CHANGE OF CONTROL AGREEMENT
This CHANGE OF CONTROL AGREEMENT (“Agreement”) is made as of the ____ day of ___________, _____ between Conagra Brands, Inc., a Delaware Corporation (the “Company”), and ____________ (the “Employee”).
WHEREAS, as is the case with most, if not all, publicly traded businesses, it is expected that the Company from time to time may consider or need to consider the possibility of an acquisition by another company or other Change of Control of the ownership of the Company. The Board of Directors of the Company (the “Board”) recognizes that such considerations can be a distraction to Employee and can cause the Employee to consider alternative employment opportunities or to be influenced by the impact of a possible Change of Control of the ownership of the Company on Employee’s personal circumstances in evaluating such opportunities. The Board has determined that it is in the best interests of the Company and its shareholders to assure that the Company will have the continued dedication and objectivity of Employee, notwithstanding the possibility, threat or occurrence of a Change of Control of the Company.
WHEREAS, the Board believes that it is in the best interests of the Company and its shareholders to provide Employee with an incentive to continue Employee’s employment and to motivate Employee to maximize the value of the Company upon a Change of Control for the benefit of its shareholders.
WHEREAS, the Board believes that it is important to provide Employee with certain benefits upon Employee’s termination of employment in certain instances upon or following a Change of Control that provide Employee with enhanced financial security and incentive and encouragement to remain with the Company notwithstanding the possibility of a Change of Control.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth and intending to be legally bound hereby, the parties hereto agree as follows:
1.Definitions. For all purposes of this Agreement, the following terms shall have the meanings specified in this Section unless the context clearly otherwise requires:
(a)“Affiliate” and “Associate” shall have the respective meanings ascribed to such terms in Rule 12b-2 of Regulation 12B under the Exchange Act.
| (b) | “Change of Control” shall mean: |
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(c)“Cause” shall have the same meaning as set forth in the Employee’s employment agreement with the Company or, if the Employee is not a party to an employment agreement, such term shall mean: (i) the willful and continued failure by Employee to substantially perform Employee’s duties with the Company (other than any such failure resulting from termination by the Employee for Good Reason, as defined below) after a demand for substantial performance is delivered to the Employee that specifically identifies the manner in which the Company believes that the Employee has not substantially performed the Employee’s duties, and the Employee has failed to resume substantial performance of the Employee’s duties on a continuous basis within five days of receiving such demand; (ii) breach of fiduciary duties or failure to follow the established, reasonable, and material policies and standards applicable to senior executive officers of the Company, including but not limited to the Code of Ethics for Senior Corporate Officers, Code of Conduct, Clawback Policy, Stock Ownership Guidelines, and Insider Trading Policy; (iii) the willful engaging by the Employee in conduct that is demonstrably and materially injurious to the Company, monetarily or otherwise; or (iii) conviction in a court of law of, or pleading guilty or nolo contendere to, any crime that constitutes a felony offense or a lesser offense that substantially impairs Employee’s ability to perform Employee’s duties to the Company.
(d)“Code” shall mean the Internal Revenue Code of 1986, as amended.
(e)“Continuation Period” means the two (2) year period beginning on the Employee’s Termination Date.
| (f) | “Exchange Act” means the Securities Exchange Act of 1934, as amended. |
(g)“Good Reason Termination” shall mean a termination of employment initiated by the Employee upon one or more of the following occurrences, without Employee’s consent:
| (i) | failure by the Company to comply with the material terms of any employment agreement between Employee and the Company; |
| (ii) | any significant reduction of the Employee’s title, authority, duties, or responsibilities held by the Employee immediately prior to the Change of Control; |
| (iii) | any removal of the Employee from an officer position which the Employee holds with the Company or held by the Employee immediately prior to the Change of Control, except in connection with promotion to higher office; |
| (iv) | requiring the Employee to become based at any office or location more than the minimum number of miles required by the Code for the Employee to claim |
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| a moving expense deduction, from the office or location at which the Employee was based immediately prior to such Change of Control, except for travel reasonably required in the performance of the Employee's responsibilities; or |
| (v) | any material reduction in the Employee’s annual base salary as in effect from time to time (other than a reduction that is concurrent with and no greater as a proportion of base salary than a reduction in base salaries applicable to other senior executive officers). |
The foregoing notwithstanding, no termination will be deemed to be for Good Reason unless (A) Employee has not committed any action that could be considered Cause for termination of the Employee’s employment by the Company, whether or not known to the Company, (B) Employee provides the Company with written notice setting forth the facts or circumstances that constitute Good Reason within 90 days after the initial existence of such facts or circumstances, (C) the Company has failed to cure such facts or circumstances within 30 days of its receipt of such written notice, and (D) Employee actually terminates Employee’s employment within 30 days of the Company’s failure to cure such facts or circumstances.
