As filed with the Securities and Exchange Commission on December __, 2002.
Registration Statement No. _________
===============================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------------
ConAgra Foods, Inc.
(Exact name of registrant as specified in its charter)
Delaware 47-0248710
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One ConAgra Drive
Omaha, Nebraska 68102-5001
(402) 595-4000
(Address, including zip code, and telephone number, including
area code, of registrant's principal corporate offices)
James P. O'Donnell
Executive Vice President and Chief Financial Officer
ConAgra Foods, Inc.
One ConAgra Drive
Omaha, Nebraska 68102-5001
(402) 595-4000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------
Copies to:
David L. Hefflinger, Esq.
McGrath North Mullin & Kratz, PC LLO
Suite 3700 First National Tower
1601 Dodge Street
Omaha, Nebraska 68102
------------------------
Approximate date of commencement of proposed sale to the public: From
time to time after this registration statement becomes effective.
If the securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are being
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
CALCULATION OF REGISTRATION FEE
-------------------------- -------------- --------------------------- -------------------------- ---------------------
Title of each class of Amount to be Proposed maximum offering Proposed maximum Amount of
securities to be registered (2) price per unit (3) aggregate registration fee
registered(1) offering price (4)
-------------------------- -------------- --------------------------- -------------------------- ---------------------
Common Stock (5)
Preferred Stock
Debt Securities ..... $4,000,000,000 _____ $4,000,000,000 $368,000
-------------------------- -------------- --------------------------- -------------------------- ---------------------
(1) Such indeterminate number or amount of common stock, preferred stock or debt
securities of ConAgra Foods, Inc. as may be issued from time to time at
indeterminate prices.
(2) In no event will the aggregate initial offering price
of the common stock, preferred stock and debt securities exceed $4,000,000,000
or the equivalent thereof in one or more foreign currencies or composite
currencies.
(3) Not specified as to each class of securities to be registered pursuant to
General Instruction II.D of Form S-3 under the Securities Act of 1933. The
proposed maximum offering price per unit will be determined from time to time by
the registrant in connection with, and at the time of, the issuance by the
registrant of the securities registered hereunder.
(4) Estimated solely for the purpose of calculating the registration fee.
(5) This registration statement also applies to preferred share purchase rights
which are attached to and trade with each share of common stock.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON THE DATES AS
NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT FILES A FURTHER
AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT WILL BE
EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL
THE REGISTRATION STATEMENT BECOMES EFFECTIVE ON SUCH DATE AS THE COMMISSION,
ACTING PURSUANT TO SECTION 8(a), MAY DETERMINE.
PROSPECTUS
$4,000,000,000
CONAGRA FOODS, INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
----------------------------
We may offer and issue debt securities and shares of our common stock
and preferred stock from time to time. This prospectus describes the general
terms of these securities and the general manner in which we will offer them. We
will describe in a prospectus supplement, which must accompany this prospectus,
the specific terms of the securities and the specific manner in which we will
offer the securities.
Our common stock is listed on the New York Stock Exchange under the
symbol "CAG." On __________, 2002, the closing price of our common stock was
$_____ per share.
----------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
-----------------------
We may offer the securities in amounts, at prices and on terms
determined at the time of offering. We may sell the securities directly to you,
through agents we select, or through underwriters and dealers we select. If we
use agents, underwriters or dealers to sell the securities, we will name them
and describe their compensation in a prospectus supplement.
The date of this prospectus is __________, 2002.
TABLE OF CONTENTS
About This Prospectus....................................................2
Forward-Looking Statements...............................................2
The Company..............................................................3
Pro Forma Effect of SFAS No. 142 Adoption................................4
Use of Proceeds..........................................................4
Ratio of Earnings to Fixed Charges.......................................5
Description of Debt Securities...........................................5
Description of Capital Stock............................................16
Plan of Distribution....................................................19
Experts.................................................................20
Legal Matters...........................................................20
Where You Can Find More Information.....................................21
ABOUT THIS PROSPECTUS
This prospectus is a part of a registration statement that we filed with
the Securities and Exchange Commission (the "SEC") under the shelf registration
process. We may sell debt securities, preferred stock and common stock. The
total sales of all securities sold under this prospectus, however, may not
exceed $4,000,000,000. This prospectus provides you with a general description
of the securities we may offer. Each time we sell securities, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this prospectus
and any prospectus supplement together with additional information described
under the heading "Where You Can Find More Information."
You should rely only on the information contained in this prospectus,
in the accompanying prospectus supplement and in material we file with the SEC.
We have not authorized anyone to provide you with any other information that is
different. We are offering to sell, and seeking offers to buy, the securities
described in the prospectus only where offers and sales are permitted. The
information contained in this prospectus, the prospectus supplement and our
filings with the SEC is accurate only as of its date, regardless of the time of
delivery of this prospectus and the prospectus supplement or of any sale of the
securities.
FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements, including
statements in the documents incorporated by reference in this prospectus. The
statements reflect management's current views and estimates of future economic
circumstances, industry conditions, our performance and financial results. The
statements are based on many assumptions and factors including availability and
prices of raw materials, product pricing, competitive environment and related
market conditions, operating efficiencies, access to capital and actions of
governments. Any changes in these assumptions or factors could produce
significantly different results.
THE COMPANY
We are a leading packaged food company providing branded and value-added
products for a wide variety of retail, food services and ingredients food
customers. We report our financial results in four reportable segments: Packaged
Foods, Food Ingredients, Meat Processing and Agricultural Products.
In the Packaged Foods segment, we produce shelf-stable foods,
frozen and refrigerated foods which are processed and packaged for sales
primarily to retail and foodservice customers. Shelf stable major brands include
Hunt's, Healthy Choice, Chef Boyardee, Wesson, Orville Redenbacher's, PAM, Slim
Jim, Act II, Peter Pan, Van Camp's, Gulden's, Beanee Weenee, Manwich, Hunt's
Snack Pack, Swiss Miss, Knott's Berry Farm, Bumble, La Choy, Gebhardt, David's,
Wolf Brand, Pemmican, Penrose and Andy Capp's. Shelf-stable products include
tomato products, pasta products, cooking oils, popcorn, soup, puddings, meat
snacks, canned beans, canned pasta, tuna, canned chili, cocoa mixes and peanut
butter for retail, foodservice, institutional and specialty market customers.
Frozen food major brands include Healthy Choice, Banquet, Marie
Callender's, Kid Cuisine, MaMa Rosa's, Papa G's, Gilardi's, Lamb Weston, Holly
Ridge, Fernando's, Rosarita, The Max, Morton, Patio, LaChoy, Artel and Wolfgang
Puck. Frozen food products include dinners, pizzas, entrees, snacks, ice cream,
potato products, hand-held doughbased products and seafood for retail,
foodservice, institutional and specialty market customers.
Refrigerated food major brands include Armour, Butterball, Cook's, Country
Pride, Decker, Eckrich, Healthy Choice, To-Ricos, Texas BBQ, Ready Crisp, Casa
de Oro, Hebrew National, Brown `N Serve, Golden Star, Lightlife, National Deli,
Parkay, Blue Bonnet, Fleischmann's, Egg Beaters, County Line, Reddi-wip and
Treasure Cave. Refrigerated food products include hot dogs, bacon, ham,
sausages, cold cuts, turkey products, ethnic foods, kosher products, meat
alternative products (e.g., soy-based hot dogs and patties) tablespreads,
cheeses, egg alternatives and dessert toppings for retail, foodservice,
institutional and specialty market customers.
The Food Ingredients segment includes our nongrain-based ingredients, such
as processed seasonings, blends and flavorings and spices as well as grain-based
items which are processed for ingredient use.
In our Meat Processing segment, we produce and market fresh chicken for
retail and foodservice customers.
In the Agricultural Products segment, our major crop inputs business
distributes crop protection chemicals, fertilizers, seeds and information
services at wholesale and retail levels. Major brands include Clean Crop, ACA,
Savage, Shotgun, Saber, Signature and Loveland Industries. Within this segment,
we also merchandise, originate, market and trade agricultural and energy
commodities and byproducts.
Over time, acquisitions and operations have contributed to our sales and
earnings growth. Our more significant acquisitions have included Beatrice
Company in 1990, Golden Valley Microwave Foods in 1992 and International Home
Foods in 2001. In recent years, ConAgra Foods has been pursuing a strategy to
improve margins and returns with a focus on branded and value-added food
products. In September 2002, the company sold a controlling interest in its
fresh beef and pork operations to Swift Foods Company.
