CAG ConAgra Brands Inc

 

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
SCHEDULE 13D
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)
Under the Securities Exchange Act of 1934
(Amendment No. )
ConAgra Foods, Inc.
(Name of Issuer)
Common Stock, par value $5.00 per share
(Title of Class of Securities)
205887102
(CUSIP Number)
Marc Weingarten, Esq. Eleazer Klein, Esq.
919 Third Avenue
New York, New York 10022
(212) 756-2000
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 8, 2015
(Date of Event which Requires
Filing of this Schedule)

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. [ ]

NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

 

(Continued on following pages)

(Page 1 of 11 Pages)

--------------------------

The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

1	NAME OF REPORTING PERSON JANA PARTNERS LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) ¨ (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS AF
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER 30,863,322 Shares (including options to purchase 19,032,000 Shares)
	8	SHARED VOTING POWER 0
	9	SOLE DISPOSITIVE POWER 30,863,322 Shares (including options to purchase 19,032,000 Shares)
	10	SHARED DISPOSITIVE POWER 0
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 30,863,322 Shares (including options to purchase 19,032,000 Shares)
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES			¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) (see Item 5) 7.2%
14	TYPE OF REPORTING PERSON IA

 

 

 

1	NAME OF REPORTING PERSONS BRAD ALFORD
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) ¨ (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS PF (See Item 3)
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER 26,500 Shares
	8	SHARED VOTING POWER 0
	9	SOLE DISPOSITIVE POWER 26,500 Shares
	10	SHARED DISPOSITIVE POWER 0
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 26,500 Shares
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES			¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) (see Item 5) 0.0%
14	TYPE OF REPORTING PERSON IN

 

 

 

1	NAME OF REPORTING PERSONS JAMES LAWRENCE
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) ¨ (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS PF (See Item 3)
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER 515,000 Shares
	8	SHARED VOTING POWER 0
	9	SOLE DISPOSITIVE POWER 515,000 Shares
	10	SHARED DISPOSITIVE POWER 0
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 515,000 Shares
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES			¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) (see Item 5) 0.1%
14	TYPE OF REPORTING PERSON IN

 

 

 

1	NAME OF REPORTING PERSONS DIANE DIETZ
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) ¨ (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS PF (See Item 3)
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER 36,000 Shares (including options to purchase 15,000 shares)
	8	SHARED VOTING POWER 0
	9	SOLE DISPOSITIVE POWER 36,000 Shares (including options to purchase 15,000 shares)
	10	SHARED DISPOSITIVE POWER 0
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 36,000 Shares (including options to purchase 15,000 shares)
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES			¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) (see Item 5) 0.0%
14	TYPE OF REPORTING PERSON IN

 

 

Item 1.

SECURITY AND ISSUER

 

This statement on Schedule 13D relates to the shares ("Shares") of common stock, par value $5.00 per share, of ConAgra Foods, Inc., a Delaware corporation (the "Issuer"). The principal executive office of the Issuer is located at One ConAgra Drive, Omaha, NE 68102-5001.

Item 2.

IDENTITY AND BACKGROUND.

 

(a) This statement is filed by (i) JANA Partners LLC, a Delaware limited liability company ("JANA"); (ii) Brad Alford ("Mr. Alford"); (iii) James Lawrence ("Mr. Lawrence") and (iv) Diane Dietz ("Ms. Dietz" and together with JANA, Mr. Alford and Mr. Lawrence, the "Reporting Persons"). JANA is a private money management firm which holds Shares of the Issuer in various accounts under its management and control. The principal owner of JANA is Barry Rosenstein ("Mr. Rosenstein" or the "Principal").

(b) The principal business address of JANA and the Principal is 767 Fifth Avenue, 8th Floor, New York, NY 10153.

(c) The principal business of JANA and the Principal is investing for accounts under their management. The principal business of Mr. Lawrence is serving as chairman of Great North Star, LLC, an investment and advisory firm. Mr. Alford is retired. The principal business of Ms. Dietz is consulting services.

(d) Neither the Reporting Persons nor the Principal has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

(e) Neither the Reporting Persons nor the Principal has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

(f) JANA is a limited liability company organized in Delaware. The Principal, Mr. Alford, Mr. Lawrence and Ms. Dietz are United States citizens. 

Item 3.

SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.

 

The 31,440,822 Shares reported herein as beneficially owned by the Reporting Persons were acquired at an aggregate purchase price of approximately $562 million.

 

JANA used a total of approximately $540 million (including brokerage commissions) in the aggregate to acquire the 30,863,322 Shares (including options to purchase 19,032,000 Shares) reported herein as beneficially owned by JANA. Funds for the purchase of the Shares reported herein as beneficially owned by JANA were derived from investment funds in accounts managed by JANA. Such Shares are held by the investment funds managed by JANA in cash accounts and none of the funds used to purchase the Shares reported herein as beneficially owned by JANA were provided through borrowings of any nature.

