EXHIBIT 10.21
FEE AGREEMENT
This Fee Agreement (this "Agreement") is entered into as of the 12th day
of September, 2003, by and between Crunch Acquisition Corp., a Delaware
corporation (the "Company"), X.X. Xxxxxx Partners, LLC, a Delaware limited
liability company ("JPMP") and X.X. Childs Associates, L.P., a Delaware limited
partnership ("JWC", and together with JPMP, the "Sponsors").
WHEREAS, Crunch Acquisition Corp., a Delaware corporation ("Crunch
Acquisition"), Crunch Holding Corp., a Delaware Corporation ("Crunch Holding")
which is a wholly-owned subsidiary of Crunch Equity Holding, LLC, a Delaware
limited liability company ("CEH"), and Pinnacle Foods Holding Corporation, a
Delaware corporation ("Pinnacle") and a wholly-owned subsidiary of Crunch
Holding entered into an Agreement and Plan of Merger, dated as of August 8, 2003
(the "Pinnacle Agreement"), with the Company;
WHEREAS, pursuant to the Pinnacle Agreement, the Company will be merged
with and into Pinnacle, with Pinnacle surviving the merger as a wholly-owned
subsidiary of Crunch Holding (the "Transaction");
WHEREAS, certain Affiliates (as defined herein) of JPMP and JWC will
provide equity financing (the "Pinnacle Equity Financing") to CEH in connection
with the consummation of the Transaction (the "Closing") pursuant to (i) the
Operating Agreement of CEH, to be entered into on the date of the Closing (as
such agreement may be replaced, amended, waived, supplemented or otherwise
modified from time to time, the "Operating Agreement"), and (ii) the Members'
Agreement, to be entered into on the date of the Closing, among CEH and the
members party thereto (as such agreement may be replaced, amended, waived,
supplemented or otherwise modified from time to time, the "Members' Agreement").
The Operating Agreement, the Members' Agreement and all other ancillary
documents related thereto are collectively referred to as the "Documents";
WHEREAS, the Sponsors are skilled in corporate finance, strategic
corporate planning and other related areas and are providing advisory and other
services to the Company and its subsidiaries in connection with (i) the
negotiation and consummation of the Transaction, (ii) the senior secured
financing being obtained in connection with the Initial Transaction, (iii) the
senior unsecured subordinated note financing being obtained in connection with
the Initial Transaction and, (iv) to the extent necessary, appropriate bridge
financing (clauses (i), (ii), (iii), and (iv) collectively, the "Pinnacle Debt
Financing"); and
WHEREAS, certain capitalized terms used in this Agreement are defined in
Section 4 of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
SECTION 1. PAYMENT OF FEES TO THE SPONSORS.
(a) Initial Transaction. In consideration of the services provided
by each Sponsor in connection with the Transaction (including, without
limitation, in connection with the Pinnacle Equity Financing and the Pinnacle
Debt Financing), the Company shall pay to each Sponsor (or its designee) a cash
fee equal to $2,425,000, payable concurrently with, and upon, the Closing. If
the Closing does not occur, then no fees shall be payable to the Sponsors
pursuant to this Section l(a).
(b) Payments. Payments made pursuant to this Section 1 shall be paid
by wire transfer of immediately available federal funds to the accounts
specified on Exhibit A attached hereto, or to such other account(s) as each
Sponsor may specify in writing to the Company.
SECTION 2. EXPENSES; INDEMNIFICATION.
(a) Expenses. The Company shall (i) pay on demand all fees and
expenses incurred by the Sponsors and their Controlled Affiliates or any of them
in connection with the Transaction, the Documents, the Pinnacle Debt Financing,
and the Pinnacle Equity Financing, including, without limitation, the fees and
expenses of O'Melveny & Xxxxx LLP, counsel to JPMP, and Xxxx Xxxxxxx LLP,
counsel to JWC, and any other consultants or advisors retained by the Sponsors
or their respective counsel, (ii) hold the Sponsors and their Controlled
Affiliates harmless against all liability for the payment of all fees and
expenses incurred from time to time by CEH or Crunch Holding in connection with
CEH's or Crunch Holdings' performance and compliance with all agreements and
conditions contained in the Pinnacle Agreement and the Documents on its or their
part to be performed or complied with, (iii) pay on demand the reasonable costs
and expenses (including fees and expenses of counsel, accountants and other
advisors) incurred by the Sponsors or their Controlled Affiliates in connection
with any amendment or waiver of, or enforcement of, any Document, (iv) pay on
demand the reasonable fees and expenses incurred by the Sponsors and their
Controlled Affiliates in any filing with any governmental authority with respect
to their investment in CEH, the Transaction, or in any other filing with any
governmental authority with respect to the Company or CEH that mentions the
Sponsors or any of their Controlled Affiliates and (v) pay all other fees and
incurred by the Sponsors and their Controlled Affiliates or any of them in
connection with this Agreement. The provisions of this Section 2(a) are
automatically assigned to any person who acquires from the Sponsors or their
Controlled Affiliates any units of CEH.
