Exhibit 10.12
AMENDMENT NO. 4 TO AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT OF
BIRDS EYE HOLDINGS LLC
This Amendment No. 4 (this "Amendment") to the Amended and Restated Limited
Liability Company Agreement (the "Agreement") of Birds Eye Holdings LLC (the
"Company"), dated as of August 19, 2002, as amended by that certain Amendment
No. 1 to the Agreement dated as of August 30, 2003, that certain Amendment No. 2
to the Agreement dated as of December 22, 2003, and that certain Amendment No. 3
to the Agreement dated as of February 11, 2004, is entered into as of October
31, 2005. All capitalized terms used and not otherwise defined herein shall have
the meanings given to them in the Agreement.
WHEREAS, pursuant to Section 2.8 of the Agreement, the holders of a majority of
the total voting power of the outstanding Common Units have elected to cause the
Company to create and issue additional units to Xxxx Xxxxxxxx, the President and
Chief Executive Officer of the Company, including additional Preferred Units;
and
WHEREAS, the Preferred Unitholders holding at least a majority of the Preferred
Units have consented to the issuance of such additional Preferred Units; and
WHEREAS, Xxxx Xxxxxxxx has elected to purchase such units pursuant to
subscription agreements and related documents, each dated as of the date hereof;
and
WHEREAS, pursuant to Section 7.5 of the Agreement, the Management Committee may
amend the Agreement to provide for the issuance of such units;
NOW THEREFORE, the Management Committee desires to amend the Agreement in
accordance with the terms of Section 7.5 of the Agreement to reflect the
foregoing, and hereby agrees as follows:
ARTICLE I
AMENDMENTS
1.1 Section 1.1 of the Agreement.
(a) The definition of "Class C Fraction" is hereby deleted in its entirety and
replaced with the following:
"Class C Fraction" means the lesser of (A) one and (B) a fraction, the numerator
of which is the number of Class C Units outstanding at the date of any such
determination and the denominator of which is the number of Class C Units
authorized at the date of any such determination, as each of the numerator and
denominator may be adjusted in the event of a recapitalization, split, dividend,
or other reclassification affecting the Class C Units.
(b) The definition of "Class C Units" is hereby deleted in its entirety and
replaced with the following:
"Class C Units" means the Class C Units of the Company.
(c) The definition of "Class D Fraction" is hereby deleted in its entirety and
replaced with the following:
"Class D Fraction" means the lesser of (A) one and (B) a fraction, the numerator
of which is the number of Class D Units outstanding at the date of any such
determination and the denominator of which is the number of Class D Units
authorized at the date of any such determination, as each of the numerator and
denominator may be adjusted in the event of a recapitalization, split, dividend,
or other reclassification affecting the Class D Units.
(d) The definition of "Class D Units" is hereby deleted in its entirety and
replaced with the following:
"Class D Units" means the Class D Units of the Company.
1.2 Section 2.10 of the Agreement. Section 2.10 of the Agreement is hereby
amended by (a) deleting the phrase, "[A][B][C][D][P]" and (b) adding the
following phrase in its place: "[A][B][C][D][E][P]".
1.3 Section 4.4(a)(iv) of the Agreement. Subsection (iv) of Section 4.4(a) of
the Agreement is hereby deleted in its entirety and is hereby replaced with the
following:
(iv) Fourth, after the required distributions pursuant to subparagraph (iii)
above, all remaining distributions shall be made as follows:
(A) until the First Performance Hurdle has been satisfied, 100% of the
Distributable Assets shall be distributed as follows:
(1) 95.0453% to the Common Unitholders, pro rata in accordance with the number
of Common Units held by each such Unitholder;
(2) (i) a percentage, equal to the product of (x) 2.3282% multiplied by (y) the
Class C Fraction, to the Class C Unitholders, pro rata in accordance with the
number of Class C Units held by each such Unitholder, and (ii) a percentage, if
any, equal to the product of (x) 2.3282% multiplied by (y) one minus the Class C
Fraction, to the Common Unitholders and Class C Unitholders, pro rata in
accordance with the number of Common Units and Class C Units held by each such
Unitholder; and
(3) (i) a percentage, equal to the product of (x) 2.6266% multiplied by (y) the
Class D Fraction, to the Class D Unitholders, pro rata in accordance with the
number of Class D Units held by each such
Unitholder, and (ii) a percentage, if any, equal to the product of (x) 2.6266%
multiplied by (y) one minus the Class D Fraction, to the Common Unitholders and
Class C Unitholders, pro rata in accordance with the number of Common Units and
Class C Units held by each such Unitholder;
(B) after the First Performance Hurdle has been satisfied, and until the Second
Performance Hurdle has been satisfied, 100% of the Distributable Assets shall be
distributed first to the Class D Unitholders until such Unitholders have
received under subsection (iv)(A) above and this paragraph of subsection (iv)(B)
an amount of all distributions made under subsection (iv)(A) and this paragraph
of subsection (iv)(B) equal to 5.2735% multiplied by the Class D Fraction, and
thereafter as follows:
(1) 92.4616% to the Common Unitholders, pro rata in accordance with the number
of Common Units held by each such Unitholder;