 

  

Mr. Alford used a total of approximately $1 million in the aggregate to acquire the 26,500 Shares reported herein as beneficially owned by him. The Shares reported herein as beneficially held by Mr. Alford were purchased solely with the personal funds of Mr. Alford and none of the funds used to purchase the Shares reported herein as beneficially owned by him were provided through borrowings of any nature.

 

Mr. Lawrence used a total of approximately $20 million in the aggregate to acquire the 515,000 Shares reported herein as beneficially owned by him. Funds for the purchase of the Shares reported herein as beneficially owned by Mr. Lawrence were derived from personal funds and margin borrowings described in the following sentence. Such Shares are held by Mr. Lawrence in a commingled margin account, which may extend margin credit to Mr. Lawrence from time to time, subject to applicable federal margin regulations, stock exchange rules, and credit policies. In such instances, the positions held in the margin account are pledged as collateral security for the repayment of debit balances in the account. The margin account bears interest at a rate based upon the broker's call rate from time to time in effect.

 

Ms. Dietz used a total of approximately $1 million in the aggregate to acquire the 36,000 Shares (including options to purchase 15,000 Shares) reported herein as beneficially owned by her. The Shares reported herein as beneficially held by Ms. Dietz were purchased solely with the personal funds of Ms. Dietz and none of the funds used to purchase the Shares reported herein as beneficially owned by her were provided through borrowings of any nature. 

 

Item 4.

PURPOSE OF TRANSACTION.

 

The Reporting Persons acquired the Shares because they believe the Shares are undervalued and represent an attractive investment opportunity.  JANA believes that the Issuer has significantly underperformed in shareholder value creation.  Most significantly, the acquisition of Ralcorp Inc. in January 2013, which in JANA’s opinion was the most significant recent strategic decision made by the Issuer’s Board of Directors (the “Board”), has been followed by disappointing performance for shareholders, repeated guidance misses, negative revisions to long term earnings targets, no dividend per share growth, and operating performance challenges. Issues with this acquisition led to the Issuer taking a $1.3 billion impairment on March 26, 2015, after which JANA began purchasing the Shares and analyzing opportunities for improved shareholder value creation.  JANA believes that in the period since the Ralcorp acquisition, the Board has failed to adequately address the shareholder value destruction and persistent underperformance that followed the Ralcorp acquisition.

 

JANA is prepared, if necessary, to nominate Messrs. Alford, Lawrence and Rosenstein (collectively, the “Potential Nominees”) for election to the Issuer’s board of directors and to participate in the solicitation of proxies in support of the Potential Nominees.  JANA  believes that the Potential Nominees possess the necessary expertise, experience and focus on shareholder value to help the Board evaluate and address opportunities for shareholder value creation, including but not limited to:  undertaking a strategic review of the Issuer’s strategy and corporate structure to determine if its businesses are optimally positioned to succeed, as well as various potential alternative transactions and structures; addressing the Issuer’s operational performance and cost structure; and optimizing the Issuer’s capital allocation policies and capital structure. JANA has requested, however, that the Issuer delay the June 21, 2015, deadline to submit notice of stockholder nominations for the Issuer’s 2015 annual meeting of stockholders (the “Annual Meeting”) in order to give the Issuer and JANA more time to have collaborative discussions regarding the steps JANA believes the Issuer should take to maximize shareholder value, as well as why JANA believes stockholders would benefit from the addition of the Potential Nominees to the Board. 

 

 

Mr. Lawrence is the former Chairman of Rothschild North America and former CFO of both Unilever, plc and General Mills, Inc.  Mr. Alford is the former CEO of Nestlé USA.  Mr. Rosenstein is the Managing Partner of JANA.  In addition, JANA has retained Diane Dietz, who is the former Chief Marketing and Merchandising Officer of Safeway Inc. and had responsibility for all product categories, supply chain and Safeway’s $7 billion private label program, to provide consulting services with respect to analyzing the Issuer’s performance and opportunities.  Messrs. Lawrence and Alford and Ms. Dietz have all made significant personal investments in the Shares totaling over $21 million.

 

The Reporting Persons may also take other steps to increase shareholder value as well as pursue other plans or proposals that relate to or would result in any of the matters set forth in subparagraphs (a)-(j) of Item 4 of Schedule 13D, excluding (i) acquiring a control stake in the Issuer’s Shares, or grouping with any other party or parties to do so, (ii) engaging in an extraordinary transaction, such as a merger, with the Issuer, or acquiring a material amount of the Issuer’s assets, or grouping with any other party or parties to do either, or (iii) seeking to exert negative control over the important corporate actions of the Issuer, or grouping with any other party or parties to do so, although the Reporting Persons may seek to influence such actions through customary means, including presenting its views for consideration to the Issuer, shareholders and other interested parties, privately or publicly, and, if necessary, through the exercise of its shareholder rights including the right to propose new directors for the Issuer’s board of directors.