We are a Delaware corporation with executive offices located at One ConAgra
Drive, Omaha, Nebraska 68102-5001, telephone (402) 595-4000.
PRO FORMA EFFECT OF SFAS NO. 142 ADOPTION
We adopted SFAS No. 142, "Goodwill and Other Intangible Assets" ("SFAS
142"), at the beginning of fiscal 2003. SFAS 142 provides that goodwill and
intangible assets with indefinite lives (such as brands and trademarks) which
were previously amortized, will no longer be amortized, but instead will be
tested for impairment of value on an annual basis. The following table shows, on
a pro forma basis, what our net income and earnings per share would have been
for the indicated periods, assuming SFAS No. 142 had been in effect for those
periods:
Fiscal Years Ending
Net Income (in millions): May 2002 May 2001 May 2000
-------- -------- --------
Reported net income....................................... $ 783.0 $ 638.6 $ 382.3
Add goodwill amortization (net of tax).................. 97.6 86.2 59.0
Add brand/trademark amortization (net of tax)........... 18.8 19.4 9.4
---------- ---------- ----------
Adjusted net income....................................... $ 899.4 $ 744.2 $ 450.7
========== ========== ==========
Earnings per share - basic:
Reported net income....................................... $ 1.48 $ 1.24 $ 0.80
Add goodwill amortization (net of tax).................. 0.19 0.17 0.12
Add brand/trademark amortization (net of tax)........... 0.04 0.04 0.02
--------- --------- ---------
Adjusted net income....................................... $ 1.71 $ 1.45 $ 0.94
========= ========= =========
Earnings per share - diluted:
Reported net income....................................... $ 1.47 $ 1.24 $ 0.80
Add goodwill amortization (net of tax).................. 0.18 0.17 0.12
Add brand/trademark amortization (net of tax)........... 0.04 0.04 0.02
--------- --------- ---------
Adjusted net income....................................... $ 1.69 $ 1.45 $ 0.94
========= ========= =========
USE OF PROCEEDS
Unless the applicable prospectus supplement states otherwise, the net
proceeds from the sale of the securities will be added to our general funds and
may be used to:
o meet our working capital requirements;
o fund capital expenditures;
o repay commercial paper and repay loans under bank credit
agreements; and
o repay other short and intermediate term borrowings.
Until the net proceeds have been used, they will be invested in
short-term marketable securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges
for the periods indicated.
Thirteen Weeks Ended Fiscal Years Ended May
-------------------------------------------
August 25, 2002 2002 2001 2000 1999 1998
--------------- ---- ---- ---- ---- ----
Ratio of Earnings to Fixed Charges............ 4.2 3.3 2.9 2.3 2.3 3.1
In our fiscal year ended May 30, 1999, pre-tax income includes
restructuring charges of $440.8 million. Excluding the charges, the ratio of
earnings to fixed charges for 1999 is 3.2.
In our fiscal year ended May 28, 2000, pre-tax income includes
restructuring and restructuring-related charges of $621.4 million. Excluding the
charges, the ratio of earnings to fixed charges for 2000 is 3.6.
In September 2002, the company transferred its fresh beef and pork
processing business to a new venture, 54% owned by an investor group and 46%
owned by the company. If the sale had occurred at the beginning of the fiscal
year ended May 26, 2002, the ratio of earnings to fixed charges for 2002 would
have been 3.2 and for the thirteen weeks ended August 25, 2002 the ratio of
earnings to fixed charges would have been 3.9.
For purposes of computing the above ratio of earnings to fixed charges,
earnings consist of income before taxes and fixed charges. Fixed charges, for
the purpose of computing earnings, are adjusted to exclude interest capitalized.
Fixed charges include (1) interest on both long- and short-term debt, whether
the interest is expensed or capitalized and including interest charged to
cost-of-goods sold and (2) a portion of non-cancelable rental expense
representative of the interest factor. The ratio is computed using the amounts
for ConAgra Foods as a whole, including its majority-owned subsidiaries, and its
proportionate share of any 50%-owned subsidiaries, whether or not ConAgra Foods
guarantees obligations of the subsidiaries.
DESCRIPTION OF DEBT SECURITIES
Indentures
Our debt securities will be issued under one of the following indentures:
o a senior debt indenture, dated as of October 8, 1990, between us and
JPMorgan Chase Bank, successor to The Chase Manhattan Bank, as
trustee; or
o a subordinated debt indenture, dated as of March 10, 1994, between us
and U.S. Bank National Association, successor to First Trust National
Association, as trustee.
We refer to JPMorgan Chase Bank and U.S. Bank National Association in this
prospectus as trustee or trustees.
Debt Securities May Be Senior or Subordinated
We may issue senior or subordinated debt securities. The senior debt
securities will constitute part of our senior debt, will be issued under our
senior debt indenture and will rank on a parity with all of our other unsecured
and unsubordinated debt. The subordinated debt securities will be issued under
our subordinated debt indenture and will be subordinate and junior in right of
payment to all of our senior indebtedness, as described below. If this
prospectus is being delivered in connection with a series of subordinated debt
securities, the accompanying prospectus supplement or the information we
incorporate in this prospectus by reference will indicate the approximate amount
of senior indebtedness outstanding as of the end of the most recent fiscal
quarter. We refer to our senior debt indenture and our subordinated debt
indenture individually as an "indenture" and collectively as the "indentures."
We have summarized below the material provisions of the indentures and
the debt securities, or indicated which material provisions will be described in
the related prospectus supplement. These descriptions are only summaries, and
each investor should refer to the applicable indenture, which describes
completely the terms and definitions summarized below and contains additional
information regarding the debt securities.
Any reference to particular sections or defined terms of the applicable
indenture in any statement under this heading qualifies the entire statement and
incorporates by reference the applicable section or definition into that
statement. The indentures are substantially identical, except for the provisions
relating to limitations on liens and limitations on sales and leasebacks, which
are included in the senior debt indenture only, and to subordination, which are
included in the subordinated debt indenture only.
General
The indentures do not limit the amount of debentures, notes or other
evidences of indebtedness that we may issue under the indentures. Debt
securities may be issued under the indentures from time to time in one or more
series.
You should look in the prospectus supplement for the following terms of
the debt securities:
o classification as senior or subordinated debt securities and the
specific designation of such securities;
o the aggregate principal amount and purchase price;
o the currency in which the debt securities are denominated and/or in
which principal, any premium and any interest are payable;
o the date or dates on which the debt securities will mature and any
right to extend such dates or dates;
o the rate or rates, or the method by which such rate will be
determined, at which the debt securities will bear interest, if any,
and the dates on which any such interest will be payable;
o the place or places where the principal of, interest and premium, if
any, on the debt securities will be payable;
o the period or periods, if any, within which, the price or prices at
which, and the terms and conditions upon which, the debt securities
may be redeemed, in whole or in part, at our option or at your option;
o whether the debt securities will be issued in registered form or
bearer form and, if debt securities in bearer form are issued,
restrictions applicable to the exchange of one form for another and to
the offer, sale and delivery of debt securities in bearer form;
o whether and under what circumstances we will pay additional amounts on
debt securities held by a person who is not a U.S. person in respect
of any tax, assessment or governmental charge withheld or deducted,
and if so, whether we will have the option to redeem such debt
securities rather than pay such additional amounts;
o provisions for a sinking, or purchase or analogous fund; and
o any other specific terms of the debt securities, including any
additional events of default or covenants with respect to debt
securities, and any terms which may be required by or advisable under
United States laws or regulations.
You may present debt securities for exchange and you may present registered
debt securities for transfer in the manner, at the places and subject to the
restrictions set forth in the debt securities and the prospectus supplement. We
will provide you those services without charge, although you may have to pay any
tax or other governmental charge payable in connection with any exchange or
transfer, as set forth in the indentures. Debt securities in bearer form and any
related coupons will be transferable by delivery.
Debt securities will bear interest at a fixed rate or a floating rate. Debt
securities bearing no interest or interest at a rate which, at the time of
issuance, is below the prevailing market rate, may be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any such discounted debt securities or to certain
debt securities issued at par which are treated as having been issued at a
discount for United States federal income tax purposes will be described in the
applicable prospectus supplement.
