Exhibit 2.1
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF
REORGANIZATION AND MERGER
This AMENDMENT NO. 1 (this "Amendment"), dated as of January 8, 2004,
by and between Aurora Foods Inc., a Delaware corporation (the "Company" or
"Aurora"), and Crunch Equity Holding, LLC, a Delaware limited liability
company ("CEH LLC" and together with Aurora, the "parties"), amends the
Agreement and Plan of Reorganization and Merger (the "Original Agreement"),
dated as of November 25, 2003, between Aurora and CEH LLC. Capitalized terms
used but not defined herein shall have the meanings given to such terms in the
Original Agreement, and all references to Articles and Sections herein are
references to Articles and Sections of the Original Agreement.
The parties hereto, intending to be legally bound hereby, agree to
amend the Original Agreement as follows:
1. Amendments to Article I. Section 1.1(b) (vi) is hereby
amended and restated in its entirety to read as follows:
(vi) in exchange for its rights in the Sub Debt Claims and
other claims, each of the Bondholders shall be entitled to:
(A) the Cash Election, which will be valued at
approximately $0.462 for each dollar of Sub Debt Claims
(approximately $0.50 per each dollar of principal amount of
Sub Debt), or
(B) (i) the Equity Election, which (x) will be
valued at approximately $0.488 for each dollar of Sub Debt
Claims (approximately $0.53 per each dollar of principal
amount of Sub Debt), subject to adjustment, and (y) after
taking into account dilution for certain equity allocations
set forth in the CEH LLC Members Agreement, will be valued
at approximately $0.454 for each dollar of Sub Debt Claims,
subject to adjustment, (ii) the Cash-Out Subscription Right
and (iii) the Make-Up Subscription Right (the Cash-Out
Subscription Right and Make-Up Subscription Right being
referred to together herein as the "Subscription Rights").
Each Bondholder shall receive the Sub Debt Cash Consideration unless
such Bondholder validly elects to receive Bondholder Trust Interests
pursuant to an Equity Election in accordance with Section 2.1;
provided, however, that pursuant to Section 2.1(d) hereof, if the
aggregate amount of Sub Debt Claims for which Equity Elections are
made plus the amount received from Eligible Bondholders in connection
with exercises of the Cash-Out Subscription Right is less than $200
million, then Bondholders that make or are deemed to have made Cash
Elections shall be deemed to have made Equity Elections with respect
to an amount of their Sub Debt Claims equal to their pro rata
portions of the shortfall as provided in Section 2.1(d);
2. Amendments to Article II. Article II is hereby amended and
restated in its entirety to read as follows:
ARTICLE II
ALLOCATION OF EQUITY AMONG THE BONDHOLDERS
Section 2.1 Equity Election Procedure.
(a) Each Bondholder who is, either directly or through a
nominee, trustee or other Person acting in a representative capacity (a
"Holder Representative"), a record holder of Sub Debt (a "Record Date
Bondholder") on the record date (the "Record Date") established pursuant to
Rule 3017(d) of the Federal Rules of Bankruptcy Procedure and any applicable
local rules of the Delaware bankruptcy court, shall receive the Sub Debt Cash
Consideration (a "Cash Election") unless such holder makes an irrevocable
election to receive the Sub Debt Equity Consideration (an "Equity Election")
with respect to all of the Sub Debt Claims then held by such Bondholder on the
basis hereinafter set forth.
(b) The Company shall enclose an Election Form, a Trust
Accession Instrument and a Form W-9 together with the Disclosure Statement,
the related ballot and other solicitation materials distributed to the Record
Date Bondholders or their Holder Representatives. The Election Form shall
permit each Bondholder, or such Bondholder's Holder Representative acting on
such Bondholder's behalf, to make an Equity Election. Except pursuant to
Section 2.1(d), an Equity Election will be validly made only if the Voting
Agent shall have received at its designated office, by 5:00 p.m. New York City
time on the Plan Voting Date (the "Plan Voting Deadline"), a properly
completed and duly executed Election Form, a duly executed Trust Accession
Instrument, and a duly executed Form W-9 and such Bondholder, or such
Bondholder's Holder Representative, shall have made prior to the Plan Voting
Deadline a valid book entry transfer reflecting the tender of all of such
Bondholder's Sub Debt. A Holder Representative may submit a separate Election
Form for each Record Date Bondholder for whom such Holder Representative acts
as a nominee, trustee or in another representative capacity. Once made, an
Equity Election shall be binding upon such Bondholder and all successors,
transferees and assignees thereof, and may not be revoked, rescinded, amended
or superceded by such Bondholder or any other Person.