 

Depending on various factors including, without limitation, the Issuer's financial position and strategic direction, the outcome of the discussions and actions referenced above, actions taken by the Issuer's board of directors, price levels of the Shares, other investment opportunities available to the Reporting Persons, conditions in the securities market and general economic and industry conditions, the Reporting Persons may in the future take such actions with respect to their investment position in the Issuer as they deem appropriate including, without limitation, purchasing additional Shares or selling some or all of their Shares, and/or engaging in short selling of or hedging or similar transactions with respect to the Shares.

  

  

 

 

Item 5.

INTEREST IN SECURITIES OF THE COMPANY.

 

(a) The aggregate percentage of Shares reported to be beneficially owned by the Reporting Persons is based upon 427,052,296 Shares outstanding, which is the total number of Shares outstanding as of February 22, 2015, as reported in the Issuer's Quarterly Report on Form 10-Q for the quarterly period ended February 22, 2015, filed with the SEC on March 30, 2015.

As of the close of business on the date hereof, JANA may be deemed to beneficially own 30,863,322 Shares (including options to purchase 19,032,000 Shares), constituting approximately 7.2% of the Shares outstanding.

As of the close of business on the date hereof, Mr. Alford may be deemed to beneficially own 26,500 Shares, constituting approximately 0.0% of the Shares outstanding.

As of the close of business on the date hereof, Mr. Lawrence may be deemed to beneficially own 515,000 Shares, constituting approximately 0.1% of the Shares outstanding.

As of the close of business on the date hereof, Ms. Dietz may be deemed to beneficially own 36,000 Shares (including options to purchase 15,000 Shares), representing approximately 0.0% of the Shares outstanding.

By virtue of the Nominee Agreements and the Consulting Agreement (as defined and described in Item 6 below), JANA, each of the Independent Nominees and Ms. Dietz may be deemed to have formed a "group" within the meaning of Section 13(d)(3) of the Exchange Act and may be deemed to beneficially own an aggregate of 31,440,822 Shares (including options to purchase 19,047,000 Shares), representing approximately 7.4% of the outstanding Shares. Each Nominee expressly disclaims beneficial ownership of the Shares beneficially owned by JANA, each other Nominee and Ms. Dietz and JANA expressly disclaims beneficial ownership of the Shares beneficially owned by each Nominee and Ms. Dietz. Ms. Dietz expressly disclaims beneficial ownership of the Shares beneficially owned by JANA and each Nominee.

(b) JANA has sole voting and dispositive power over 30,863,322 Shares (including options to purchase 19,032,000 Shares), which power is exercised by the Principal. Mr. Alford has sole voting and

 

dispositive power over the 26,500 Shares beneficially owned by him. Mr. Lawrence has sole voting and dispositive power over the 515,000 Shares beneficially owned by him. Ms. Dietz has sole voting and dispositive power over the 36,000 Shares (including options to purchase 15,000 Shares) beneficially owned by her.

(c) Information concerning transactions in the Shares effected by the Reporting Persons during the past sixty days is set forth in Exhibit A hereto and is incorporated herein by reference. All of the transactions in Shares listed hereto were effected in the open market through various brokerage entities.

(d) No person (other than the Reporting Persons) is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Shares.

(e) Not applicable.

 

Item 6.

CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.

 

Messrs. Alford and Lawrence (each an "Independent Nominee") have each entered into a nominee agreement (the "Nominee Agreement") with JANA substantially in the form attached as Exhibit B to this Schedule 13D whereby each Independent Nominee agreed, if JANA so elects, to become a member of a slate of nominees (the "Slate") and stand for election as a director of the Issuer. Pursuant to each Nominee Agreement, JANA has agreed to pay the costs of soliciting proxies in connection with the Annual Meeting, and to defend and indemnify each Independent Nominee against, and with respect to, any losses that may be incurred by them in the event they become a party to litigation based on their nomination as a candidate for election to the Board and the solicitation of proxies in support of their election. Each Independent Nominee will receive compensation under the Nominee Agreement in the amount of $90,000 in the event that he serves on the Slate until the Annual Meeting (or the earlier abandonment of the proxy solicitation), and an additional $140,000 in the event of his appointment or election. A copy of the form of the Nominee Agreement is attached as Exhibit B and is incorporated by reference herein.