We may issue debt securities with the principal amount payable on any
principal payment date, or the amount of interest payable on any interest
payment date, to be determined by reference to one or more currency exchange
rates, commodity prices or indices. You may receive a principal amount on any
principal payment date, or a payment of interest on any interest payment date,
that is greater than or less than the amount of principal or interest otherwise
payable on such dates, depending upon the value on such dates of the applicable
currency, security or basket of securities, commodity or index. Information as
to the methods for determining the amount of principal or interest payable on
any date, the currencies, commodities or indices to which the amount payable on
such date is linked and certain additional tax considerations will be set forth
in the applicable prospectus supplement.
There are no covenants or other specific provisions in the indentures to
afford protection to you in the event of a highly leveraged transaction or a
change in control of ConAgra Foods, except to the limited extent described under
the heading "Certain Covenants in the Senior Debt Indenture."
Subordination Provisions of the Subordinated Debt Indenture
There are contractual provisions in the subordinated debt indenture that
may prohibit us from making payments on our subordinated debt securities.
Subordinated debt securities are subordinate and junior in right of payment, to
the extent and in the manner stated in the subordinated debt indenture, to all
of our senior indebtedness.
The subordinated debt indenture defines "senior indebtedness" generally as
obligations of, or guaranteed or assumed by, ConAgra Foods for borrowed money or
evidenced by bonds, debentures, notes or other similar instruments, and
amendments, renewals, extensions, modifications and refundings of any of that
indebtedness or obligations. The subordinated debt securities and any other
obligations specifically designated as being subordinate in right of payment to
senior indebtedness are not senior indebtedness as defined under the
subordinated debt indenture.
The subordinated debt indenture provides that, unless all principal of and
any premium or interest on the senior indebtedness has been paid in full, or
provision has been made to make those payments in full, no payment of principal
of, or any premium or interest on, any subordinated debt securities may be made
in the event:
o of any insolvency or bankruptcy proceedings, or any receivership,
liquidation, reorganization or other similar proceedings involving us
or a substantial part of our property;
o a default has occurred in the payment of principal, any premium,
interest or other monetary amounts due and payable on any senior
indebtedness, and that default has not been cured or waived or has not
ceased to exist;
o there has occurred any other event of default with respect to senior
indebtedness that permits the holder or holders of the senior
indebtedness to accelerate the maturity of the senior indebtedness,
and that event of default has not been cured or waived or has not
ceased to exist; or
o that the principal of and accrued interest on any subordinated debt
securities have been declared due and payable upon an event of default
as defined under the subordinated debt indenture and that declaration
has not been rescinded and annulled as provided under the subordinated
debt indenture.
Certain Covenants in the Senior Debt Indenture
The restrictions described in this section apply to the senior debt
securities issued under the senior debt indenture unless the prospectus
supplement states otherwise. If these restrictions apply to a series of senior
debt securities, only a majority of the holders of such series can waive our
compliance. See "Modification of the Indenture." The following definitions from
the senior debt indenture are used in this section of the prospectus:
The senior debt indenture defines "Attributable Debt" as the present
value, determined as set forth in the senior debt indenture, of the obligation
of a lessee for rental payments for the remaining term of any lease.
The senior debt indenture defines "Consolidated Subsidiary" and
"Consolidated Subsidiaries" to mean a subsidiary or subsidiaries of ours the
accounts of which are consolidated with ours in accordance with generally
accepted accounting principles.
The senior debt indenture defines "Funded Indebtedness" as all
Indebtedness of a corporation which would, in accordance with generally accepted
accounting principles, be classified as funded indebtedness. Funded Indebtedness
will also, in any event, include all Indebtedness, whether secured or unsecured,
of a corporation which has a final maturity, or a maturity renewable or
extendable at the option of the corporation, more than one year after the date
as of which Funded Indebtedness is to be determined.
The senior debt indenture defines "Indebtedness" as any and all of our
obligations for money borrowed which in accordance with generally accepted
accounting principles would be reflected on our balance sheet as a liability as
of the date of which Indebtedness is to be determined.
The senior debt indenture defines "Lien" as any mortgage, pledge, security
interest or other lien or encumbrance.
The senior debt indenture defines "Net Tangible Assets" as the total amount
of assets of a corporation, both real and personal, less the sum of:
o all reserves for depletion, depreciation, obsolescence and/or
amortization of such corporation's property as shown by the books of
such corporation, other than general contingency reserves, reserves
representing mere appropriations of surplus and reserves to the extent
related to intangible assets which are excluded in calculating Net
Tangible Assets; and
o all indebtedness and other current liabilities of such corporation
other than Funded Indebtedness, deferred income taxes, reserves which
have been deducted pursuant to the above bullet point, general
contingency reserves and reserves representing mere appropriations of
surplus and liabilities to the extent related to intangible assets
which are excluded in calculating Net Tangible Assets.
The definition of Net Tangible Assets excludes licenses, patents, patent
applications, copyrights, trademarks, trade names, goodwill, experimental or
organizational expense and other like intangibles, treasury stock and
unamortized discount and expense.
The senior debt indenture defines "Principal Property" to mean, as of any
date, any building structure or other facility together with the underlying land
and its fixtures, used primarily for manufacturing, processing or production, in
each case located in the United States, and owned or leased or to be owned or
leased by us or any Consolidated Subsidiary, and in each case the net book value
of which as of such date exceeds 2% of our consolidated Net Tangible Assets as
shown on the audited consolidated balance sheet contained in our latest annual
report to our stockholders, other than any such land, building, structure or
other facility or portion thereof which, in the opinion of our board of
directors, is not of material importance to the business conducted by us and our
Consolidated Subsidiaries, considered as one enterprise.
The senior debt indenture defines "Sale and Lease-Back Transactions" as any
arrangement with any person providing for the leasing by us or any Consolidated
Subsidiary of any Principal Property that we or any of our Consolidated
Subsidiaries have sold or transferred or are about to sell or transfer to such
person. However, the definition does not include temporary leases for a term of
not more than three years or transactions between us and a Consolidated
Subsidiary.
Limitation on Liens
The senior debt indenture states that, unless the terms of any series of
senior debt securities provide otherwise, we will not and we will not permit any
Consolidated Subsidiary to issue, assume or guarantee any Indebtedness secured
by a Lien upon or with respect to any Principal Property or on the capital stock
of any Consolidated Subsidiary that owns any Principal Property unless:
o we provide that the debt securities will be secured by such Lien
equally and ratably with any and all other obligations and
indebtedness secured thereby; or
o the aggregate amount of
o all of our Indebtedness and of our Consolidated Subsidiaries,
o together with all Attributable Debt in respect of Sale and
Lease-Back Transactions existing at such time, with the exception
of transactions which are not subject to the limitation described
in "Limitation on Sale and Lease-Back Transactions" below,
does not exceed 10% of our consolidated Net Tangible Assets, as shown
on the audited consolidated balance sheet contained in our latest
annual report to our stockholders.
This limitation on liens will not apply to:
o any Lien existing on any Principal Property on October 8, 1990;
o any Lien created by a Consolidated Subsidiary in our favor or in
favor of any wholly-owned Consolidated Subsidiary;
o any Lien existing on any asset of any corporation at the time
such corporation becomes a Consolidated Subsidiary or at the time
such corporation is merged or consolidated with or into us or a
Consolidated Subsidiary;
o any Lien on any asset which exists at the time of the acquisition
of the asset;
o any Lien on any asset securing Indebtedness incurred or assumed
for the purpose of financing all or any part of the cost of
acquiring or improving such asset, if such Lien attaches to such
asset concurrently with or within 180 days after its acquisition
or improvement;
o any Lien incurred in connection with pollution control,
industrial revenue or any similar financing; or
o any refinancing, extension, renewal or replacement of any of the
Liens described under the heading Limitations on Liens if the
principal amount of the Indebtedness secured thereby is not
increased and is not secured by any additional assets.