(h)“Related Company” shall mean (i) any corporation that is a member of a controlled group of corporations (as defined in Code Section 414(b)) that includes the Company; and (ii) any trade or business (whether or not incorporated) that is under common control (as defined in Code Section 414(c)) with the Company. For purposes of applying Code Sections 414(b) and (c), 25% is substituted for the 80% ownership level.
(i)“Separation from Service” shall mean the date that Employee separates from service within the meaning of Code Section 409A. Generally, Employee separates from service if Employee dies, retires, or otherwise has a Separation from Service with the Company, determined in accordance with the following:
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| employment, a twenty nine (29) month period of absence shall be substituted for such six (6) month period. |
(j)“Subsidiary” shall mean any corporation in which the Company, directly or indirectly, owns at least a fifty percent (50%) interest or an unincorporated entity of which the Company, directly or indirectly, owns at least fifty percent (50%) of the profits or capital interests.
(k)“Termination Date” shall mean the effective date of the Employee’s Separation from Service, as specified in the Notice of Termination.
2.Notice of Termination. Any Separation from Service upon or following a Change of Control shall be communicated by a Notice of Termination to Employee (or from Employee to the Company with respect to a Good Reason Termination) given in accordance with Section 16 hereof. For purposes of this Agreement, a “Notice of Termination” means a written notice which (i) indicates the specific provision in this Agreement relied upon, (ii) briefly summarizes the facts
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and circumstances deemed to provide a basis for Employee’s Separation from Service under the provision so indicated, and (iii) if the Termination Date is other than the date of receipt of such notice, specifies the Termination Date (which date shall not be more than fifteen (15) days after the giving of such notice).
| 3. | Severance Compensation upon Separation from Service. |
(a)Subject to the provisions of Sections 9 and 10 hereof and further subject to Employee executing and not revoking a release of claims substantially in the form of the release agreement being used by the Company immediately prior to a Change of Control and will not include any additional post-employment restrictions, such as non-competition and non-solicitation obligations, that are not obligations of Employee immediately prior to a Change of Control and the period to revoke such release expiring within sixty (60) days following Employee’s Separation from Service, in the event of Employee’s involuntary Separation from Service initiated by the Company or a Subsidiary or Affiliate for any reason other than Cause or in the event of a Good Reason Termination, in either event upon or within three (3) years after a Change of Control, Employee shall receive the following amounts in lieu of any severance compensation and benefits under the Company’s severance plan or any other agreement between Employee and the Company:
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| premium cost of replacement coverage for the portion of the Continuation Period not covered by COBRA. The COBRA Payment will be made on the first day on which severance compensation is paid under this Agreement; provided that if the Company determines that payment in a lump sum would cause taxation under Code Section 409A, the Company shall pay a pro rata portion of the COBRA Payment for each calendar year (or portion thereof) that falls within the Continuation Period on the first business day during each such calendar year (or portion thereof) on which payment can be made without causing taxation under Code Section 409A. |
(b)Except as otherwise set forth in Sections 9 and 10, (1) the amounts described in subsections 3(a)(i) and (ii) above shall be paid, and (2) the supplemental credit in subsection 3(a)(iii) shall be allocated (with payment governed by the terms of CRISP), on the 61st day after the Termination Date.
4.Other Payments. Upon any Separation from Service entitling the Employee to payments under this Agreement, the Employee shall receive all accrued but unpaid salary and all benefits (other than severance benefits) accrued and payable under any plans, policies and programs of the Company and its Subsidiaries or Affiliates.
| 5. | Delay; Enforcement. |
(a)Subject to any applicable deferral election or any delay otherwise permitted hereunder, if the Company shall fail or refuse to pay any amounts due the Employee under Section 3 or 10 on the applicable due date, the Company shall pay interest at the rate described below on the unpaid payments from the applicable due date to the date on which such amounts are paid. Interest shall be credited at an annual rate equal to the rate announced by Wells Fargo & Company (or its successor) as its “prime rate” as of the Employee’s Termination Date, plus one percent (1%), compounded annually.