JANA also entered into a consulting agreement (the "Consulting Agreement") pursuant to which Ms. Dietz agreed to provide analysis of the Issuer and certain related services. JANA shall pay Ms. Dietz a one-time fee in the amount of $90,000. The Consulting Agreement permits Ms. Dietz to buy Shares as long as Ms. Dietz agrees to hold such Shares until the earlier of (i) the conclusion of the Annual Meeting or (ii) the termination of the Proxy Solicitation. A copy of the Consulting Agreement is attached as Exhibit C and is incorporated by reference herein.

JANA beneficially owns (i) 21,178 call options with a strike price of $33 which expire on July 17, 2015, (ii) 89,242 call options with a strike price of $33 which expire on July 24, 2015, (iii) 24,900 call options with a strike price of $34 that expire on July 31, 2015, (iv) 40,000 call options with a strike price of $34 that expire on August 5, 2015, and (v) 15,000 call options with a strike price of $34 that expire on August 7, 2015, for a total of call options for 19,032,000 Shares.

Ms. Dietz beneficially owns 150 call options with a strike price of $38 which expire on July 17, 2015.

Except as otherwise set forth herein and the joint filing agreement attached hereto as Exhibit D, the Reporting Persons have no contracts, arrangements, understandings or relationships with any person with respect to the securities of the Issuer.

 

 

Item 7.

MATERIAL TO BE FILED AS EXHIBITS.

 

Exhibit A:

Transactions in the Shares During the Last 60 Days.

Exhibit B:	Form of Nominee Agreement
Exhibit C:	Consulting Agreement
Exhibit D:	Joint Filing Agreement, dated June 18, 2015

 

SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: June 18, 2015

 

 

	JANA PARTNERS LLC
	By:		/s/ Jennifer Fanjiang
	Name:		Jennifer Fanjiang
	Title:		General Counsel
	/s/ Brad Alford
	BRAD ALFORD
	/s/ James Lawrence
	JAMES LAWRENCE
	/s/ Diane Dietz
	DIANE DIETZ

 

 

EXHIBIT A

 

 

Transactions in Shares of the Issuer During the Last 60 Days

 

The following table sets forth all transactions in the Shares effected in the past sixty days by the Reporting Persons. Except as otherwise noted, all such transactions were effected in the open market through brokers and the price per share is net of commissions.

 

JANA

 

Trade Date	Shares Purchased (Sold)	Price Per Share ($)
4/20/2015	200,000	37.62
4/20/2015	192,765	37.72
4/20/2015	25,000	37.78
4/21/2015	180,060	37.68
4/22/2015	103,840	37.52
4/23/2015	72,956	37.60
4/24/2015	73,809	37.53
4/27/2015	71,585	37.35
4/30/2015	5,300	36.09
4/30/2015	100,000	36.10
5/1/2015	133,336	36.41
5/4/2015	93,679	37.10
5/5/2015	114,007	37.00
5/6/2015	145,723	36.99
5/7/2015	101,546	37.38
5/8/2015	50,000	37.58
5/11/2015	81,573	37.43
5/12/2015	80,600	37.59
5/13/2015	1,700	37.85
5/15/2015	18,900	38.07
5/15/2015	13,600	38.11
5/15/2015	147,300	38.34
5/18/2015	64,213	38.58
5/18/2015	68,106	38.59
5/18/2015	79,800	38.62
5/19/2015	16,381	38.41
5/19/2015	149,059	38.49
5/20/2015	267,326	38.87
5/20/2015	34,585	38.92
5/21/2015	142,390	38.89
5/21/2015	286,400	38.91
5/22/2015	8,300	38.85
5/22/2015	195,654	38.86
5/26/2015	48,703	38.93
5/26/2015	52,719	38.94
5/27/2015	40,843	38.68
5/28/2015	91,367	38.68
5/29/2015	100,000	38.67
6/1/2015	99,829	38.78
6/2/2015	80,783	38.03
6/2/2015	46,300	38.08

 

6/3/2015	28,762	38.43
6/5/2015	42,000	37.67
6/8/2015	164,400	37.65
6/9/2015	173,434	37.79
6/9/2015	89,900	38.00
6/10/2015	28,467	38.00
6/10/2015	126,133	38.04
6/10/2015	345,400	38.11
6/11/2015	152,600	38.30
6/12/2015	200,000	38.04
6/15/2015	149,533	37.98
6/15/2015	146,571	38.00
6/16/2015	6,780	38.18
6/16/2015	490,720	38.19
6/16/2015	52,500	38.66
6/17/2015	15,001	38.49
6/17/2015	199,700	38.85
6/18/2015	9,000	38.92
6/18/2015	422,000	38.99

 

 

Mr. Alford

 

Trade Date	Amount Acquired (Sold)	Price Per Share ($)[1]
06/09/2015	26,500	37.75

 

Mr. Lawrence

 

Trade Date	Amount Acquired (Sold)	Price Per Share ($)[2]
06/03/2015	515,000	38.40

 

Ms. Dietz

 

Trade Date	Amount Acquired (Sold)	Price Per Share ($)
06/09/2015	15,000	38.05
06/09/2015	3,000	38.09
06/15/2015	3,000	37.94

 

---

^[1] The price reported is a weighted average price. These shares were purchased in multiple transactions at prices ranging from $37.65 to $37.88, inclusive. The Reporting Persons undertake to provide to the Issuer, any security holder of the Issuer, or staff of the SEC, upon request, full information regarding the number of shares acquired at each price within the range set forth herein.

