Exhibit 10.1


 


AGREEMENT


 


Agreement made this          
day of                        ,
        , by and between ConAgra
Foods, Inc., a Delaware corporation, hereinafter referred to as “ConAgra”, and                             ,
hereinafter referred to as “Employee”.


 


WHEREAS, the Board of Directors of ConAgra
(“Board”) has determined that the interests of ConAgra stockholders will be
best served by assuring that all key corporate executives of ConAgra will
adhere to the policy of the Board with respect to any event by which another
entity would acquire effective control of ConAgra, including but not limited to
a tender offer, and


 


WHEREAS, the Board has also determined that
it is in the best interests of ConAgra stockholders to promote stability among
key executives and employees.


 


NOW, THEREFORE, it is agreed as follows:


 


1.             Duties
of Employee.  Employee shall support the
position of the Board and the chief executive officer, and shall take any
action requested by the Board or the chief executive officer with respect to
any “Change of Control” (as defined at Section 7 below) of ConAgra.  If the Employee violates the provisions of
this Section, the Employee shall forfeit any payments due under the terms of
this Agreement.


 


2.             Employment
Contract.  If a Change of Control of
ConAgra occurs, and if at the initiation of the Change of Control attempt
Employee is then employed by ConAgra, ConAgra hereby agrees to continue the
employment of Employee for a period of three years from the date the Change of
Control effectively occurs.  During said
three year period, Employee shall receive annual base and incentive
compensation in an amount not less than that specified in Section 3(a) below.


 


If Employee is Involuntarily Terminated (as
defined at Section 7 below), at any time during the three year period, ConAgra
shall pay to Employee an amount equal to that which Employee would have
received pursuant to Section 3(a) below for the remainder of the three year
period, and shall also make the payments specified in Sections 3(b) and 3(c)
and, if applicable, any additional payments specified in Section 5 below.  In addition, in the event of Involuntary
Termination at any time, Employee shall receive payment of the base and
incentive compensation described in Section 3(a) for one year.  Any such termination payment of base and
incentive compensation shall be made to Employee in a lump sum within thirty
(30) days after termination.


 


If Employee voluntarily terminates employment
at any time during the three year period, the Acquiror (as defined below),
ConAgra, and their subsidiaries will not be obligated to pay the Employee any
amount that might be due for the remainder of the three year period, or for any
termination pay; however, they shall make any additional payments specified in
Sections 3(b), 3(c) and 5 (if applicable) below.


 


3.             Description of Payments.  The payments to be made to Employee are:


 


(a)           Annual Base and Incentive Compensation.  Employee shall receive for the three year
period described in Section 2 above an annual amount equal to the Employee’s
current annual rate of compensation, which current annual compensation shall be
computed as follows:  twenty-six times
the Employee’s highest bi-weekly salary payment received during the one year
period ending immediately prior to the Change of Control of ConAgra.  In addition, Employee shall receive (i) an
amount for short term incentive equal to the larger of (I) the short term
incentive target, if any, most recently approved by the Human Resources
Committee of the Board (“Committee”), and (II) the highest of the three actual
short term incentive awards (including deferred amounts) made to Employee for
the three fiscal years immediately preceding such Change of Control, plus (ii)
an amount for the Long Term Senior Management Incentive Plan Award equal to the
highest per unit award made during the three fiscal years immediately preceding
such Change of Control multiplied by the


 


 


24

















 


Exhibit 10.1 (continued)


 


number of units of participation
approved by the Committee for the current fiscal year.


 


(b)           Retirement Benefits.  Employee shall receive an amount equal to
that which the Employee would have received as retirement benefits under the
provisions of the ConAgra Pension Plan for Salaried Employees (“Qualified
Pension Plan”) and the ConAgra Retirement Income Savings Plan (“CRISP”) in
effect immediately prior to the Change of Control of ConAgra, had Employee
continued employment until age 65 at the current annual rate of base and short
term incentive compensation as determined above and assuming no limitations
under Sections 401(a)(17) and 415 of the Internal Revenue Code of 1986, as
amended (“Code”).