(b)The Employee shall not be required to incur any expenses associated with the enforcement of the Employee’s rights under this Agreement by arbitration, litigation or other legal action, because the cost and expense thereof would substantially detract from the benefits intended to be extended to the Employee hereunder. Accordingly, the Company shall pay the Employee on demand the amount necessary to reimburse the Employee in full for all reasonable expenses (including all attorneys’ fees and legal expenses) incurred by the Employee in enforcing any of the
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obligations of the Company under this Agreement. The Employee shall notify the Company of the expenses for which the Employee demands reimbursement within sixty (60) days after the Employee receives an invoice for such expenses, and the Company shall pay the reimbursement amount within fifteen (15) days after receipt of such notice, subject to Section 11.
6.No Mitigation. The Employee shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for herein be reduced by any compensation earned by other employment or otherwise.
7.Nonexclusivity of Rights. Nothing in this Agreement shall prevent or limit the Employee’s continuing or future participation in or rights under any benefit, bonus, incentive or other plan or program provided by the Company, or any of its Subsidiaries or Affiliates, and for which the Employee may qualify, except as provided in this Agreement.
8.No Set Off. The Company’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances, including, without limitation, any set-off, counterclaim, recoupment, defense or other right which the Company may have against the Employee or others.
| 9. | Taxation. |
(a)Notwithstanding anything contained in this Agreement to the contrary, to the extent necessary to comply with Section 409A, if the Employee is a “specified employee” (as determined under Section 409A) as of the date of Separation from Service (other than due to the Employee’s death), then any payment, benefit, or entitlement provided for in this Agreement that constitutes “deferred compensation” and is payable by reference to the date of the Employee’s Separation from Service during the first six months following the date of Separation from Service (the “Postponed Benefit”) shall be paid or provided to the Employee, without interest, in lump sum cash payment to be made on the earlier of (a) the Employee’s death, or (b) the first business day (or within 30 days after such first business day) of the seventh calendar month immediately following the month in which the date of Separation from Service occurs (the “Postponement Period”); and (ii) unless doing so would violate Code Section 409A(b), an amount equal to the Postponed Benefit shall be deposited, as of the date the Postponed Benefit would have been paid but for this Section, in a trust in the form of the model grantor trust contained in Internal Revenue Service Revenue Procedure 92-64, which trust is incorporated by reference. If Code Section 409A(b) initially prevents the funding described in the prior sentence, but it is possible to carry out such funding without violating Code Section 409A(b) at a later date that precedes when payment is made (“409A(b) Date”), such funding shall occur at the earliest possible 409A(b) Date. If the Employee dies during the Postponement Period prior to the payment of benefits, the amounts withheld on account of Code Section 409A, shall be paid to the personal representative of the Employee’s estate within sixty (60) days after the date of the Employee’s death.
(b)The Employee and the Company intend that all compensation and benefits payable or provided to the Employee under this Agreement shall be exempt from or otherwise shall comply with the provisions of Section 409A so as not to subject the Employee to additional tax, interest, or penalties which may be imposed thereunder. Both parties acknowledge that Section 409A is ambiguous in certain respects. The parties further acknowledge that this Agreement shall be
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interpreted and administered to maximize the exemptions from Code Section 409A and, to the extent this Agreement provides for deferred compensation subject to Code Section 409A, to comply with Code Section 409A and to avoid the imposition of additional taxes upon the Employee under Code Section 409A. Company agrees that it will attempt in good faith not to take any action, or refrain from taking any action, that would result in the imposition of tax, interest, and/or penalties upon the Employee under Section 409A; however, the Company shall not be responsible for any consequences of a failure to comply with Section 409A. Any installment of a payment or benefit that constitutes nonqualified deferred compensation within the meaning of Section 409A shall be deemed to be a separate payment for purposes of Section 409A. In no event may the Employee, directly or indirectly, designate the calendar year of any payment under this Agreement. Accordingly, to comply with Code Section 409A, if Employee is entitled to any payment or benefit under this Agreement (i) following a Change in Control that does not qualify under Code Section 409A as a “change in ownership,” “change in effective control” or “change in ownership of a substantial portion of the assets,” in each case with respect to the Company, or (ii) due to a Separation from Service that occurs more than two (2) years after the date of the Change in Control, and if Employee is a party to another agreement, offer letter or other arrangement providing for severance benefits in connection with a Separation from Service other than in connection with a Change in Control, payments under this Agreement up to the total payments required under such other agreement shall be paid in the same manner and at the same time as payments would be paid under such other agreement, and any additional amounts shall be paid as provided in Section 3(b) above.