Limitation on Sale and Lease-Back Transactions
The senior debt indenture states that, unless the terms of any series of
senior debt securities provide otherwise, neither we nor any Consolidated
Subsidiary may enter into any Sale and Lease-Back Transaction. Such limitation
will not apply to any Sale and Lease-Back Transaction if:
o the net proceeds to us or such Consolidated Subsidiary from the
sale or transfer equals or exceeds the fair value, as determined
by our board of directors, of the property so leased;
o we or such Consolidated Subsidiary would be entitled to incur
Indebtedness secured by a Lien on the property to be leased as
described under the heading "Limitation on Liens" above; or
o within 90 days of the effective date of any such Sale and
Lease-Back Transaction, we apply an amount equal to the fair
value, as determined by our board of directors, of the property
so leased to the retirement of Funded Indebtedness, other than
Funded Indebtedness we were otherwise obligated to repay within
such 90-day period.
Events of Default
An "Event of Default" is defined under the indentures with respect to a
series of debt securities as being:
o our default in the payment of any installment of interest, when
due, on any of the debt securities of such series and which
default continues for a period of 30 days;
o our default in the payment, when due, of the principal of, and
any premium on, any of the debt securities of such series,
whether the default in payment is at maturity, upon redemption,
upon acceleration or otherwise;
o our default in the performance or observance of any other term,
covenant or agreement contained in the indentures, for a period
of 90 days after written notice, as provided in the indentures,
other than a default on a covenant included in the indentures
solely for the benefit of a series of debt securities other than
such series;
o the occurrence of certain events of bankruptcy, insolvency or
reorganization; or
o our failure to comply with any other covenant the noncompliance
with which would specifically constitute an Event of Default with
respect to debt securities of such series.
If an Event of Default due to the default in payment of principal of, or
interest on, any series of debt securities or due to the default in the
performance of any covenants or agreements applicable to the debt securities of
such series but not applicable to all outstanding debt securities, occurs and is
continuing, either the applicable trustee or the holders of 25% in principal
amount of the debt securities of such series may then declare the principal of
all debt securities of such series and interest accrued thereon to be due and
payable immediately. However, with respect to debt securities issued under the
subordinated debt indenture, the payment of principal and interest on such debt
securities of such series will remain subordinated to the extent provided in
Article Thirteen of the subordinated debt indenture.
If an Event of Default due to the default in the performance of any
covenant or agreement in the indenture applicable to all outstanding debt
securities or due to certain events of bankruptcy, insolvency and reorganization
occurs and is continuing, either the applicable trustee or the holders of 25% in
principal amount of all debt securities then outstanding, treated as one class,
may declare the principal of all debt securities and interest accrued thereon to
be due and payable immediately. However, with respect to debt securities issued
under the subordinated debt indenture, the payment of principal and interest on
such debt securities of such series will remain subordinated to the extent
provided in Article Thirteen of the subordinated debt indenture.
Under certain circumstances, the holders of a majority in principal amount
of debt securities of a series may rescind a declaration that the principal and
accrued interest on a series of debt securities are due and payable immediately
or waive a past default. However, such holders may not waive a continuing
default in the payment of any principal of, or interest on, the debt securities
other than any principal which becomes due solely as a result of such
declaration.
The holders of a majority in principal amount of the outstanding debt
securities of any series may direct the time, method and place of conducting any
proceeding for any remedy available to the applicable trustee or exercising any
trust or power conferred on the trustees, provided that such direction may not
be in conflict with any rule of law or the indentures. Before proceeding to
exercise any right or power under the indentures at the direction of such
holders, the applicable trustee is entitled to receive from such holders
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by acting in compliance with any such direction.
We furnish to the trustees annually a statement of certain of our officers
to the effect that, to the best of their knowledge, we are not in default of the
performance of the terms of the indentures or, if they have knowledge that we
are in default, specifying the default.
The indentures provide that no holder of debt securities of a series issued
under the indentures may institute any action against us under the indentures,
except actions for payment of overdue principal or interest, unless all of the
following occurs:
o the holder gives written notice to the applicable trustee of the
continuing Event of Default;
o the holders of at least 25% in aggregate principal amount of such
series of debt securities make a written request to the
applicable trustee to pursue the remedy;
o such holder or holders offer the applicable trustee indemnity
satisfactory to the trustee against any costs, liability, or
expense which may be incurred;
o the applicable trustee does not comply with the request within 60
days after receiving the request and the offer of indemnity; and
o during such 60 day period, the holders of a majority in aggregate
principal amount of such series of debt securities do not give
the applicable trustee a direction that is inconsistent with the
request.
The indentures require the trustees to give all of the holders of
outstanding debt securities of any series, notice of any default by us with
respect to that series, unless the default has been cured or waived. Except in
the case of a default in the payment of principal of, and any premium, or
interest on any outstanding debt securities of that series or in the payment of
any sinking fund installment, the trustees are entitled to withhold such notice
in the event the board of directors, the executive committee or a trust
committee of directors or certain officers of the trustees in good faith
determines that withholding such notice is in the interest of the holders of the
outstanding debt securities of that series.
Discharge and Defeasance
The indentures will cease to be of further effect for debt securities of a
series, except for certain obligations listed below, if:
o we pay or cause to be paid the principal of and interest on all
of the debt securities of such series as and when the same become
due and payable;
o all debt securities of such series previously authenticated and
delivered are delivered by us to the trustees for cancellation;
or
o the debt securities of such series will become due and payable,
or by their terms, become due and payable within one year or are
to be called for redemption within one year under arrangements
satisfactory to the trustee for the giving of notice of
redemption; and
o we irrevocably deposit in trust with the applicable trustee ,
cash or, in the case of debt securities payable only in U.S.
dollars, U.S. government obligations (which through the payment
of interest and principal thereof in accordance with their terms
will provide sufficient cash) or a combination thereof,
sufficient in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification delivered to the trustee, to pay principal and
interest on all debt securities of such series when due and
payable and any mandatory sinking fund payments when due and
payable and
o we also pay or cause to be paid all other sums payable by us
under the indenture with respect to the debt securities of such
series.
The trustees will execute documents acknowledging the satisfaction and
discharge of the indentures with respect to the debt securities of such series
upon our presentation to the applicable trustee of certain officers'
certificates and counsel opinions as provided under the indentures.
In addition to the discharge of the indentures as described above, we will
be deemed to have paid and discharged the entire indebtedness on all debt
securities of a series, except for certain obligations listed below, on the
121st day after the irrevocable deposit described below if:
o we irrevocably deposit in trust with the applicable trustee
solely for the benefit of the holders of the debt securities of
such series, cash or, in the case of debt securities payable only
in U.S. dollars, U.S. government obligations (which through the
payment of interest and the principal thereof in accordance with
their terms will provide sufficient cash) or a combination
thereof, sufficient in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification delivered to the trustee, to pay the principal and
interest on all debt securities of such series when due and
payable and any mandatory sinking fund payments when due and
payable;
o such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which
we are a party or by which we are bound;
o we have delivered to the applicable trustee an officers'
certificate or an opinion of counsel satisfactory to the trustee
to the effect that the holders of the debt securities of such
series will not recognize income, gain or loss for federal income
tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same
amount and in the same manner and at the same times, as would
have been the case if such deposit, defeasance and discharge had
not occurred; and
o we have delivered to the applicable trustee an officers'
certificate and an opinion of counsel, each stating that all
conditions precedent for relating to the defeasance have been
complied with and the opinion of counsel also states that such
deposit does not violate applicable law.
Our obligations under the indentures for debt securities discharged in the
manner described in this section of the prospectus continue with respect to:
o the rights of registration of transfer and exchange of debt
securities of such series and our rights of
optional redemption, if any;
o the substitution of mutilated, defaced, destroyed, lost or stolen
debt securities of such series;
o the rights of holders of debt securities of such series to
receive payments of principal and interest on the original stated
due dates, but not upon acceleration, and the remaining rights of
the holders to receive mandatory sinking funds payments, if any;
o the rights and immunities of the trustees under the indentures;
o the rights of the holders of the debt securities of such series
with respect to the property deposited with the trustees payable
to all or any of them; and
o our obligation to maintain certain offices and agencies with
respect to the debt securities of such series.
In addition, with respect to the subordinated debt indenture, in order to
be discharged:
o there may be no event or condition described under "Subordination
Provisions of the Subordinated Debt Indenture" above which would
prevent us from making payments of principal of, and premium, if
any, and interest on the subordinated debt securities issued
under the subordinated debt indenture at the date of the
irrevocable deposit referred to above or at any time during the
period ending on the 121st day after such deposit date; and
o we deliver to the trustee an opinion of counsel to the effect
that (1) the trust funds will not be subject to any rights of
holders of senior indebtedness, and (2) after the 121st day
following the deposit, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally except that
if a court were to rule under any such law in any case or
proceeding that the trust refunds remained our property, then the
trustee and the holders of the debt securities issued under the
subordinated debt indenture would be entitled to certain rights
as secured creditors in such trust funds.