 


(i)            The supplemental pension
benefit hereunder shall be equal to the result of subtracting (x) the benefit
the Employee will receive under the Qualified Pension Plan from (y) the pension
benefit the Employee would obtain under the Qualified Pension Plan if the
Employee remained in the employ of ConAgra until the Employee attained age
65.  The supplemental pension benefit is
to be computed assuming the Employee is to receive an unreduced normal
retirement pension benefit payable beginning at the later of the date the
Employee attains age 60 or the date of the Employee’s termination of
employment.  If the Employee begins to
receive the supplemental pension benefit at a time other than as described in
the preceding sentence, an actuarial adjustment shall be made to reflect such
event.  The supplemental pension benefit
shall be reduced by the amount of benefit received from the ConAgra
Nonqualified Pension Plan (or any successor plan) which relates to periods
following the Employee’s termination of employment.


 


(ii)           The supplemental CRISP
benefit shall be equal to the amount computed, as follows:


 


A.                                   The additional years of service that the
Employee would receive if employment was not terminated prior to attaining age
65 is multiplied by the Employee’s current annual base and short term incentive
compensation (as described in Section 3(a)).


 


B.                                     The result in A, immediately above, is
multiplied by 3%.


 


C.                                     The result in B, immediately above, is
present valued to the date of the Employee’s termination of employment.  The discount factor for such present value
shall be the discount factor used by the Qualified Pension Plan at the time of
such termination of employment.  The
present value shall be computed based on the assumption that the result in B,
immediately above, is paid ratably (and monthly) over the additional years of
service of the Employee.


 


D.                                    The present value amount determined pursuant
to C, immediately above, shall be funded pursuant to Subsection (iv) of this
Section 3(b).


 


(iii)          For purposes of computing
the amounts described in Sections 3(b)(i)(y) and 3(b)(ii)A, the following shall
apply:


 


A.            The total amount of current annual base pay and short
term incentive pay (as described in Section 3(a)) shall be used without any


 


25

















 


Exhibit 10.1 (continued)


 


reduction for the limitation imposed
upon compensation by Code Section 401(a)(17) (or any successor section
thereto).


 


B.                                     The limitations imposed by Code Section 415
shall not apply.


 


C.                                     If, at the time of termination, the Employee
is not eligible to participate in the Qualified Pension Plan, the amount
computed under Section 3(b)(1) shall be based solely on the years after
termination of employment.


 


D.                                    If, at the time of termination, the Employee
is not eligible to participate in the Qualified Plan, but does participate in a
defined benefit plan of ConAgra, its successor, or one of their affiliates
(“Other Defined Benefit Plan”), the Employee shall receive an additional
supplemental benefit equal to the result of subtracting (x) the benefit the
Employee will receive from the Other Defined Benefit Plan from (y) the benefit
the Employee would receive from the Other Defined Benefit Plan assuming the
Employee is to receive an unreduced normal retirement pension benefit payable
beginning at the later of the date the Employee attains age 60 or the date of
the Employee’s termination and assuming the Employee’s pay, for purposes of
calculating the Employee’s Other Defined Benefit Plan benefit, is, and always
has been, equal to the Employee’s current annual base pay and short term
incentive (as described in Section 3(a)).


 


(iv)          The actuarial assumptions
and methods used by this Section 3(b) shall be the same as those used by the
Qualified Pension Plan.  The timing of
payment and the form of the supplemental pension benefit under this Section
3(b) shall be the same as elected by the Employee under the Qualified Pension
Plan and the timing of payment and the form of the supplemental CRISP benefit
shall be the same as elected by the Employee under CRISP.  If the Employee does not participate in the
Qualified Pension Plan and/or CRISP, the Employee shall elect (from the
respective options under the Qualified Pension Plan and CRISP) the timing and
form of the supplemental pension and CRISP benefits;


 