(c) The determination of the Company, in its sole
discretion, which it may delegate in whole or in part to the Voting Agent,
shall be conclusive and binding as to whether or not Equity Elections have
been timely and validly made pursuant to this Section 2.1. The Company may, in
its sole discretion, which it may delegate in whole or in part to the Voting
Agent, disregard immaterial defects in any Election Form or related document.
The decision of the Company or Voting Agent in such matters shall be
conclusive and binding so long as it has acted in good faith. Neither the
Company nor the Voting Agent shall be under any obligation to notify any
person of any defect in any Election Form or related documents submitted to
the Voting Agent.
(d) Notwithstanding the foregoing provisions of this Section
2.1, to the extent that the sum of (x) the aggregate amount of Sub Debt Claims
for which Equity Elections are validly made pursuant to Section 2.1(b) plus
(y) an amount equal to the aggregate amount of Cash-Out Class A Units validly
subscribed for by Eligible Bondholders divided by the Sub Debt Cash-Out Value,
is less than $200 million (the amount of such difference, an "Equity Election
Shortfall"), each Bondholder who validly made or is deemed to have made a Cash
Election shall be deemed (for all purposes of this Agreement) to have made (i)
an Equity Election with respect to an amount of such Bondholder's Sub Debt
Claims equal to the product of (A) the Equity Election Shortfall and (B) the
quotient of (I) the aggregate amount of Sub Debt Claims held of record as of
the Record Date by such Bondholder (either directly or through such
Bondholder's Holder Representative) over (II) the aggregate amount of Sub Debt
Claims held of record as of the Record Date by all Bondholders (either
directly or through their Holder Representatives) who validly made or have
been deemed to have made Cash Elections and (ii) a Cash Election with respect
to an amount of Sub Debt Claims equal to the aggregate amount of Sub Debt
Claims held of record as of the Record Date by such Bondholder (either
directly or through such Bondholder's Holder Representative) less the amount
in clause (i).
Section 2.2 Subscription Rights. (a) Each Record Date Bondholder that
validly makes an Equity Election, either directly or through such Bondholder's
Holder Representative (an "Eligible Bondholder"), shall have the right to
subscribe for Bondholder Class A Units (expressed throughout this Agreement in
dollar values) pursuant to a Cash-Out Subscription Right and a Make-Up
Subscription Right, in each case on the terms and conditions set forth in this
Section 2.2
(b) In addition to providing for Equity Elections, the
Election Form shall enable Eligible Bondholders to exercise their Subscription
Rights and shall include: (i) instructions for calculating an Eligible
Bondholder's Applicable Percentage; (ii) a good faith estimate of the amount
of the Equity Deficiency; (iii) rights for each Eligible Bondholder to
subscribe for (A) an amount of Cash-Out Class A Units equal to the product of
(I) such Eligible Bondholder's Applicable Percentage, (II) the aggregate
amount of the Cashed-Out Sub Debt and (III) the Sub Debt Cash-Out Value (a
"Cash-Out Subscription Right"), and (B) up to an aggregate amount of Make-Up
Class A Units equal to the Equity Deficiency (a "Make-Up Subscription Right").
All subscriptions described in this Section 2.2(b) will be made simultaneously
with the Closing. The foregoing rights shall by their terms remain open and
exercisable until 5:00 p.m., New York City time, on the Plan Voting Date (the
"Subscription Right Period").
(c) To the extent that the aggregate amount of the Make-Up
Class A Units subscribed for by the Eligible Bondholders pursuant to the
Make-Up Subscription Right exceeds the amount of the Equity Deficiency, each
such Eligible Bondholder's subscription amount pursuant to the Make-Up
Subscription Right shall be equal (for all purposes of this Agreement) to the
product of (i) the amount of the Equity Deficiency and (ii) the quotient of
(A) the aggregate amount of Sub Debt Claims held of record by such Bondholder,
either directly or through such Bondholder's Holder Representative, as of the
Record Date, over (B) the aggregate amount of Sub Debt Claims held by all
Eligible Bondholders, either directly or through their Holder Representatives,
as of the Record Date who elect to exercise the Make-Up Subscription Right.
