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EXHIBIT
10.1
CONAGRA FOODS,
INC.
2008 PERFORMANCE SHARE
PLAN
Effective July 16, 2008,
ConAgra Foods, Inc. (“Company”) hereby adopts the
ConAgra Foods, Inc. 2008 Performance Share Plan
(“Plan”). Unless the context implies otherwise,
capitalized terms used in this Plan have the meanings set forth in
Section 16 below.
1. Purpose . The purpose
of the Plan is to foster and promote the long-term financial
success of the Company and increase stockholder value by
(a) motivating superior performance by means of Performance
Shares, (b) encouraging and providing for the acquisition of
an ownership interest in the Company by Participants and
(c) enabling the Company to attract and retain the services of
a management team responsible for the long-term financial success
of the Company. The Plan supersedes the ConAgra Foods, Inc.
Performance Share Plan that was adopted on May 29, 2006 (the
“Prior Plan”). The terms of the Prior Plan shall
continue to apply to all awards of Performance Shares made under
and pursuant to the Prior Plan.
2. Eligibility . The only
persons eligible to participate in the Plan shall be those
Participants selected by the Committee or the Chief Executive
Officer of the Company (“CEO”); provided, however, the
CEO may only select, and assign a targeted number of Performance
Shares to, individuals who are not Covered Employees (and who are
not expected to become Covered Employees by the time of payment of
the Performance Shares).
3. Participation . Within
90 days of the commencement of each Performance Period, the
Committee and/or CEO shall select the individuals, if any, who
shall participate in the Plan for the applicable Performance
Period. The Committee and/or CEO shall assign a targeted number of
Performance Shares to each selected Participant for the Performance
Period. Notwithstanding the preceding, the Committee or CEO may
select additional Participants during the Performance Period and
make an award to such Participants; provided, however, that no such
additional Participant shall be a Covered Employee (or an employee
who is expected to be a Covered Employee by the time of payment of
the Performance Shares) unless such additional Participant’s
award does not begin until the next succeeding fiscal year, or such
additional Participant’s award is a General Award.
4. Grant of Awards –
Establishment of Performance Goals .
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4.1 |
Within 90 days of the commencement of each Performance Period,
the Committee shall establish an award schedule that sets forth a
range of Performance Targets and the related Performance Shares
that may be earned by each Participant. The Committee may establish
different award schedules for different Participants and/or groups
of Participants and/or for different executive levels. |
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4.2 |
Unless the Committee determines otherwise with respect to any
General Award or Qualified Performance-Based Award, the range of
Performance Targets that shall determine the Performance Shares
earned shall be based upon Company earnings before interest and
taxes (EBIT) and Company return on average invested capital (ROAIC)
measured over the Performance Period, each as defined in the
definition section at the end of this Plan. |
5. Administration of the Plan
. The Plan shall be administered by the Committee. The
Committee by majority action thereof, is authorized to prescribe,
amend, and rescind rules and regulations relating to the Plan, to
provide for conditions deemed necessary or advisable to protect the
interest of the Company, and to make all other determinations
necessary or advisable for the administration and interpretation of
the Plan in order to carry out its provisions and purposes. The
Committee has full authority to construe and interpret the Plan and
any instruments evidencing an award under the Plan. Determinations,
interpretations, or other actions made or taken by the Committee
pursuant to the provisions of the Plan shall be final, binding, and
conclusive for all purposes and upon all persons. Subject to the
terms and conditions of this Plan, the Committee and, as
applicable, the CEO shall determine the Participants to whom awards
are granted and the terms and conditions of such awards. The
Committee may require each individual earning an award under the
Plan to enter into an agreement with the Company regarding the
terms of the award and the employee’s employment. Except to
the extent prohibited by applicable law or the applicable rules of
a stock exchange, the Committee may delegate all or any portion of
its responsibilities and powers to any one or more of its
members.
6. Earning of Awards
.