^[2] The price reported is a weighted average price. These shares were purchased in multiple transactions at prices ranging from $38.10 to $38.64, inclusive. The Reporting Persons undertake to provide to the Issuer, any security holder of the Issuer, or staff of the SEC, upon request, full information regarding the number of shares acquired at each price within the range set forth herein.

 

EXHIBIT B

Form of Nominee Agreement

 

 

AGREEMENT

 

1.                  This Nomination Agreement (the “Agreement”), is by and between JANA Partners LLC (“JANA,” “we” or “us”) and ___ (“you”).

 

2.                  You agree that you are willing, should we so elect, to become a member of a slate of nominees (the “Slate”) of a JANA affiliate (the “Nominating Party”) which nominees shall stand for election as directors of ConAgra Foods, Inc. (“ConAgra”) in connection with a proxy solicitation (the “Proxy Solicitation”) to be conducted in respect of the 2015 annual meeting of stockholders of ConAgra (including any adjournment or postponement thereof or any special meeting held in lieu thereof, the “Annual Meeting”) or appointment or election by other means. You further agree to serve as a director of ConAgra if so elected or appointed. JANA agrees on behalf of the Nominating Party to pay the costs of the Proxy Solicitation. JANA also agrees on behalf of the Nominating Party to pay you, (i) $90,000 within three (3) business days of the date hereof and (ii) in the event that you are appointed or elected and serve as a director of ConAgra, $140,000 within three (3) business days of such appointment or election, provided that in the case of clauses (i) and (ii) you agree that an amount equal to the estimated after-tax proceeds of such compensation (assuming a combined federal, state and city tax rate of 45%, rounded to the nearest whole dollar) will be invested in the common stock of ConAgra within five (5) business days of receipt (or such longer period as may be required to comply with any legal or regulatory requirements, or in the case of clause (ii) to comply with the policies of the board of directors of ConAgra (the “Board”)). You agree to hold any securities purchased by you in accordance with this paragraph (i) in the event you are chosen by JANA to become a member of the Slate and are appointed or elected as a director of ConAgra pursuant to this Agreement, until at least the later of (A) the first date as of which you are no longer a director of ConAgra and (B) three (3) years from the date of such appointment or election (or if earlier, the date of any merger or sale which has been approved if applicable by the Board and shareholders), (ii) in the event you are chosen by JANA to become a member of the Slate but are not appointed or elected as a director of ConAgra, until at least the earlier of (A) the conclusion of the Annual Meeting and (B) the termination of the Proxy Solicitation, or (iii) in the event you are not chosen by JANA to become a member of the Slate, until at least the earlier of (A) public announcement of the nomination by JANA or the Nominating Party of a Slate or (B) the termination of the Proxy Solicitation, provided, however, that JANA agrees to promptly notify you of its decision to terminate the Proxy Solicitation. You understand and agree that the compensation described in this paragraph may not be paid to you, or that you may be required to refund such compensation, in the event that this Agreement is terminated by JANA for Cause. “Cause” shall mean (i) fraud or willful misconduct by you as determined by a court of competent jurisdiction in an action to which you are a party, (ii) a material violation by you of applicable laws as determined by a court of competent jurisdiction in an action to which you are a party, or (iii) your refusal to serve as a nominee for the Board or seated as a member of the Board.

 

3.                  JANA agrees on behalf of the Nominating Party that it will defend, indemnify and hold you harmless from and against any and all losses, claims, damages, penalties, judgments, awards, settlements, liabilities, costs, expenses and disbursements (including, without limitation, reasonable attorneys' fees, costs, expenses and disbursements) incurred by you in the event that you become a party or are threatened to be made a party to, or are called to give evidence in, any civil, criminal, administrative or arbitrative