Modification of the Indentures
The indentures provide that we may enter into supplemental indentures with
the applicable trustee without the consent of the holders of debt securities to:
o secure any debt securities;
o evidence the assumption by a successor corporation of our obligations;
o add covenants for the protection of the holders of the debt
securities;
o cure any ambiguity or correct any inconsistency in the indentures;
o establish the form or terms of debt securities of any series; and
o evidence the acceptance of appointment by a successor trustee.
The indentures also contain provisions permitting us and the trustees, with
the consent of the holders of not less than a majority in principal amount of
debt securities of all series then outstanding and affected, to add any
provisions to, or change in any manner or eliminate any of the provisions of,
the indentures or modify in any manner the rights of the holders of the debt
securities of each series so affected, provided that we and the trustees may
not, without the consent of each holder affected thereby:
o extend the final maturity of any debt security of such series;
o reduce the principal amount of or interest on, any debt securities of
such series;
o change the currency in which the principal amount (including any
amount in respect of original issue discount) or interest payable on
any debt securities of such series is payable;
o reduce the amount of any debt securities of such series, which is an
original issue discount security, payable upon acceleration or
provable in bankruptcy;
o alter certain provisions of the indentures relating to the debt
securities of such series not denominated in U.S. dollars;
o impair the right to institute suit for the enforcement of any payment
on any debt securities of such series when due; or
o reduce the above-stated percentage of outstanding debt securities of
such series the consent of whose holders is necessary to modify or
amend and to waive certain provisions of or defaults under the
indenture.
In addition, the subordinated debt indenture may not be amended to alter
the subordination of any of the outstanding subordinated debt securities issued
under the subordinated debt indenture without the written consent of each holder
of senior indebtedness then outstanding that would be adversely affected.
Consolidation, Merger, Conveyance or Transfer
We may, without the consent of the trustees or the holders of debt
securities, consolidate or merge with, or convey, transfer or lease our
properties and assets substantially as an entirety to any other corporation,
provided that any successor corporation is a corporation organized under the
laws of the United States of America or any state thereof and that such
successor corporation expressly assumes all our obligations under the debt
securities and that certain other conditions are met, including there not being
any default in the performance of any conditions or covenants under the
indenture. Following such events, except in the case of a lease, we will be
relieved of all obligations under the debt securities.
Applicable Law
The debt securities and the indentures will be governed by and construed in
accordance with the laws of the State of New York.
Concerning the Trustee
JPMorgan Chase Bank, successor to The Chase Manhattan Bank, is the trustee
under the senior debt indenture and is also the trustee under a prior indenture
between us and JPMorgan Chase Bank.
The U.S. Bank National Association, successor to First Trust National
Association, is the trustee under the subordinated debt indenture.
JPMorgan Chase Bank and U.S. Bank National Association are among a number
of banks with which we and our subsidiaries maintain ordinary banking
relationships and with which we and our subsidiaries maintain credit facilities.
Global Securities
We may issue the debt securities of any series in the form of one or more
fully registered global debt securities, referred to in this prospectus as a
"global security." The global securities will be deposited with a depositary or
with a nominee for a depositary identified in the prospectus supplement relating
to such series and registered in the name of the depositary or its nominee. In
that case, one or more global securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate principal amount
of outstanding registered debt securities of the series to be represented by
such global securities. Unless and until the depositary exchanges a global
security in whole for debt securities in definitive registered form, the global
securities may not be transferred except as a whole:
o by the depositary to a nominee of the depositary;
o by a nominee of the depositary to the depositary or another nominee of
the depositary; or
o by the depositary or any nominee to a successor of the depositary or a
nominee of the successor.
The specific terms of the depositary arrangement with respect to any
portion of a series of debt securities to be represented by a global security
will be described in the prospectus supplement relating to such series. We
anticipate that the following provisions will apply to all depositary
arrangements.
Ownership of beneficial interests in a global security will be limited to
persons that have accounts with the depositary of such global security
("participants") or persons that may hold interests through participants. Upon
issuance of a global security, the depositary for such global security will
credit, on its book-entry registration and transfer system, the participants'
accounts with the respective principal or face amounts of the securities
represented by such global security beneficially owned by such participants. The
accounts to be credited shall be designated by any dealers, underwriters or
agents participating in the distribution of such securities. Ownership of
beneficial interest in such global security will be shown on, and the transfer
of such ownership interest will be effected only through, records maintained by
the depositary for such global security, with respect to interests of
participants, and on the records of participants, with respect to interests of
persons holding through participants. The laws of some states may require that
certain purchasers of securities take physical delivery of such securities in
definitive form. Such limits and such laws may impair the ability to own,
transfer or pledge beneficial interest in global securities.
So long as the depositary for a global security, or its nominee, is the
registered owner of such global security, such depositary or such nominee, as
the case may be, will be considered the sole owner or holder of all securities
represented by such global security for all purposes under the indentures.
Except as set forth below, owners of beneficial interests in a global security
will not be entitled to have the securities represented by such global security
registered in their names, will not receive or be entitled to receive physical
delivery of such securities in definitive form and will not be considered the
owners or holders thereof under the indentures. Accordingly, each person owning
a beneficial interest in a global security must rely on the procedures of the
depositary for such global security and, if such person is not a participant, on
the procedure of the participant through which such person owns its interest, to
exercise any rights of a holder under the indentures. We understand that under
existing industry practices, if we request any action of holders or if an owner
of a beneficial interest in a global security desires to give or to take any
action which a holder is entitled to give or take under the indentures, the
depositary for such global security would authorize the participants holding the
relevant beneficial interest to give or take such action, and such participants
would authorize beneficial owners owning through such participants to give or
take such action or would otherwise act upon the instructions of beneficial
owners holding through them.
Principal, premium, if any, and interest payments on debt securities
represented by a global security registered in the name of a depositary or its
nominee will be made to such depositary or its nominee, as the case may be, as
the registered owner of such global security. None of us, the trustees or any
paying agent for such debt securities will have any responsibility or liability
for any aspect of the records to or payments made on account of beneficial
ownership interests in such global security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
We expect that the depositary for any securities represented by a global
security, upon receipt of any payment of principal, premium or interest, will
immediately credit participants' accounts with payments in amounts proportionate
to their respective beneficial interests in the principal amount of such global
security as shown on the records of such depositary. We also expect that
payments by participants to owners of beneficial interest in such global
security held through such participants will be governed by standing
instructions and customary practices, as is now the case with the securities
held for the accounts of customers in bearer form registered in "street names,"
and will be the responsibility of such participants.
If the depositary for any securities represented by a global security is at
any time unwilling or unable to continue as depositary and we do not appoint a
successor depositary within ninety days or an Event of Default has occurred and
is continuing with respect to such debt securities, we will issue such
securities in definitive form in exchange for such global security. In addition,
we may at any time and in our sole discretion determine not to have the debt
securities of a series represented by one or more global securities and, in such
event, we will issue debt securities of such series in definitive form in
exchange for the global securities or securities representing such debt
securities.
Further, if we so specify with respect to the debt securities of a series,
an owner of a beneficial interest in global securities representing such debt
securities may, on terms acceptable to us and the depositary for such global
securities, receive such debt securities in definitive form. In any such
instance, an owner of a beneficial interest in such global security will be
entitled to have debt securities equal in principal amount to such beneficial
interest registered in its name and will be entitled to physical delivery of
such debt securities in definitive form. Debt securities issued in definitive
form will, except as set forth in the applicable prospectus supplement, be
issued in denominations of $1,000 and integral multiples of $1,000 in excess
thereof and will be issued in registered form only without coupons.
DESCRIPTION OF CAPITAL STOCK
General
Our authorized capital stock consists of 1,200,000,000 shares of common
stock, par value $5.00 per share; 150,000 shares of Class B preferred stock,
$50.00 par value; 250,000 shares of Class C preferred stock, $100.00 par value;
1,100,000 shares of Class D preferred stock, without par value; and 16,550,000
shares of Class E preferred stock, without par value. On December 2, 2002 there
were 536,979,514 shares of our common stock outstanding. No shares of preferred
stock are currently issued and outstanding.