(v)           The supplemental pension
and CRISP benefits payable under this Section 3(b) shall be unfunded until a
Voluntary Termination or Involuntary Termination following a Change of
Control.  Within 60 days following such
a termination, the supplemental pension and CRISP benefits shall be funded, in
one lump sum payment, through a trust in the form attached to the ConAgra
Supplemental Pension and CRISP Plan for Change of Control and which trust is
incorporated by reference.  The
transferred amount for the supplemental CRISP benefit shall be held in a
separate account and separately invested by the trustee.  The amount accumulated in such account shall
be the sole source of payment of the supplemental CRISP benefit, and shall be
the amount of the supplemental CRISP benefit hereunder.  The Acquiror, ConAgra and their subsidiaries
shall make up any supplemental pension benefit payments the Employee does not
receive under the trust, e.g., if the funds in the trust are insufficient to
make the payments due to insufficient earnings in the trust.  The trustee of such trust shall be a
national or state chartered bank.  If
funding of the trust is not made within the sixty day period described in this
Subsection (iv) of this Section 3(b), the Employee’s supplemental pension and
CRISP


 


26

















 


Exhibit 10.1 (continued)


 


benefits shall then be equal to the product of
150% multiplied by the amount of supplemental pension and CRISP benefits
described in this Section 3(b) above; provided, however, this increase in
benefits is not intended to remove or detract from the obligation to fund the
trust.  The supplemental pension and
CRISP benefits shall not be paid from the assets of the Qualified Pension Plan
or CRISP.


 


(c)  Additional Payment.  If a
Change of Control of ConAgra occurs, Employee shall receive an amount equal to
the excess, if any, of the highest per share price offered (valued in U.S.
currency) by the successful Acquiror for ConAgra common stock (which stock will
then be treated for purposes of this Agreement as converted into equivalent
shares of such Acquiror’s or the surviving company’s capital stock as of the
date of the Change of Control of ConAgra) over the closing per share price of
such Acquiror’s or the surviving company’s (“Acquiror”) stock quoted on an
established securities market (or if applicable, the closing bid price for the
Acquiror’s stock that is quoted on a secondary market or substantial equivalent
thereof) on the date of termination (or if the date of termination is not a
business day, on the next preceding business day), multiplied by the highest
number of shares of the Acquiror’s capital stock owned by the Employee at any
time during the period beginning on the date of the Change of Control of
ConAgra and ending on the date of termination. 
For purposes of this Section 3(c), the additional amount due hereunder
shall be computed as if Employee owned all of the Acquiror’s stock with respect
to which Employee has an option to purchase in connection with employment with
the Acquiror, ConAgra or any of their subsidiaries.  Said amount shall be paid to Employee within ten days after
termination.  In addition, if Employee
sells any of the Acquiror’s stock within one year following said termination,
Employee shall receive the amount by which the closing price of such stock per
share on the date of termination (determined as aforesaid) exceeds the per
share actual net sales price of the Acquiror’s stock on the date of sale
realized by Employee, multiplied by the number of shares sold by Employee.  Said amount shall be paid in immediately
available funds to Employee within ten days after the sale.  In addition, to the extent any of ConAgra’s
common stock remains outstanding after a Change of Control, then Employee shall
receive additional amounts computed and payable in a manner similar to that
provided in this Section 3(c) for Acquiror’s stock owned, or subject to an
option held, by Employee.  These
provisions shall be appropriately modified or adjusted to take into account the
fact that the computations pursuant to the preceding sentence are with respect
to ConAgra common stock and related options rather than the Acquiror’s capital
stock and options related thereto.  The
computations and payments under this Section 3(c) shall include appropriate
adjustments for any stock splits, stock dividends, recapitalizations or similar
share restructurings that may occur from time to time.


 


4.             Merger. 
ConAgra shall not merge, reorganize, consolidate or sell all or
substantially all of its assets, to or with any other corporation until such
corporation and its subsidiaries, if any, expressly assume the duties of
ConAgra set forth herein.