action, suit or proceeding, and any appeal thereof, (i) relating to your role as a nominee for director of ConAgra on the Slate, or (ii) otherwise arising from or in connection with or relating to the Proxy Solicitation. JANA will advance on your behalf, any and all expenses (including, without limitation, reasonable attorneys' fees, costs, expenses and disbursements) actually and reasonably incurred by you in such action, regardless of whether you are ultimately determined to be entitled to such indemnification or advancement of expenses, provided that, if you are ultimately determined not to be entitled to indemnification under this Agreement for such expenses, you will reimburse JANA for such expenses. Your right of indemnification hereunder shall continue after the Annual Meeting has taken place but only for events that occurred prior to the conclusion of the Annual Meeting and on or after the date hereof. Anything to the contrary herein notwithstanding, JANA is not indemnifying you for any action taken by you or on your behalf that occurs prior to the date hereof or for any actions taken by you as a director of ConAgra, if you are elected. Nothing herein shall be construed to provide you with indemnification (i) if you are found by a court of competent jurisdiction in an action to which you are a party to have engaged in a violation of any provision of state or federal law in connection with the Proxy Solicitation, unless you demonstrate that your action was taken in good faith and in a manner you reasonably believed to be in or not opposed to the best interests of electing the Slate; (ii) if you are found by a court of competent jurisdiction in an action to which you are a party to have, in connection with the Proxy Solicitation, acted in a manner that constitutes gross negligence or willful misconduct; or (iii) if you are found by a court of competent jurisdiction in an action to which you are a party to have provided false or misleading information, or omitted material information, in the JANA Questionnaire (as defined below) or to JANA otherwise in connection with the Proxy Solicitation. You shall promptly notify JANA in writing in the event of any third-party claims actually made against you or known by you to be threatened if you intend to seek indemnification hereunder in respect of such claims (provided that your failure to promptly notify JANA shall not relieve JANA from any liability it may have under this Agreement except to the extent JANA shall have been materially prejudiced by such failure). In addition, upon your delivery of notice with respect to any such claim, JANA shall promptly assume control of the defense of such claim with counsel chosen by JANA, which counsel shall be reasonably acceptable to you, provided, however, if such counsel has a conflict as reasonably determined by your counsel or if the subject matter of the claim includes claims that could result in criminal liability or regulatory discipline for you, you will be allowed to conduct the defense of such claim with the counsel of your choosing, which counsel shall be reasonably acceptable to JANA, provided, further, that in such case JANA will pay on your behalf, in advance, any and all expenses (including, without limitation, reasonable attorneys' fees, costs, expenses and disbursements) actually and reasonably incurred by you in connection with such defense, regardless of whether you are ultimately determined to be entitled to such indemnification or advancement of expenses. JANA shall not be responsible for any settlement of any claim against you covered by this indemnity without its prior written consent. However, JANA may not enter into any settlement of any such claim without your consent unless such settlement includes (i) no admission of liability or guilt by you, (ii) no request to act or refrain from acting in a particular way and (iii) an unconditional release of you from any and all liability or obligation in respect of such claim. If you are required to enforce the obligations of JANA in this Agreement in a court of competent jurisdiction in an action to which you are a party, or to recover damages for breach of this Agreement, JANA will pay on your behalf, in advance, any and all expenses (including, without limitation, reasonable attorneys' fees, costs, expenses and disbursements) actually and reasonably incurred by you in such action, regardless of whether you are ultimately determined to be entitled to such indemnification or advancement of expenses.

 

4.                  You understand that it may be difficult, if not impossible, to replace a nominee who, such as yourself, has agreed to serve on the Slate and, if elected, as a director of ConAgra if such nominee later changes his mind and determines not to serve on the Slate or, if elected, as a director of ConAgra. Accordingly, JANA is relying upon your agreement to serve on the Slate and, if elected, as a director of ConAgra. In that regard, you will be supplied with a questionnaire (the “JANA Questionnaire”) in which

you will provide JANA with information necessary for the Nominating Party to make appropriate disclosure to ConAgra and to use in creating the proxy solicitation materials to be sent to stockholders of ConAgra and filed with the Securities and Exchange Commission in connection with the Proxy Solicitation.

 

5.                  You agree that (i) upon request you will promptly complete, sign and return the JANA Questionnaire, (ii) your responses in the JANA Questionnaire will be true, complete and correct in all respects, and (iii) you will provide any additional information related to the Proxy Solicitation as may be reasonably requested by JANA. In addition, you agree that you will execute and return a separate instrument confirming that you consent to being nominated for election as a director of ConAgra and, if elected, consent to serving as a director of ConAgra. Upon being notified that you have been chosen, we and the Nominating Party may forward your consent and completed JANA Questionnaire (or summary thereof), to ConAgra, and we and the Nominating Party may at any time, in our and their discretion, disclose the information contained therein, as well as the existence and contents of this Agreement. Furthermore, you understand that we may elect, at our expense, to conduct a background and reference check on you and you agree to complete and execute any necessary authorization forms or other documents required in connection therewith, provided, however, should we elect to conduct such background and/or reference check we shall keep the results of such background and/or reference check in the strictest of confidence.