(c)All payments under this Agreement shall be subject to all requirements of the law with regard to tax withholding and reporting and filing requirements, and the Company shall use its best efforts to satisfy promptly all such requirements.
| 10. | Limitation on Payment. |
(a)Except as otherwise provided in subsection (b) below, in the event that it shall be determined that any payment or distribution in the nature of compensation (within the meaning of Code Section 280G(b)(2)) 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 constitute an “excess parachute payment” within the meaning of Code Section 280G, the aggregate present value of the Payments under the Agreement shall be reduced (but not below zero) to the Safe Harbor Amount (as defined below). Any required reduction in the Payments pursuant to the foregoing shall be done only to the extent such reduction of the Payment can contribute to avoiding the Excise Tax and Expenses (as defined below), and it shall be accomplished first by reducing the lump sum severance payment payable pursuant to Section 3(a)(i) of the Agreement, and then (to the extent reduction of the Section 3(a)(i) payment is not adequate) by reducing the additional nonqualified CRISP credit provided pursuant to Section 3(a)(iii). The “Safe Harbor Amount” is the maximum dollar amount of payments in the nature of compensation that are contingent on a Change of Control (as described in Code Section 280G) and that may be paid or distributed to the Employee without imposition of the Excise Tax and Expenses. The term “Excise Tax and Expenses” means the excise tax imposed under Code Section 4999, together with any interest or penalties imposed with respect to such excise tax.
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retained by the Employee after considering all income, employment, excise and other taxes (including any Excise Tax and Expenses) exceeds the net after-tax amount of the Safe Harbor Amount that would be retained by the Employee after considering all income, employment, excise and other taxes.
(c)All determinations to be made under this Section 10 shall be made by an independent registered public accounting firm selected by the Company immediately prior to the Change of Control (the “Accounting Firm”), which shall provide its determinations and any supporting calculations both to the Company and the Employee within ten (10) days of the Change of Control. Any such determination by the Accounting Firm shall be binding upon the Company and the Employee.
(d)All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section shall be borne solely by the Company. The Company agrees to indemnify and hold harmless the Accounting Firm of and from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.
11.Reimbursements. Any reimbursements or in-kind benefits to be provided pursuant to this Agreement (including but not limited to Sections 3(a)(iv) and 5(b)) that are taxable to Employee shall be subject to the following restrictions: (a) each reimbursement must be paid no later than the last day of the Employee’s tax year following the Employee’s tax year during which the expense was incurred or in-kind benefit was received, as the case may be; (b) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a tax year of the Employee may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other tax year of the Employee; (c) the period during which any expenses that are eligible for reimbursement may be paid or in-kind benefit may be provided is ten years after termination of this Agreement or, in the case of reimbursements related to expenses, the expiration of all applicable statutes of limitations for the collection of such expenses; and (d) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.
12.Term. This Agreement shall commence on the date hereof and, unless there is a Change of Control, shall continue until the earliest of (a) the Employee’s termination of employment as a full-time employee of the Company, (b) the date the Employee enters into a written separation agreement with the Company; or (c) the date when this Agreement is terminated by the Company in accordance with the next sentence. If a Change of Control has not occurred, then the Company shall have the right at any time to terminate this Agreement by giving the Employee six (6) months prior written notice of termination of this Agreement. If a Change of Control occurs at any time prior to the termination of this Agreement pursuant to the preceding, this Agreement shall terminate on the third anniversary of such Change of Control.
13.Confidentiality. The Employee acknowledges that during the Employee’s employment with the Company or any of its Affiliates, the Employee will acquire, be exposed to and have access to, non-public material, data and information of the Company and its Affiliates and/or their customers or clients that is confidential, proprietary, and/or a trade secret (“Confidential Information”). At all times, both during and after the Term, the Employee shall keep and retain in confidence and shall not disclose, except as required and authorized in the course
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of the Employee’s employment with the Company or any of its Affiliates, to any person, firm or corporation, or use for his or her own purposes, any Confidential Information. For purposes of this Agreement, such Confidential Information shall include, but shall not be limited to: sales methods, information concerning principals or customers, advertising methods, financial affairs or methods of procurement, marketing and business plans, strategies (including risk strategies), projections, business opportunities, inventions, designs, drawings, research and development plans, client lists, sales and cost information and financial results and performance. Notwithstanding the foregoing, “Confidential Information” shall not include any information known generally to the public (other than as a result of unauthorized disclosure by the Employee or by the Company or its Affiliates). The Employee acknowledges that the obligations pertaining to the confidentiality and non-disclosure of Confidential Information shall remain in effect for a period of five (5) years after the Employee’s Separation from Service, or until the Company or its Affiliates has released any such information into the public domain, in which case the Employee’s obligation hereunder shall cease with respect only to such information so released into the public domain. The Employee’s obligation under this Section 13 shall survive any Separation from Service. If the Employee receives a subpoena or other judicial process requiring that he or she produce, provide or testify about Confidential Information, the Employee shall notify the Company and cooperate fully with the Company in resisting disclosure of the Confidential Information. The Employee acknowledges that the Company has the right either in the name of the Employee or in its own name to oppose or move to quash any subpoena or other legal process directed to the Employee regarding Confidential Information.