(2) (i) a percentage, equal to the product of (x) 2.2649% multiplied by (y) the
Class C Fraction, to the Class C Unitholders, pro rata in accordance with the
number of Class C Units held by each such Unitholder, and (ii) a percentage, if
any, equal to the product of (x) 2.2649% multiplied by (y) one minus the Class C
Fraction, to the Common Unitholders and Class C Unitholders, pro rata in
accordance with the number of Common Units and Class C Units held by each such
Unitholder; and
(3) (i) a percentage, equal to the product of (x) 5.2735% multiplied by (y) the
Class D Fraction, to the Class D Unitholders, pro rata in accordance with the
number of Class D Units held by each such Unitholder, and (ii) a percentage, if
any, equal to the product of (x) 5.2735% multiplied by (y) one minus the Class D
Fraction, to the Common Unitholders and Class C Unitholders, pro rata in
accordance with the number of Common Units and Class C Units held by each such
Unitholder;
(C) after the Second Performance Hurdle has been satisfied, and until the Third
Performance Hurdle has been satisfied, 100% of the Distributable Assets shall be
distributed first to the Class D Unitholders until such Unitholders have
received under subsections (iv)(A) and (B) above and this paragraph of
subsection (iv)(C) an amount of all distributions made under subsections (iv)(A)
and (B) and this paragraph of subsection (iv)(C) equal to 7.8863% multiplied by
the Class D Fraction, and thereafter as follows:
(1) 89.9113% to the Common Unitholders, pro rata in accordance with the number
of Common Units held by each such Unitholder;
(2) (i) a percentage, equal to the product of (x) 2.2024% multiplied by (y) the
Class C Fraction, to the Class C Unitholders, pro rata in accordance with the
number of Class C Units held by each such Unitholder, and (ii) a percentage, if
any, equal to the product of (x) 2.2024% multiplied by (y) one minus the Class C
Fraction, to the Common Unitholders and Class C Unitholders, pro rata in
accordance with the number of Common Units and Class C Units held by each such
Unitholder; and
(3) (i) a percentage, equal to the product of (x) 7.8863% multiplied by (y) the
Class D Fraction, to the Class D Unitholders, pro rata in accordance with the
number of Class D Units held by each such Unitholder, and (ii) a percentage, if
any, equal to the product of (x) 7.8863% multiplied by (y) one minus the Class D
Fraction, to the Common Unitholders and Class C Unitholders, pro rata in
accordance with the number of Common Units and Class C Units held by each such
Unitholder; and
(D) after the Third Performance Hurdle has been satisfied, 100% of the
Distributable Assets shall be distributed first to the Class D Unitholders until
such Unitholders have received under subsections (iv)(A), (B) and (C) above and
this paragraph of subsection (iv)(D) an amount of all distributions made under
subsections (iv)(A), (B) and (C) and this paragraph of subsection (iv)(D) equal
to 10.4656% multiplied by the Class D Fraction, and thereafter as follows:
(1) 87.3937% to the Common Unitholders, pro rata in accordance with the number
of Common Units held by each such Unitholder;
(2) (i) a percentage, equal to the product of (x) 2.1407% multiplied by (y) the
Class C Fraction, to the Class C Unitholders, pro rata in accordance with the
number of Class C Units held by each such Unitholder, and (ii) a percentage, if
any, equal to the product of (x)
2.1407% multiplied by (y) one minus the Class C Fraction, to the Common
Unitholders and Class C Unitholders, pro rata in accordance with the number of
Common Units and Class C Units held by each such Unitholder; and
(3) (i) a percentage, equal to the product of (x) 10.4656% multiplied by (y) the
Class D Fraction, to the Class D Unitholders, pro rata in accordance with the
number of Class D Units held by each such Unitholder, and (ii) a percentage, if
any, equal to the product of (x) 10.4656% multiplied by (y) one minus the Class
D Fraction, to the Common Unitholders and Class C Unitholders, pro rata in
accordance with the number of Common Units and Class C Units held by each such
Unitholder;
ARTICLE II
ADMISSION OF ADDITIONAL MEMBERS
2.1 Additional Members. Xxxx Xxxxxxxx is hereby admitted as an Additional
Member.
ARTICLE III
MISCELLANEOUS
3.1 General. Except as expressly set forth in this Amendment, all other terms
and conditions of the Agreement shall remain in full force and effect.
3.2 Governing Law. THIS AMENDMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, EXCLUDING ANY CONFLICT-OF-LAWS
RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS
AGREEMENT TO THE LAW OF ANOTHER JURISDICTION.
3.3 Counterparts. This Amendment may be executed in any number of counterparts
(including by means of telecopied signature pages), all of which together shall
constitute a single instrument.
3.4 Section Titles. Section titles and headings are for descriptive purposes
only and shall not control or alter the meaning of this Amendment as set forth
in the text hereof.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the day and
year first above written.
BIRDS EYE HOLDINGS LLC
By: its Management Committee
By: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Representative
HOLDER OF A MAJORITY OF THE COMMON UNITS AND THE
PREFERRED UNITS:
VESTAR/AGRILINK HOLDINGS LLC
By: Vestar Capital Partners IV, L.P.,
its Managing Member
By: Vestar Associates IV, L.P.,
its General Partner
By: Vestar Associates Corporation IV,
its General Partner
By: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Managing Director