(d) Each Eligible Bondholder shall have the option to
exercise the Cash-Out Subscription Right and Make-Up Subscription Right by
delivering a properly completed and duly executed Election Form to the Voting
Agent at its designated office prior to the expiration of the Subscription
Right Period. A Holder Representative may submit a separate Election Form for
each Eligible Bondholder for whom such holder acts as a nominee, trustee or in
another representative capacity.
(e) The Company shall, by no later than fifteen (15)
Business Days prior to the Closing Date (or such shorter period as may be
agreed by the Company and the Designated Representative), mail a notice (a
"Subscription Payment Notice") to each Eligible Bondholder, or such
Bondholder's Holder Representative, from whom the Company has received a
properly completed and duly executed Election Form exercising one or both
Subscription Rights setting forth: (i) the anticipated Closing Date; (ii) a
statement of the amount, if any, of Cash-Out Class A Units subscribed for by
such Bondholder pursuant to the Cash-Out Subscription Right; and (iii) a
statement of (A) the amount of the Equity Deficiency and (B) the amount, if
any, of Make-Up Class A Units subscribed for by such Bondholder pursuant to
the Make-Up Subscription Right. Each applicable Eligible Bondholder shall, by
no later than three (3) Business Days prior to the Closing Date (the
"Subscription Payment Deadline"), (x) with respect to any exercised Make-Up
Subscription Right, pay to the Exchange Agent an amount equal to the amount of
the Make-Up Class A Units specified in the Subscription Payment Notice, and
(y) with respect to an exercised Cash-Out Subscription Right, pay to the
Exchange Agent an amount equal to the amount of the Cash-Out Class A Units
specified in the Subscription Payment Notice. In the event that an Eligible
Bondholder's subscription payments shall not have been received by the
Exchange Agent prior to the Subscription Payment Deadline, such Bondholder's
Subscription Payment Notice shall be deemed to have been revoked for all
purposes of this Agreement.
(f) To the extent that less than all of the Bondholder Class
A Units subject to subscription pursuant to this Section 2.2 are subscribed
for by the Eligible Bondholders, the Pinnacle Equity Sponsors shall subscribe
for the remainder of such Bondholder Class A Units, which subscription shall
be made simultaneously with the Closing and shall otherwise be on the same
terms as the subscription rights provided to the Eligible Bondholders under
this Section 2.2, except for the time of payment. At Closing, the Pinnacle
Equity Sponsors shall, if applicable, (i) with respect to the amount by which
the Equity Deficiency exceeds payments received by the Exchange Agent in
respect of the Make-Up Class A Units pursuant to Section 2.2(e), invest the
amount of such excess in Pinnacle (by way of CEH LLC and Holding), (ii) with
respect to the amount by which the product of (A) the aggregate amount of the
Cashed Out Sub Debt and (B) the Sub Debt Cash-Out Value exceeds payments
received by the Exchange Agent in respect of Cash-Out Class A Units pursuant
to Section 2.2(e), invest the amount of such excess in Pinnacle (by way of CEH
LLC and Holding) and (iii) execute and deliver to the Exchange Agent a Trust
Accession Instrument with respect to such subscription.
3. Amendments to Article III.
(a) Section 3.6 is hereby amended to amend and restate in
their entirety the following defined terms:
"Actual Sub Debt Equity Value Per Dollar" equals the
quotient of (a) Actual Sub Debt Equity Value over (b) $400 million
plus the aggregate amount of accrued but unpaid interest on the Sub
Debt through and including December 7, 2003.
"Actual Sub Debt LLC Units" means with respect to any
Bondholder, a number of Class A Units equal to the quotient of (a)
the product of (i) the amount of Sub Debt Claims held by such Person
(either directly or through such Bondholder's Holder Representative)
for which an Equity Election has been made and (ii) the Actual Sub
Debt Equity Value Per Dollar over (b) the Class A Per Unit Value.
"Cashed-Out Sub Debt" means any Sub Debt Claims for which
no Equity Elections shall have been made or deemed to have been made
in accordance with Section 2.1 of this Agreement.