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6.1 |
Within 60 days after the end of each Performance Period, for
each award that has been made subject to a Performance Target, the
Committee shall determine whether, and to what extent, the
Performance Target for such Performance Period has been
satisfied. |
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6.2 |
With respect to any Performance Target applicable to a
Qualified Performance-Based Award, no Performance Shares will be
delivered or considered earned until the Committee has made a final
written certification that a Performance Target established to
ensure Code Section 162(m) compliance has been satisfied. In
addition, prior to delivering the Performance Shares, the Committee
shall complete the exercise of its Negative Discretion, if
desired. |
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6.3 |
In determining satisfaction of any Performance Target, the
Committee shall measure performance in accordance with United
States generally accepted accounting principles, if applicable;
provided that, the Committee may determine whether to include or
exclude any material changes that occur during an applicable
Performance Period, including, without limitation: (a) asset
write-downs; (b) litigation or claim adjudication, judgments
or settlements; (c) the effect of changes in tax or accounting
standards or principles, or other laws, regulations or provisions
affecting reported results; (d) changes in business,
operations, corporate or capital structure; (e) extraordinary,
unusual and/or nonrecurring items; (f) mergers, acquisitions
or divestitures; and (g) foreign exchange gains and losses. In
addition, the Committee may adjust any Performance Target for the
Performance Period as it deems equitable to recognize unusual or
non-recurring events affecting the Company, changes in tax laws or
accounting procedures, mergers and acquisitions and any other
factors as the Committee may determine. In the case of Qualified
Performance-Based Awards, such exclusions and adjustments may only
apply to the extent the Committee specifies in writing (not later
than the time Performance Targets are required to be established)
which exclusions and adjustments the Committee will apply to
determine whether a Performance Target has been satisfied, as well
as an objective manner for applying them, or to the extent that the
Committee determines that they may apply without adversely
affecting the award’s status as a Qualified Performance-Based
Award. |
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6.4 |
If applicable tax and/or securities laws change to permit
Committee discretion to alter the governing performance measures
without obtaining stockholder approval of such changes, the
Committee shall have sole discretion to make such changes without
obtaining stockholder approval. In addition, in the event that the
Committee determines that it is advisable to grant General Awards,
the Committee may make such grants without satisfying the
requirements of Code Section 162(m). |
7. Distribution of Performance
Shares Earned . Except as provided in Section 8,
Performance Shares earned hereunder shall be paid (i) after
the end of the Performance Period, (ii) after the Committee
has certified in writing that the material terms of this Plan were
satisfied and that awards were accurately computed according to the
terms of the Plan, and (iii) on or before the later of
(a) the fifteenth day of the third month that begins after the
month containing the end of the Performance Period or (b) the
fifteenth day of the third month that begins after the end of the
Participant’s tax year in which the end of the Performance
Period occurs. All awards of Performance Shares hereunder,
including dividend equivalent payments, shall be paid in shares of
Stock, with any fractional share equal to or greater than one-half
share rounded up to the next whole share and any fractional share
less than one-half share rounded down to the next whole
share.
8. Termination of
Employment
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8.1 |
Termination for Reasons Other Than Death, Disability or
Retirement A Participant who terminates employment with the
Company and its Subsidiaries for any reason other than death,
Disability or Retirement shall forfeit all awards hereunder that
have not been paid at the date of termination, whether earned or
not. Notwithstanding the preceding, if the Committee in its sole
and absolute discretion deems it to be appropriate and in the best
interest of the Company, the Committee may distribute Stock for all
or some of the Performance Shares that are forfeited by a
Participant (but only, in the case of a Qualified Performance-Based
Award, to the extent the award has been certified by the Committee
to have been earned). Such Performance Shares shall be distributed
to the Participant at the same time Performance Shares are
distributed to other Participants who remain employed with the
Company. |
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8.2 |
Disability or Retirement . In the event of a
Participant’s termination due to Disability or Retirement, a
distribution shall be made of a pro rata share of the Performance
Shares that would have been earned for the full performance period
(but only, in the case of a Qualified Performance-Based Award, to
the extent the award has been certified by the Committee to have
been earned), prorated based upon the full number of fiscal years
completed during the Performance Period as of the
Participant’s termination date. Such Performance Shares shall
be distributed to the Participant at the same time Performance
Shares are distributed to other Participants who remain employed
with the Company. |
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8.3
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Death . In the
event of a Participant’s death, a distribution shall be made
of a pro rata share of the targeted Performance Shares, based upon
the full number of years completed during the Performance Period.
The payment shall be made within 2 1 / 2 months after the
date of death.
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9. Dividends and Voting Rights
. Upon the payment of earned Performance Shares, the
Participant shall receive additional shares of Stock representing
dividend equivalents. The amount of dividend equivalents for each
Performance Share earned shall equal the dividends
paid on one share of Stock during the
period between the beginning of the Performance Period and the date
of distribution. A Participant shall not have voting or any other
rights with respect to any Performance Shares or with respect to
the Stock until the Stock is delivered to the
Participant.
10. Payments Upon Change of
Control . Upon a Change of Control, the Company may, at the
Board’s, or the Human Resources Committee’s, as the
case may be, sole and absolute discretion, pay the Participant all
or a portion of the Participant’s award hereunder. The
amounts paid may be based upon (a) a proration of the
Participant’s target Performance Shares, (b) a proration
of the projected Performance Shares at the time of the Change of
Control, or (c) a pro rata amount computed at the end of the
fiscal year. Any proration shall be based upon the number of
completed months elapsed in the Performance Period through the date
of the Change of Control. Any payments made under this
Section 10 shall be paid no later than the fifteen
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