Dividends on Capital Stock
ConAgra Foods Common Stock Dividend Policy. We have paid cash dividends
on our common stock each year since 1976. Our present policy is to continue to
pay quarterly cash dividends on our common stock. The payment of dividends and
their amount will, however, be dependent upon our earnings, financial position,
cash requirements and other factors deemed relevant by our board of directors in
its discretion, including the satisfaction of preferred stock dividend
requirements.
Dividend Rights. The board of directors may declare and pay dividends
on our common stock out of surplus or net profits. We anticipate that any
issuance of preferred stock would contain provisions granting the shares so
issued a preference over the common stock as to the payment of dividends.
Preferred Stock
We may issue preferred stock in series with rights and preferences as
authorized by our board of directors. We will distribute a prospectus supplement
with regard to each series of preferred stock. Each prospectus supplement will
describe, as to the preferred stock to which it relates:
o the title of the series;
o the voting rights of the holders of the preferred stock;
o the dividends, if any, which will be payable with regard to the
series;
o the terms, if any, on which the series may or will be redeemed;
o the preference, if any, to which holders of the series will be
entitled upon our liquidation;
o whether the preferred stock is to be issued in the form of
depositary shares and, if so, the depository for the preferred
shares and the specific terms of the depositary arrangements;
o the right, if any, of holders of the series to convert them into
another class of our stock or securities; and
o any other material terms of the series.
Common Stock
The holders of our common stock are entitled to one vote for each
share. Upon liquidation, the holders of our common stock are entitled to share
ratably in assets available for distribution to stockholders after satisfaction
of any liquidation preferences of any outstanding preferred stock. The issuance
of any shares of any series of preferred stock in future financings,
acquisitions or otherwise may result in dilution of voting power and relative
equity interest of the holders of shares of our common stock and will subject
our common stock to the prior dividend and liquidation rights of the outstanding
shares of the series of preferred stock.
The shares of our common stock offered under this prospectus will be
fully paid and non-assessable. Our common stock has no conversion rights nor are
there any redemption or sinking fund provisions with respect to the common
stock. Holders of our common stock have no pre-emptive right to subscribe for or
purchase any additional stock or securities of ConAgra Foods.
Voting Rights in Specific Cases
Article XIV of the ConAgra Foods certificate of incorporation requires,
with specific exceptions, a 75% affirmative vote of ConAgra Foods stock to
approve (1) a merger or consolidation with, (2) the issuance or transfer of
securities of ConAgra Foods in exchange for assets, securities or cash to, or
(3) the sale of all or a substantial part of the assets of ConAgra Foods to,
another person, corporation or other entity, that owns beneficially, directly or
indirectly, 5% or more of ConAgra Foods' outstanding capital stock entitled to
vote generally in the election of directors. The 75% voting requirement does not
apply if a majority of the outstanding shares of all classes of capital stock of
the other corporation entitled to vote generally in the election of directors,
considered as one class, is owned of record or beneficially by ConAgra Foods or
its subsidiaries, if the transaction was approved by a majority of ConAgra
Foods' board of directors prior to the time that the other entity became a
beneficial owner of 5% or more of ConAgra Foods' outstanding shares, or if the
transaction is approved by a three-fourths vote of ConAgra Foods' board of
directors at any time prior to its consummation.
Article XV of the ConAgra Foods certificate of incorporation requires
the approval of 95% of ConAgra Foods stock entitled to vote in the election of
directors, voting as one class, for any business combination with any other
entity, if, as of the applicable record date, the other entity is the beneficial
owner directly or indirectly of 30% of the outstanding shares of ConAgra Foods
stock entitled to vote. The 95% voting requirements shall be inapplicable if
fair price, dividend, proxy, and other procedures detailed in Article XV have
been observed by the other entity since it acquired 30% control. Article XV
cannot be amended, altered, changed or repealed without a 95% vote of all
stockholders of ConAgra Foods entitled to vote in an election of directors,
considered as one class, unless the amendment, alteration, change or repeal is
recommended to the stockholders by a vote of 80% of the directors who would be
eligible to serve as "continuing directors" as that term is defined in Article
XV.
Article XVI of the ConAgra Foods certificate of incorporation
prescribes relevant factors, including social and economic effects on employees,
customers, suppliers and other constituents of ConAgra Foods, to be considered
by the board of directors when reviewing any proposal by another corporation to
acquire or combine with ConAgra Foods.
Article XVII of the ConAgra Foods certificate of incorporation requires
that any action required or permitted to be taken by ConAgra Foods stockholders
must be effected at a duly called annual or special meeting of the stockholders
and may not be effected by a consent in writing by the stockholders.
Article XVIII of the ConAgra Foods certificate of incorporation
provides in general that any direct or indirect purchase by ConAgra Foods or any
subsidiary of ConAgra Foods of any of its voting stock, as defined in Article
XVIII, or rights to acquire voting stock, known to be beneficially owned by any
person or group that holds more than 3% of a class of its voting stock, referred
to in this paragraph as an interested stockholder, and that has owned the
securities being purchased for less than two years, must be approved by the
affirmative vote of at least a majority of the votes entitled to be cast by the
holders of the voting stock, excluding voting stock held by an interested
stockholder. Article XVIII is intended to prevent "greenmail," which is a term
used to describe the accumulation of a block of a corporation's stock by a
speculator and the subsequent attempt by the speculator to coerce the
corporation into repurchasing its shares, typically at a substantial premium
over the market price.
Article VII requires that our board of directors consist of nine to
sixteen members divided into three classes of as nearly equal size as possible.
The terms of the directors are staggered so that the terms of approximately
one-third of the directors expire at each annual election of directors. The
provisions of Article VII may not be amended without (1) the affirmative vote of
80% of all outstanding voting stock or (2) the affirmative vote of a majority of
outstanding voting stock and the affirmative vote of at least 75% of the board
of directors.
The provisions of our certificate of incorporation described in this
section may be deemed to have anti-takeover effects. These provisions may
discourage or make more difficult an attempt by a stockholder or other entity to
acquire control of ConAgra Foods. These provisions may also make more difficult
an attempt by a stockholder or other entity to remove management. Furthermore,
the provision for a classified board of directors may make more difficult
removal of directors, even when removal is considered desirable.
Rights Dividend
On July 12, 1996, our board of directors declared a dividend of one
preferred share purchase right, referred to in this document as a right, for
each outstanding share of our common stock for stockholders of record on July
24, 1996. The one right for each outstanding share of our common stock was
adjusted to one-half right for each share effective October 1, 1997 following a
two-for-one stock split of our common stock.
The rights will expire on July 12, 2006. The rights are represented by
the common stock certificates and are not exercisable or transferable apart from
the common stock certificates except upon the occurrence of events described
below. Pursuant to the rights agreement, the exercise price and the number of
shares of preferred stock or other securities or other property issuable are
subject to adjustment in the event of stock splits, stock dividends and other
distributions and customary antidilution provisions. All shares of our common
stock issued between July 24, 1996 and the earlier of (1) July 12, 2006, (2) the
date on which the rights are redeemed and (3) a date generally ten days after a
share acquisition date, as defined below, will receive rights.
Each right entitles the registered holder to purchase from ConAgra
Foods one one-thousandth of a share of Series A Junior Participating Class E
preferred stock, without par value, of ConAgra Foods at a price of $200 per one
one-thousandth of a share of preferred stock, subject to adjustment. The
description and terms of the rights are set forth in a rights agreement dated as
of July 12, 1996, as the same may be amended from time to time, between ConAgra
Foods and ChaseMellon Shareholder Services, L.L.C., as rights agent.
The rights become exercisable on the earlier to occur of (1) ten days
following announcement that a person or group, referred to in this document as
an acquiring person, has acquired 15% or more of the common stock, the date of
the announcement being called the "share acquisition date", or (2) ten business
days following the commencement of, or announcement of an intention to make, a
tender offer for 15% or more of the common stock.