 


5.             Certain Additional Payments by ConAgra.


 


(a)  Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any payment or distribution by ConAgra to
or for the benefit of the Employee, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise (a
“Payment”), would be subject to the excise tax imposed by Section 4999 of the
Code or any interest or penalties with respect to such excise tax (such excise
tax, together with any such interest and penalties, are hereinafter
collectively referred to as the “Excise Tax”), then the Employee shall be
entitled to receive an additional payment (a “Gross-Up Payment”) in any amount
such that after payment by the Employee of all taxes (including any interest or
penalties imposed with respect to such taxes), including any Excise


 


27

















 


Exhibit 10.1 (continued)


 


Tax, imposed upon the Gross-Up
Payment, the Employee retains an amount of the Gross-Up Payment equal to the
Excise Tax imposed upon the Payments.


 


(b)  Subject to the provisions of Subsection (c) below, all
determinations required to be made under this Section, including whether a
Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be
made by the certified public accounting firm then representing ConAgra (the
“Accounting Firm”) which shall provide detailed supporting calculations both to
ConAgra and the Employee within 15 business days of the date of termination, if
applicable, or such earlier time as is requested by ConAgra or Employee.  If the Accounting Firm determines that no
Excise Tax is payable by the Employee, it shall furnish the Employee with an
opinion that Employee has substantial authority not to report any Excise Tax on
the Employee’s federal income tax return. 
Any determination by the Accounting Firm shall be binding upon ConAgra
and the Employee.  As a result of the
uncertainty in the application of Section 4999 of the Code at the time of the
initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by ConAgra should have been made
(“Underpayment”), consistent with the calculations required to be made
hereunder.  In the event that ConAgra
exhausts its remedies pursuant to Subsection (c) below and the Employee
thereafter is required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by ConAgra to or for the benefit of the
Employee.


 


(c)  The Employee shall notify ConAgra in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by
ConAgra of the Gross-Up Payment.  Such
notification shall be given as soon as practicable but no later than ten (10)
business days after the Employee knows of such claim and shall apprise ConAgra
of the nature of such claim and the date on which such claim is requested to be
paid.  The Employee shall not pay such
claim prior to the expiration of the thirty-day (30 day) period following the
date on which it gives such notice to ConAgra (or such shorter period ending on
the date that any payment of taxes with respect to such claim is due).  If ConAgra notifies the Employee in writing
prior to the expiration of such period that it desires to contest such claim,
the Employee shall:


 


(i)                                     give ConAgra any
information reasonably requested by ConAgra relating to such claim,


 


(ii)                                  take such action in
connection with contesting such claim as ConAgra shall reasonably request in
writing from time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney reasonably selected by
ConAgra,


 


(iii)                               cooperate with ConAgra in
good faith in order to effectively contest such claim,


 


(iv)                              permit ConAgra to
participate in any proceedings relating to such claim; provided, however, that
ConAgra shall bear and pay directly all costs and expenses (including
additional interest and penalties) incurred in connection with such contest and
shall indemnify and hold the Employee harmless, on an after-tax basis, for any
Excise Tax or income tax, including interest and penalties with respect
thereto, imposed as a result of such representation and payment of costs and
expenses.  Without limitation on the
foregoing provisions of this Subsection (c), ConAgra shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forego any and all administrative appeals,


 


28

















 


Exhibit 10.1 (continued)


 


proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option, either
direct the Employee to pay the tax claimed and sue for a refund or contest the
claim in any permissible manner, and the Employee agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as ConAgra shall
determine; provided, however, that if ConAgra directs the Employee to pay such
claim and sue for a refund, ConAgra shall advance the amount of such payment to
the Employee, on an interest-free basis and shall indemnify and hold the
Employee harmless, on an after-tax basis, from any Excise Tax or income tax,
including interest or penalties with respect thereto, imposed with respect to
such advance or with respect to any imputed income with respect to such
advance; and further provided that any extension of the statute of limitations
relating to payment of taxes for the taxable year of the Employee with respect
to which such contested amount is claimed to be due is limited solely to such
contested amount.  Furthermore,
ConAgra’s control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and the Employee shall be
entitled to settle or contest, as the case may be, any other issue raised by
the Internal Revenue Service or any other taxing authority.


