted to comply with Code Section 409A and not to cause income inclusion of a Participant’s Account (and any related penalty and interest) until such amount or amounts are actually distributed to such Participant.  If the Company determines that any benefit hereunder cannot be provided without causing income inclusion, penalties or interest to a Participant prior to actual distribution or distributions of his or her Account, the Company agrees to amend the Plan as necessary to comply with Code Section 409A.

ARTICLE X

GENERAL PROVISIONS

10.1                No Guarantee of Benefits.  Nothing contained in the Plan shall constitute a guarantee by the Company or any other person or entity that the assets of the Company will be sufficient to pay any benefit hereunder.

10.2                No Enlargement of Employee Rights.  No Participant shall have any right to receive a distribution of contributions made under the Plan except in accordance with the terms of the Plan.  Establishment of the Plan shall not be construed to give any Participant the right to be retained in the service of the Employer.

10.3                Spendthrift Provision.  No interest of any person or entity in, or right to receive a distribution under, the Plan shall be subject in any manner to sale, transfer, assignment, pledge, attachment, garnishment, or other alienation or encumbrance of any kind; nor may such interest or right to receive a distribution be taken, either voluntarily or involuntarily for the satisfaction of the debts of, or other obligations or claims against, such person or entity, including claims for alimony, support, separate maintenance and claims in bankruptcy proceedings, other than by will or the laws of descent.

10.4                Incapacity of Recipient.  If any person entitled to a distribution under the Plan is deemed by the Company to be incapable of personally receiving or giving a valid receipt for such payment, then, unless and until claim therefore shall have been made by a duly appointed guardian or other legal representative of such person, the Company may provide for such payment or any part thereof to be made to any other person or institution then contributing toward or providing for the care and maintenance of such person.  Any such payment shall be a payment of the account of such person and a complete discharge of any liability of the Company and the Plan therefore.

10.5                Corporate Successors.  The Plan shall not be automatically terminated by a transfer or sale of assets of the Company or by the merger or consolidation of the Company into or with any other corporation or other entity, but the Plan shall be continued after such sale, merger or consolidated only if and to the extent that the transferee, purchaser or successor entity agrees to continue the Plan.  In the event that the Plan is not continued by the transferee, purchaser or successor entity, then the Plan shall terminate and the termination provision of Section 8.2 shall apply.

10.6                Governing Law.  The Plan shall be construed and administered under the laws of the State of Nebraska to the extent federal law is not applicable.

10.7                Offsets.  When any payment becomes due hereunder, the Company, without notice, demand, or any other action, may withhold payment and use the funds to offset any amounts owed by the Participant to the Company or any of its affiliates.

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