Shares of preferred stock purchasable upon exercise of the rights will
not be redeemable. Each share of preferred stock will be entitled, when, as and
if declared, to a minimum preferential quarterly dividend payment of $1.00 per
share but will be entitled to an aggregate dividend of 2000 times the dividend
declared per share of the common stock. In the event of the liquidation,
dissolution or winding up of ConAgra Foods, the holders of the preferred stock
will be entitled to a minimum preferential payment of $100 per share, plus any
accrued but unpaid dividends, but will be entitled to an aggregate payment of
2000 times the payment made per share of the common stock. Each share of
preferred stock will have 2000 votes, voting together with the common stock. In
the event of any merger, consolidation or other transaction in which outstanding
shares of our common stock are converted or exchanged, each share of preferred
stock will be entitled to receive 2000 times the amount received per share of
the common stock.
Because of the nature of the preferred stock's dividend, liquidation,
voting and other rights, the value of the one one-thousandth interest in a share
of preferred stock purchasable upon exercise of each right should approximate
the value of two shares of our common stock.
In the event that any person or group becomes an acquiring person, the
rights agreement provides that each holder of a right, other than an acquiring
person, will subsequently have the right to receive, upon exercise, shares of
our common stock having a value of twice the exercise price of the right.
In the event that, after a person or group has become an acquiring
person, (1) ConAgra Foods engages in a merger or other business combination
transaction in which ConAgra Foods is not the surviving company or (2) 50% or
more of ConAgra Foods' assets or earning power is sold, the rights agreement
provides that each holder of a right shall subsequently have the right to
receive, upon exercise, shares of common stock of the acquiring company having a
value of twice the exercise price of the right.
At any time after any person or group becomes an acquiring person and
prior to the earlier of one of the events described in the previous paragraph or
the acquisition by the acquiring person of 50% or more of the outstanding shares
of our common stock, our board of directors may exchange the rights, other than
rights owned by the acquiring person which will have become void, in whole or in
part, for shares of the common stock or preferred stock, or a series of ConAgra
Foods' preferred stock having equivalent rights, preferences and privileges.
At any time on or prior to the share acquisition date, ConAgra Foods
may redeem the rights at a redemption price of $.01 per right.
PLAN OF DISTRIBUTION
We may sell the securities in and outside the United States:
o directly to purchasers;
o through agents;
o through underwriters; and
o through dealers.
We may determine the price or other terms of the securities offered
under this prospectus by use of an electronic auction. We will describe in the
prospectus supplement relating to such offering how any auction will determine
the price or any other terms, how potential investors may participate in the
auction and the nature of the underwriters' obligations.
We may directly solicit offers to purchase securities, or we may
designate agents to solicit offers. We will, in the prospectus supplement
relating to such offering, name any agent that could be viewed as an underwriter
under the Securities Act of 1933 and describe any commissions we must pay. Any
agent will be acting on a best efforts basis for the period of its appointment
or, if indicated in the applicable prospectus supplement, on a firm commitment
basis. Agents, dealers and underwriters may be customers of, engage in
transactions with, or perform services for us in the ordinary course of
business.
If any underwriters are utilized in the sale of the securities in
respect of which this prospectus is delivered, we will enter into an
underwriting agreement with them at the time of sale to them and we will set
forth in the prospectus supplement relating to the offering their names and the
terms of our agreement with them.
If a dealer is utilized in the sale of the securities in respect of
which the prospectus is delivered, we will sell the securities to the dealer, as
principal. The dealer may then resell the securities to the public at varying
prices to be determined by the dealer at the time of resale.
Remarketing firms, agents, underwriters and dealers may be entitled
under agreements which they may enter into with us to indemnification by us
against some types of civil liabilities, including liabilities under the
Securities Act of 1933, and may be customers of, engage in transactions with or
perform services for us in the ordinary course of business.
If we so indicate in the prospectus supplement, we will authorize
agents, underwriters or dealers to solicit offers by the types of purchasers
specified in the prospectus supplement to purchase offered securities from us at
the public offering price set forth in the prospectus supplement pursuant to
delayed delivery contracts providing for payment and delivery on a specified
date in the future. These contracts will be subject to only those conditions set
forth in the prospectus supplement, and the prospectus supplement will set forth
the commission payable for solicitation of the offers.
Any underwriter, agent or dealer utilized in the initial offering of
securities will not confirm sales to accounts over which it exercises
discretionary authority without the prior specific written approval of its
customer.
EXPERTS
The financial statements and the related financial statements schedule
of ConAgra Foods, Inc. as of May 26, 2002 and May 27, 2001, and for each of the
three years in the period ended May 26, 2002, incorporated in this prospectus by
reference from the company's Annual Report on Form 10-K for the year ended May
26, 2002 have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their reports, which are incorporated herein by reference (which
reports express an unqualified opinion and include an explanatory paragraph
relating to change in methods of accounting for derivative instruments and other
hedging activities in 2002 and revenue recognition relating to the shipping
terms for certain of its product sales, retailer sales incentives, and consumer
sales incentives in 2001), and have been so incorporated in reliance upon the
reports of such firm given upon their authority as experts in accounting and
auditing.
LEGAL MATTERS
The validity of the securities offered hereby has been passed upon on
our behalf by McGrath North Mullin & Kratz, PC LLO, Omaha, Nebraska 68102.
WHERE YOU CAN FIND MORE INFORMATION
We have filed this prospectus as part of a registration statement on
Form S-3 with the SEC. The registration statement contains exhibits and other
information that are not contained in this prospectus. Our descriptions in this
prospectus of the provisions of documents filed as an exhibit to the
registration statement or otherwise filed with the SEC are only summaries of the
documents' material terms. If you want a complete description of the contents of
the documents, you should obtain the documents yourself by following the
procedures described below.
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Our SEC filings, including the registration
statement that contains this prospectus, are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file with the SEC at its public reference facilities at 450
Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference
facilities. Our SEC filings are also available at the office of the New York
Stock Exchange. For further information on obtaining copies of our public
filings at the New York Stock Exchange, you should call (212) 656-5060.
We "incorporate by reference" into this prospectus the information we
file with the SEC, which means that we can disclose important information to you
by referring you directly to those documents. The information incorporated by
reference is considered part of this prospectus and information that we file
subsequently with the SEC will automatically update and supersede information
contained in this prospectus and the accompanying prospectus supplement. We
incorporate by reference the documents listed below and any filings we make with
the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act
of 1934 after the initial filing of the Registration Statement that contains
this prospectus and prior to the time that we sell all the securities offered by
this prospectus:
o Annual Report on Form 10-K for the year ended May 26, 2002;
o Quarterly Report on Form 10-Q for the quarter ended August 25,
2002;
o Current Reports on Form 8-K dated August 23, 2002, September 3,
2002, and September 19, 2002; and
o The description of ConAgra Food's common stock contained in
registration statements on Form 8-A filed under the Exchange Act,
including any amendments or reports filed for the purpose of
updating such description.
You may request a copy of these filings (other than an exhibit to a
filing unless that exhibit is specifically incorporated by reference into that
filing) at no cost, by writing to or telephoning us at the following address:
Investor Relations Department
ConAgra Foods, Inc.
One ConAgra Drive
Omaha, Nebraska 68102-5001
(402) 595-4157
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following sets forth estimated expenses to be incurred by ConAgra
Foods in connection with the offering described in this registration statement:
Item Amount
Registration Fee $ 368,000
Printing Expenses* $ 35,000
Accounting Fees and Expenses* $ 10,000
Legal Fees and Expenses* $ 25,000
Trustee Fees* $ 6,000
Rating Agency $ 250,000
Miscellaneous Expenses* $ 6,000
TOTAL $ 700,000*
-----------------
*Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to Article V of the Certificate of Incorporation of ConAgra
Foods, ConAgra Foods shall, to the extent required, and may, to the extent
permitted, by Section 102 and Section 145 of the General Corporation Law of the
State of Delaware, as amended from time to time, indemnify and reimburse all
persons whom it may indemnity and reimburse pursuant thereto. No director shall
be liable to ConAgra Foods or its stockholders for monetary damages for breach
of fiduciary duty as a director. A director shall continue to be liable for (1)
any breach of a director's duty of loyalty to ConAgra Foods or its stockholders;
(2) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law; (3) paying a dividend or approving a stock
repurchase which would violate Section 174 of the General Corporation Law of the
State of Delaware; or (4) any transaction from which the director derived an
improper personal benefit.