(b) Indemnity and Liability. The Company shall indemnify, defend,
exonerate and hold each of JPMP, JWC, and each of their respective partners,
shareholders, Controlled Affiliates, directors, officers, fiduciaries,
employees, attorneys and agents and each of the partners, shareholders,
directors, officers, fiduciaries, employees, attorneys and agents of each of the
foregoing (collectively, the "Indemnitees") free and harmless from and against
any and all actions, causes of action, suits, losses, liabilities and damages,
and expenses in connection therewith, including, without limitation, reasonable
attorneys' fees and disbursements (collectively, the "Indemnified Liabilities"),
incurred by the Indemnitees or any of them as a result of, or arising out of, or
relating to the execution, delivery, performance, enforcement or existence of
this Agreement (including, without limitation, any indemnification obligation
assumed or incurred by any Indemnitee to or on behalf of any Sponsor, or its
accountants or other representatives, agents or Controlled Affiliates) except
for any such Indemnified Liability arising on account of such Indemnitee's gross
negligence or willful misconduct, and if and to the
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extent that the foregoing undertaking may be unenforceable for any reason, the
Company shall make the maximum contribution to the payment and satisfaction of
each of the Indemnified Liabilities which is permissible under applicable law.
None of the Indemnitees shall be liable to the Company or any of its Affiliates
for any act or omission suffered or taken by such Indemnitee that does not
constitute gross negligence or willful misconduct.
SECTION 3. AMENDMENTS AND WAIVERS. No amendment or waiver of any term,
provision or condition of this Agreement shall be effective, unless in writing
and executed by each Sponsor and the Company. No waiver on any one occasion
shall extend to or effect or be construed as a waiver of any right or remedy on
any future occasion. No course of dealing of any person nor any delay or
omission in exercising any right or remedy shall constitute an amendment of this
Agreement or a waiver of any right or remedy of any party hereto.
SECTION 4. DEFINED TERMS.
(a) "Affiliate" means, with respect to any Person, any (i) director,
officer, limited or general partner, member or stockholder holding 5% or more of
the outstanding capital stock or other equity interests of such Person, and (ii)
other Person that, directly or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with, such Person.
(b) "control" means, including, with correlative meaning, the terms
"controlling," "controlled by" and "under common control with", with respect to
any Person, the possession, directly or indirectly, of the power to direct or
cause the direction of the management, policies or investment decisions of such
Person, whether through the ownership of voting securities, by contract or
otherwise.
(c) "Controlled Affiliate" means, with respect to any Person, any
(i) director, officer, limited or general partner, member or stockholder holding
5% or more of the outstanding capital stock or other equity interests of such
Person, and (i) any other Person that, directly or indirectly, through one or
more intermediaries, is controlled by such Person.
(d) "Person" shall be construed in the broadest sense and means and
includes a natural person, a partnership, a corporation, an association, a joint
stock company, a limited liability company, a trust, a joint venture, an
unincorporated organization and any other entity and any federal, state,
municipal, foreign or other government, governmental department, commission,
board, bureau, agency or instrumentality, or any private or public court or
tribunal.
SECTION 5. GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE; WAIVER OF
JURY TRIAL.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to any law or rule
that would cause the laws of any jurisdiction other than the State of New York
to be applied.
(b) ANY ACTION OR PROCEEDING AGAINST THE PARTIES RELATING IN ANY WAY
TO THIS AGREEMENT MAY BE BROUGHT AND ENFORCED IN THE COURTS OF THE STATE OF NEW
YORK OR THE UNITED
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XXXXXX XXXXXXXX XXXXX FOR THE SOUTHERN DISTRICT OF NEW YORK, TO THE EXTENT
SUBJECT MATTER JURISDICTION EXISTS THEREFOR, AND THE PARTIES IRREVOCABLY SUBMIT
TO THE JURISDICTION OF BOTH SUCH COURTS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVE,S TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION THAT SUCH PARTY MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY SUCH ACTION OR PROCEEDING IN THE COURTS OF THE STATE OF
NEW YORK LOCATED IN NEW YORK COUNTY OR THE SOUTHERN DISTRICT OF NEW YORK AND ANY
CLAIM THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN ANY INCONVENIENT FORUM. ANY JUDGMENT MAY BE ENTERED IN ANY COURT
HAVING JURISDICTION THEREOF.