 

6.                  You further agree that, subject to any obligation you may have to comply with law, rules, regulation or legal process relating to the Proxy Solicitation, (i) you will treat confidentially all information relating to the Proxy Solicitation which is non-public, confidential or proprietary in nature; (ii) you will not issue, publish or otherwise make any public statement or any other form of public communication relating to ConAgra or the Proxy Solicitation without the prior approval of JANA; and (iii) you will not agree to serve, or agree to be nominated to stand for election by ConAgra or any other stockholder of ConAgra (other than JANA), as a director of ConAgra without the prior approval of JANA.

 

7.                  In addition to the purchases of common stock of ConAgra set forth in the first paragraph above, you may invest in additional securities of ConAgra. With respect to any purchases made pursuant to the first paragraph above or this paragraph, (i) you agree to consult with JANA regarding such purchases and provide necessary information so that we may comply with any applicable disclosure or other obligations which may result from such investment and (ii) JANA or its affiliates shall prepare and complete any required disclosures including all regulatory filings related thereto at no cost to you. With respect to any purchases made pursuant to this paragraph you agree not to dispose of any such securities prior to the termination of this Agreement.

 

8.                  Each of us recognizes that should you be elected or appointed to the Board all of your activities and decisions as a director will be governed by applicable law and subject to your fiduciary duties, as applicable, to ConAgra and to the stockholders of ConAgra and, as a result, that there is, and can be, no agreement between you and JANA that governs the decisions which you will make as a director of ConAgra.

 

9.                  This Agreement shall automatically terminate on the earliest to occur of (i) the conclusion of the Annual Meeting, (ii) your election or appointment to the Board, (iii) the termination of the Proxy Solicitation or (iv) our election to not include you as part of the Slate, provided, however, that the second

and third, JANA’s confidentiality obligations in the fifth, and the eighth, tenth and eleventh paragraphs of this Agreement shall survive such termination.

 

10.              This Agreement sets forth the entire agreement between JANA and you as to the subject matter contained herein, and cannot be amended, modified or terminated except by a writing executed by JANA and you.

 

11.              This Agreement shall be governed by the laws of the State of New York, without regard to the principles of the conflicts of laws thereof. The parties agree to the exclusive jurisdiction of the state and federal courts of New York, New York, and waive, and agree not to plead or to make, any claim that any action or proceeding brought in the state and federal courts of New York, New York has been brought in an improper or inconvenient forum.

 

[Signature Page Follows]

Agreed to as of the date both parties have signed:

 

JANA PARTNERS LLC

 

By:

Name:

Title:

Date:

 

 

___________________________

Name:

Date:

 

 

 

EXHIBIT C

Form of Consulting Agreement

 

 

CONSULTING AGREEMENT

This Consulting Agreement (the "Agreement"), dated as of June 9, 2015, is by and between JANA Partners LLC ("JANA") and Diane Dietz (the "Consultant") (each a "Party" and collectively, the "Parties").

WHEREAS, JANA desires to retain the services of the Consultant to provide analysis of ConAgra Foods, Inc. (the “Company”) and related services (the “Services”) in accordance with the following terms and conditions, and the Consultant desires to be retained by JANA to provide such Services.

NOW THEREFORE, in consideration of the covenants and conditions set forth herein, the Parties, intending to be legally bound, hereby agree as follows:

1.                  Term. Effective as of the date hereof, JANA shall engage the Consultant to provide the Services for a term beginning on the date hereof and ending upon the earlier of (a) one (1) year and (b) notice of termination of the Services from JANA to the Consultant.

2.                  Fees and Expenses. JANA shall pay the Consultant a one-time fee for the Services of $90,000 (the “Consulting Fee”) within ten (10) business days of the date hereof. The Consultant will be responsible for all business expenses associated with the Services, provided however that JANA will reimburse the Consultant for pre-approved travel expenses.

3.                  Communications. All public statements, regulatory filings or communications, contacts with Company directors and management and related activity with respect to the Company will be made and conducted by JANA with the assistance of the Consultant as requested by JANA.

4.                  Form 1099. JANA shall issue an Internal Revenue Service Form 1099 to the Consultant to account for the Consulting Fee.

5.                  Independent Contractor. The Consultant and her agents and representatives (collectively, the “Consultant Group”) are and shall be deemed for all purposes to be independent contractors. This Agreement is not an employment contract. Consequently, the Consulting Fee shall not be deemed to be wages, and therefore, shall not be subject to any withholdings or deductions. The Consultant shall be responsible for all tax payments, estimated tax payments or other tax liabilities. Nothing contained herein shall be construed to create a relationship of employer and employee between JANA and any of the Consultant Group. The Consultant shall have the sole discretion to determine the manner and means by which she shall perform the Services, the hours of work, and when and where such Services are to be performed. As an independent contractor, none of the Consultant Group is entitled to any employee benefits provided to JANA's employees, such as health insurance, pension benefits, workers' compensation, unemployment insurance, or any similar benefit.