The by-laws of ConAgra Foods provide for indemnification of ConAgra
Foods officers and directors against all expenses, liabilities or losses
reasonably incurred or suffered by the officer or director, including liability
arising under the Securities Act of 1933, to the extent legally permissible
under Section 145 of the General Corporation Law of the State of Delaware where
any such person was, is, or is threatened to be made a party to or is involved
in any action, suit or proceeding whether civil, criminal, administrative or
investigative, by reason of the fact such person was serving ConAgra Foods in
such capacity. Generally, under Delaware law, indemnification will only be
available where an officer or director can establish that such person acted in
good faith and in a manner they reasonably believed to be in or not opposed to
the best interests of ConAgra Foods.
ConAgra Foods also maintains a director and officer insurance policy
which insures the officers and directors of ConAgra Foods and its subsidiaries
against damages, judgments, settlements and costs incurred by reason of certain
wrongful acts committed by such persons in their capacities as officers and
directors.
ITEM 16. LIST OF EXHIBITS.
Exhibit
Number Description
1.1 Form of Underwriting Agreement, incorporated by reference to Exhibit 1.1 of
ConAgra Foods' Registration Statement on Form S-3 (33-55626).
4.1 ConAgra Foods' Certificate of Incorporation, as amended, incorporated by
reference to Exhibit 3.1 of ConAgra Foods' Quarterly Report on Form 10-Q
for the quarter ended August 27, 2000.
4.2 ConAgra Foods' Bylaws, as amended, incorporated by reference to Exhibit 3.1
of ConAgra Foods' Quarterly Report on Form 10-Q for the quarter ended
February 24, 2002.
4.3 Rights Agreement dated July 12, 1996, Certificate of Adjustment dated
October 1, 1997 and Amendment dated July 10, 1998, incorporated by
reference to Exhibit 4.1 of ConAgra Foods' Annual Report on Form 10-K for
the fiscal year ended May 27, 2001.
4.4 Indenture dated as of October 8, 1990, between ConAgra Foods and JPMorgan
Chase Bank, successor to The Chase Manhattan Bank, as trustee, incorporated
by reference to Exhibit 4.1 of ConAgra Foods' Registration Statement on
Form S-3 (33-36967).
4.5 Indenture dated as of March 10, 1994, between ConAgra Foods and U.S. Bank
National Association, successor to First Trust National Association, as
trustee, and supplements thereto, incorporated by reference to Exhibit 4.7
of ConAgra Foods' Registration Statement on Form S-3 (333-49296).
4.6 Form of Supplemental Indenture, incorporated by reference to Exhibit 4.14
of ConAgra Foods' Registration Statement on Form S-3 (33-56973).
4.7 Form of Notes, incorporated by reference to Exhibit 4.2 of ConAgra Foods'
Registration Statement on Form S-3 (33-55626).
4.8 Form of Common Stock Certificate, incorporated by reference to Exhibit 4.6
of ConAgra Foods' Registration Statement on Form S-8 (333-46960).
5.1 Opinion of McGrath North Mullin & Kratz, PC LLO.
12.1 Statement Regarding Computation of Ratio of Earnings to Fixed Charges,
incorporated by reference to Exhibit 12 of ConAgra Foods' Annual Report on
Form 10-K for the fiscal year ended May 26, 2002 and Quarterly Report on
Form 10-Q for the quarter ended August 25, 2002.
12.2 Statement Regarding Computation of Pro Forma Ratio of Earnings to Fixed
Charges.
23.1 Consent of McGrath North Mullin & Kratz, PC LLO (included in Exhibit 5.1).
23.2 Consent of Deloitte & Touche LLP.
24 Powers of Attorney.
25.1 Form T-1 Statement of Eligibility for JPMorgan Chase Bank, as trustee.
25.2 Form T-1 Statement of Eligibility for U.S. Bank National Association, as
trustee.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(1) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(2) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement; and
(3) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
Provided, however, that paragraphs (a)(1) and (a)(2) of this section do not
apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(d) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual
report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be
a new registration statement relating to the securities
offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
(e) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or
persons controlling the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been informed that
in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is therefore unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant, ConAgra Foods, Inc., a Delaware corporation, certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Omaha,
State of Nebraska, on the 13th of December, 2002.
CONAGRA FOODS, INC.
By: /s/ Bruce C. Rohde
-----------------------------
Chairman, Chief Executive Officer
and President
Pursuant to the requirements of the Securities Act of 1933 this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 13th day of December, 2002.
Signature Title
/s/ Bruce C. Rohde Chairman, Chief Executive Officer and President
-----------------------
Bruce C. Rohde
/s/ James P. O'Donnell Executive Vice President, Chief Financial Officer and
----------------------- Corporate Secretary
James P. O'Donnell
/s/ Dwight J. Goslee Executive Vice President, Operations Control and
----------------------- Development
Dwight J. Goslee
/s/ Jay D. Bolding Senior Vice President and Controller
-----------------------
Jay D. Bolding
David H. Batchelder* Director
Mogens Bay* Director
Howard G. Buffett* Director
John T. Chain, Jr.* Director
Alice B. Hayes* Director
W.G. Jurgensen* Director
Robert A. Krane* Director
Mark Rauenhorst* Director
Carl E. Reichardt* Director
Ronald W. Roskens* Director
Kenneth E. Stinson* Director
*Bruce C. Rohde, by signing his name hereto, signs this Registration Statement
on behalf of each of the persons indicated. A Power-of-Attorney authorizing
Bruce C. Rohde to sign this Registration Statement on behalf of each of the
indicated Directors of ConAgra Foods, Inc. is filed hereto as Exhibit 24.
By: /s/ Bruce C. Rohde
--------------------------
Bruce C. Rohde
Attorney-In-Fact
INDEX OF EXHIBITS
Exhibit
Number Description PAGE
1.1 Form of Underwriting Agreement, incorporated by reference to Exhibit 1.1 of
ConAgra Foods' Registration Statement on Form S-3 (33-55626).
4.1 ConAgra Foods' Certificate of Incorporation, as amended, incorporated by
reference to Exhibit 3.1 of ConAgra Foods' Quarterly Report on Form 10-Q
for the quarter ended August 27, 2000.
4.2 ConAgra Foods' Bylaws, as amended, incorporated by reference to Exhibit 3.1
of ConAgra Foods' Quarterly Report on Form 10-Q for the quarter ended
February 24, 2002.
4.3 Rights Agreement dated July 12, 1996, Certificate of Adjustment dated
October 1, 1997 and Amendment dated July 10, 1998, incorporated by
reference to Exhibit 4.1 of ConAgra Foods' Annual Report on Form 10-K for
the fiscal year ended May 27, 2001.
4.4 Indenture dated as of October 8, 1990, between ConAgra Foods and JPMorgan
Chase Bank, successor to The Chase Manhattan Bank, as trustee, incorporated
by reference to Exhibit 4.1 of ConAgra Foods' Registration Statement on
Form S-3 (33-36967).
4.5 Indenture dated as of March 10, 1994, between ConAgra Foods and U.S. Bank
National Association, successor to First Trust National Association, as
trustee, and supplements thereto, incorporated by reference to Exhibit 4.7
of ConAgra Foods' Registration Statement on Form S-3 (333-49296).
4.6 Form of Supplemental Indenture, incorporated by reference to Exhibit 4.14
of ConAgra Foods' Registration Statement on Form S-3 (33-56973).
4.7 Form of Notes, incorporated by reference to Exhibit 4.2 of ConAgra Foods'
Registration Statement on Form S-3 (33-55626).
4.8 Form of Common Stock Certificate, incorporated by reference to Exhibit 4.6
of ConAgra Foods' Registration Statement on Form S-8 (333-46960).
5.1 Opinion of McGrath North Mullin & Kratz, PC LLO........................
12.1 Statement Regarding Computation of Ratio of Earnings to Fixed Charges,
incorporated by reference to Exhibit 12 of ConAgra Foods' Annual Report on
Form 10-K for the fiscal year ended May 26, 2002 and Quarterly Report on
Form 10-Q for the quarter ended August 25, 2002.
12.2 Statement Regarding Computation of Pro Forma Ratio of Earnings to Fixed
Charges..............................................................
23.1 Consent of McGrath North Mullin & Kratz, PC LLO (included in Exhibit 5.1).
23.2 Consent of Deloitte & Touche LLP.....................................
24 Powers of Attorney.....................................................
25.1 Form T-1 Statement of Eligibility for JPMorgan Chase Bank, as
trustee..............................................................
25.2 Form T-1 Statement of Eligibility for U.S. Bank National Association, as
trustee..............................................................