14.Incentive Payments Upon Change of Control. Upon a Change of Control that qualifies under Code Section 409A as a “change in ownership,” “change in effective control” or “change in ownership of a substantial portion of the assets,” in each case with respect to the Company, the Company may, at the Board’s, or the Human Resources Committee’s, as the case may be, sole and absolute discretion, pay the Employee all or a portion of the Employee’s unpaid award(s) under the Company’s Annual Incentive Plan and/or any other incentive program for the Company fiscal year in which the Change of Control occurs (to the extent that such compensation is not deferred compensation subject to Code Section 409A and such payment is permitted under the applicable plans).
15.Successor Company. The Company shall require any successor or successors (whether direct or indirect, by purchase, merger or otherwise) to all or substantially all of the business or assets of the Company, by agreement in form and substance satisfactory to the Employee, to acknowledge expressly that this Agreement is binding upon and enforceable against the Company in accordance with the terms hereof, and to become jointly and severally obligated with the Company to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession or successions had taken place. Failure of the Company to notify the Employee in writing as to such successorship, to provide the Employee the opportunity to review and agree to the successor’s assumption of this Agreement or to obtain such agreement prior to the effectiveness of any such succession shall be a breach of this Agreement. As used in this Agreement, the Company shall mean the Company as defined above and any such successor or successors to its business or assets, jointly and severally.
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express courier service, as follows:
If to the Company, to:
Conagra Brands, Inc.
222 W. Merchandise Mart Plaza, Suite 1300 Chicago, IL 60654
Attention: Corporate Secretary
If to the Employee, to the most recent address provided by the Employee to the Company or a Subsidiary or Affiliate for payroll purposes, or to such other address as the Company or the Employee, as the case may be, shall designate by notice to the other party hereto in the manner specified in this Section; provided, however, that if no such notice is given by the Company following a Change of Control, notice at the last address of the Company or any successor pursuant to Section 15 shall be deemed sufficient for the purposes hereof. Any such notice shall be deemed delivered and effective when received in the case of personal delivery, five (5) days after deposit, postage prepaid, with the U.S. Postal Service in the case of registered or certified mail, or on the next business day in the case of overnight express courier service.
17.Contents of Agreement; Amendment. This Agreement supersedes all prior agreements with respect to the subject matter hereof and sets forth the entire understanding between the parties hereto with respect to the subject matter hereof. This Agreement cannot be amended except pursuant to approval by the Human Resources Committee of the Company’s Board of Directors and a written amendment executed by the Employee and the Chair of the Company’s Board of Directors or his delegee (in each case, subject to the termination provisions of Section 12). The provisions of this Agreement may require a variance from the terms and conditions of certain compensation or bonus plans under circumstances where such plans would not provide for payment thereof in order to obtain the maximum benefits for the Employee. The parties intend that, to the extent permitted under Code Section 409A, the provisions of this Agreement shall supersede any provisions to the contrary in such plans, and such plans shall be deemed to have been amended to correspond with this Agreement without further action by the Company or the Human Resources Committee of the Company’s Board of Directors.
18.No Right to Continued Employment. Nothing in this Agreement shall be construed as giving the Employee any right to be retained in the employ of the Company or a Subsidiary or Affiliate.
19.Governing Law. This Agreement shall be governed by and interpreted under the laws of the State of Delaware without giving effect to any conflict of laws provisions.
20.Successors and Assigns. All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective heirs, representatives, successors and assigns of the parties hereto, except that the duties and responsibilities of the Employee and the Company hereunder shall not be assignable in whole or in part.
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be given effect without the invalid or unenforceable provision or application.
22.Remedies Cumulative; No Waiver. No right conferred upon the Employee by this Agreement is intended to be exclusive of any other right or remedy, and each and every such right or remedy shall be cumulative and shall be in addition to any other right or remedy given hereunder or now or hereafter existing at law or in equity. No delay or omission by the Employee in exercising any right, remedy or power hereunder or existing at law or in equity shall be construed as a waiver thereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
EMPLOYEE:
CONAGRA BRANDS, INC.