6.                  Services Non-Exclusive. The Services to be provided by the Consultant hereunder are not and shall not be deemed to be exclusive to JANA, and the Consultant shall be free to render similar services to others and to engage in all such activities as the Consultant deems appropriate, provided that the Consultant's performance hereunder is not impaired by such other activities.

7.                  Non-Public Information. The Consultant agrees that she shall not and shall cause the Consultant Group to not disclose any non-public information which may be deemed material, including but not limited to financial projections and information regarding potential strategic transactions, regarding any company or government entity obtained (i) in the course of any employment (whether permanent, temporary, through a consulting or contractor agreement, or otherwise) by such company or other entity or (ii) as a result of any communications with employees or representatives of such company or entity or with any other party which are subject to any non-disclosure or confidentiality obligation.

8.                  Confidential Information. The Consultant acknowledges that, during the Term, the Consultant Group may have access to and may acquire Confidential Information (as defined below) regarding the business of JANA, its affiliates and affiliated funds, accounts and co-investment vehicles (the "JANA Entities"). Accordingly, the Consultant agrees that, without the prior written consent of JANA, the Consultant shall not and shall cause the Consultant Group to not, at any time, disclose to any unauthorized person or otherwise use any such Confidential Information for any reason other than the business of the JANA Entities. If any of the Consultant Group is served with legal process (such as a subpoena) that (i) may touch upon, concern, or arise out of Confidential Information or (ii) otherwise require the Consultant to disclose any Confidential Information, the Consultant will immediately notify JANA in writing, furnish JANA with a copy of such legal process and reasonably cooperate with JANA to protect the Confidential Information. None of the Consultant Group shall in any event disclose any portion of the Confidential Information not required to be disclosed in connection with such legal process. "Confidential Information" means non-public information concerning JANA’s past, current or potential portfolio names, portfolio composition, or plans with respect to the Company.

9.                  Investments in Company Stock. With respect to any purchases made by the Consultant of securities of the Company prior to the termination of the Services, (i) the Consultant agrees to consult with JANA regarding such purchases and provide necessary information so that JANA may comply with any applicable disclosure or other obligations which may result from such investment, (ii) JANA or its affiliates shall prepare and complete any required disclosures including all regulatory filings related thereto at no cost to the Consultant, and (iii) the Consultant agrees to hold any such securities until at least the earlier of (A) the conclusion of the 2015 annual meeting of stockholders of the Company (including any adjournment or postponement thereof or any special meeting held in lieu thereof, the “Annual Meeting”) and (B) the termination of a proxy solicitation by JANA or any of its affiliates, if any is commenced, in respect of the Annual Meeting.

10.              Governing Law, Venue and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without giving effect to the principles of conflicts of laws. All disputes arising out of or related to this Agreement shall be

submitted to the state and federal courts of New York, and each Party irrevocably consents to such personal jurisdiction and waives all objections thereto, but does so only for the purposes of this Agreement.

11.              Assignability. This Agreement, and the rights and obligations hereunder, may not be assigned by either Party without the express written consent of the other Party.

12.              Entire Agreement; Amendment. This Agreement may be amended only by a written instrument signed by the Parties. This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, between the Parties with respect to the subject matter of this Agreement.

13.              Survival. The Parties acknowledge that Sections 5, 6, 7, 8, 9, 10, 11, 12 and 13 of this Agreement shall survive the termination of the Agreement and/or the Consultant's Services.

14.              Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument, and it shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date and year first above written.

 

JANA Partners LLC
By:	/s/ Charles Penner		/s/ Diane Dietz
Name: Charles Penner
Title: Chief Legal Officer

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EXHIBIT D

 

Joint Filing Agreement, dated June 18, 2015

 

PURSUANT TO RULE 13d-1(k)

 

The undersigned acknowledge and agree that the foregoing statement on Schedule 13D is filed on behalf of each of the undersigned and that all subsequent amendments to this statement on Schedule 13D may be filed on behalf of each of the undersigned without the necessity of filing additional joint filing agreements. The undersigned acknowledge that each shall be responsible for the timely filing of such amendments, and for the completeness and accuracy of the information concerning him, her or it contained herein and therein, but shall not be responsible for the completeness and accuracy of the information concerning the others, except to the extent that he, she or it knows that such information is inaccurate.

 

Dated: June 18, 2015

 

	JANA PARTNERS LLC
	By:	/s/ Jennifer Fanjiang
	Name:	Jennifer Fanjiang
	Title:	General Counsel
	/s/ Brad Alford
	Brad Alford
	/s/ James Lawrence
	James Lawrence
	/s/ Diane Dietz
	Diane Dietz