 


(d)                                 If, after the receipt by the Employee of an
amount advanced by ConAgra pursuant to Subsection (c) above, the Employee
becomes entitled to receive any refund with respect to such claim, the Employee
shall (subject to ConAgra’s complying with the requirements of Subsection (c))
promptly pay to ConAgra the amount of such refund (together with any interest
paid or credited thereon after taxes applicable thereto).  If, after the receipt by the Employee of an
amount advanced by ConAgra pursuant to Subsection (c), a determination is made
that the Employee shall not be entitled to any refund with respect to such
claim and ConAgra does not notify the Employee in writing of its intent to
contest such denial of refund prior to the expiration of thirty days after such
determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid.


 


6.             Term and Binding Effect.  This Agreement shall bind ConAgra and
Employee as long as Employee remains in the employ of ConAgra; provided,
however, ConAgra may terminate this Agreement at any time by giving notice to
Employee; and provided further, however, that ConAgra may not terminate this
Agreement at any time subsequent to the announcement of an event that could
result in a Change of Control of ConAgra. 
This Agreement shall be binding upon the parties hereto, their heirs,
executors, administrators and successors.


 


7.             Certain Definitions.  The following definitions shall apply for
the purposes of this Agreement:


 


(a)           Change
of Control of ConAgra.  The term “Change
of Control” shall mean:


 


(i)            The acquisition (other than from ConAgra) 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, ConAgra or its subsidiaries, or any employee benefit plan of ConAgra
or its subsidiaries, which acquires beneficial ownership of voting securities
of ConAgra) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the


 


29

















 


Exhibit 10.1 (continued)


 


Exchange Act) of 30% or more of
either the then outstanding shares of common stock or the combined voting power
of ConAgra’s then outstanding voting securities entitled to vote generally in
the election of directors; or


 


(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 ConAgra’s shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be, for
purposes of this Agreement, considered as though such person were a member of
the Incumbent Board; or


 


(iii)          Consummation of a reorganization, merger, consolidation, in
each case, with respect to which persons who were the shareholders of ConAgra
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 ConAgra or of the sale of all or substantially all of its
assets.


 


(b)           Involuntary Termination.  The term “Involuntary Termination” or any
variation thereof shall mean either (i) the actual involuntary termination of
Employee’s employment with the Acquiror, ConAgra and their subsidiaries after a
Change of Control (with or without cause) or (ii) the constructive involuntary
termination of the Employee’s employment with the Acquiror, ConAgra and their
subsidiaries after a Change of Control. 
The term “constructive involuntary termination” shall include (w) a
reduction in the Employee’s compensation (including applicable fringe
benefits); (x) a substantial change in the location of the Employee’s job
without the Employee’s written consent; (y) the Employee’s demotion or
diminution in the Employee’s position, authority, duties or responsibilities
without the Employee’s written consent; or (z) the sale or disposition of the
stock of Employee’s immediate employer, which was a subsidiary of the Acquiror,
ConAgra, or their other subsidiaries immediately prior to such sale or
disposition, provided Employee is not employed after such sale or disposition
by the Acquiror, ConAgra, or any of their subsidiaries that are retained after
such sale or disposition.  “Substantial
change in location” means any location change in excess of 35 miles from the
location of the Employee’s job with ConAgra or its subsidiaries at the time of
the Change of Control of ConAgra.


 


8.             Costs.  All costs of litigation necessary for the
Employee to defend the validity of this contract are to be paid by ConAgra or
its successors or assigns.


 


9.             Prior
Agreements.  This Agreement supersedes,
restates and replaces any and all prior agreements to which both ConAgra and
the Employee are parties with respect to the Change of Control of ConAgra.


 


IN WITNESS WHEREOF, the parties have executed
this Agreement.


 


	
  EMPLOYEE:

  	
   

  	
   

  	
  CONAGRA FOODS, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Chairman and

  
	
   

  	
   

  	
   

  	
  Chief Executive Officer

  



 


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