(c) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT.
SECTION 6. INDEPENDENT CONTRACTOR. The parties agree and understand that
each Sponsor is and shall act as an independent contractor of the Company in the
performance of its duties hereunder. Each Sponsor is not, and in the performance
of its duties hereunder will not hold itself out as, an employee, agent or other
representative of the Company.
SECTION 7. ENTIRE AGREEMENT. This Agreement contains the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings with respect to such subject matter. The
parties hereto represent and warrant that there are no other agreements or
understandings regarding any of the subject matter hereof other than as set
forth herein and covenant not to enter into any such agreements or
understandings after the date hereof except pursuant to an amendment,
modification or waiver of the provisions of this Agreement.
SECTION 8. NOTICES. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally-recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated in
writing by such party to the other parties:
If to the Company, to:
Crunch Acquisition Corp.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Official Notices Clerk
FBO: Xxxxxxx Xxxxxx
Telecopier: (000) 000-0000
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If to JPMP, to:
X.X. Xxxxxx Partners, LLC
c/o X.X. Xxxxxx Partners, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Official Notices Clerk
FBO: Xxxxxxx Xxxxxx
Telecopier: (000) 000-0000
with a copy to:
O'Melveny & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telecopier: (000) 000-0000
If to JWC, to:
X.X. Childs Associates, L.P.
000 Xxxxxxxxxx Xxxxxx - Xxxxx 0000
Xxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxx
Telecopier: (000) 000-0000
with a copy to:
Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000
All such notices, requests, consents and other communications shall be
deemed to have been delivered (a) in the case of personal delivery or delivery
by telecopy, on the date of such delivery, (b) in the case of dispatch by
nationally-recognized overnight courier, on the next business day following such
dispatch and (c) in the case of mailing, on the third business day after the
posting thereof.
SECTION 9. SEVERABILITY. It is the desire and intent of the parties to
this Agreement that the provisions of this Agreement be enforced to the fullest
extent permissible under the law and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, in the event that any
provision of this Agreement would be held in any jurisdiction to be invalid,
prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction. Notwithstanding the foregoing, if such
provision could be more narrowly drawn so as not be invalid, prohibited or
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unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so
narrowly drawn, without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 10. COUNTERPARTS. This Agreement may be executed in any number of
original or facsimile counterparts, and each such counterpart hereof shall be
deemed to be an original instrument, but all such counterparts together shall
constitute but one agreement.
SECTION 11. HEADINGS. All descriptive headings in this Agreement are
inserted for convenience only and shall be disregarded in construing or applying
any provision of this Agreement.
SECTION 12. PREVAILING PARTY. If any legal action or other proceedings is
brought for a breach of this Agreement, the prevailing party shall be entitled
to recover its reasonable attorneys' fees and other costs incurred in bringing
such action or proceeding, in addition to any other relief to which such party
may be entitled.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Fee Agreement on
the date first written above.
CRUNCH ACQUISITION CORP.
By: /s/ XXXXXXXX XXXXX
------------------
Name: Xxxxxxxx Xxxxx
CRUNCH HOLDING CORP.
By: /s/ XXXXXXXX XXXXX
------------------
Name: Xxxxxxxx Xxxxx
X.X. XXXXXX PARTNERS, LLC
By: /s/ XXXXXXXX XXXXX
------------------
Name: Xxxxxxxx Xxxxx
IN WITNESS WHEREOF, the parties hereto have executed this Fee Agreement on
the date first written above.
X.X. CHILDS ASSOCIATES, L.P.
By: X.X. Childs Associates, Inc.,
its general partner
By: /s/ XXXX XXXXXX
---------------
Name: Xxxx Xxxxxx
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EXHIBIT A
X.X. Xxxxxx Partners, LLC
X.X. Xxxxxx Chase Bank
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA #: 021 000 021
Account #: 000-000-000
Contact: Xxxxxxxxx XxXxxxxx
X.X. Childs Associates, L.P.
Boston Private Bank & Trust Company
Boston, MA
ABA #011 002 343
Account Name: X.X. Childs Associates, L.P.
Account #0000000