"Estimated Sub Debt Equity Value Per Dollar" equals the
quotient of (a) Estimated Sub Debt Equity Value over (b) $400 million
plus the aggregate amount of accrued but unpaid interest on the Sub
Debt through and including December 7, 2003.
"Estimated Sub Debt LLC Units" means, with respect to any
Bondholder, a number of Class A Units equal to the quotient of (a)
the product of (i) the amount of Sub Debt Claims held by such Person
(either directly or through such Bondholder's Holder Representative)
for which an Equity Election has been made (or deemed to have been
made) and (ii) and the Estimated Sub Debt Equity Value Per Dollar
over (b) the Class A Per Unit Value.
"Excluded Aurora Expenses" means (i) any amounts paid or
payable to Xxxxxxx Xxxxx & Co. pursuant to that certain Letter
Agreement, dated June 11, 2002, between the Company and Xxxxxxx Xxxxx
& Co., (ii) any amount included within the Employee Expense Amount,
other than the Bonus Accrual Items reflected on the Estimated Aurora
Balance Sheet or the Final Aurora Balance Sheet (as applicable),
(iii) the Derivative Amount, (iv) the Rejection Amount, (v) premiums
paid to maintain and/or procure directors' and officers' insurance
pursuant to Section 9.2(a) hereof up to a maximum of $2.7 million,
(vi) the Bank Fees, (vii) the Paid Default Interest accruing after
October 31, 2003, (viii) the Settlement Amount, (ix) amounts paid
under the Management Retention Plan, (x) the fee payable to the
Pinnacle Equity Sponsors and the fees and expenses payable to the
Pinnacle Equity Investors pursuant to Section 9.10 and (xi) Promotion
Expenses.
"Sub-Debt Cash-Out Value" equals $0.462.
"Sub Debt Cash Consideration" means, with respect to any
Bondholder, the product of (a) the amount of Sub Debt Claims held by
such Bondholder (either directly or through such Bondholder's Holder
Representative) for which no Equity Election has been made (or deemed
to have been made) and (b) the Sub Debt Cash-Out Value.
(b) Each of Sections 3.7 and 3.10 is hereby amended by
replacing the defined term "Sub Debt" in each instance in which it appears
within such section with the defined term "Sub Debt Claims".
(c) Section 3.8 is hereby amended and restated in its
entirety to read as follows:
Section 3.8 Payment.
(a) At the Closing, CEH LLC shall cause
the Reorganized Company and the Exchange Agent to:
(i) subject to Section 3.8(c),
with respect to each Bondholder holding Sub Debt Claims in respect of
which a Cash Election was made, upon receipt by the Voting Agent of a
properly completed and duly executed Election Form and duly executed
Form W-9 by the Plan Voting Deadline, and, with respect to each
Bondholder holding Sub Debt Claims in respect of which a Cash
Election was deemed to have been made, (x) upon receipt by the Voting
Agent of a properly completed and duly executed Election Form and
duly executed Form W-9 prior to the Closing or (y) upon receipt by
the Exchange Agent of a properly completed and duly executed Letter
of Transmittal and duly executed Form W-9, pay to such Bondholder an
amount equal to such Bondholder's Sub Debt Cash Consideration; and
(ii) subject to Section 3.8(c),
(x) with respect to each Bondholder holding Sub Debt Claims in
respect of which an Equity Election was validly made, upon receipt by
the Voting Agent of a properly completed and duly executed Election
Form, a duly executed Trust Accession Instrument, and a duly executed
Form W-9 by the Plan Voting Deadline, and (y) with respect to each
Bondholder holding Sub Debt Claims in respect of which an Equity
Election was deemed to have been made, upon, as applicable, (A)
receipt by the Voting Agent of a properly completed and duly executed
Election Form, a duly executed Trust Accession Instrument, and a duly
executed Form W-9 or (B) to the extent not previously received by the
Voting Agent, receipt by the Exchange Agent of a properly completed
and duly executed Letter of Transmittal, a duly executed Trust
Accession Instrument, and a duly executed Form W-9, issue to
Bondholder Trust, on behalf of such Bondholder, a number of Class A
Units equal to such Bondholder's Estimated Sub Debt LLC Units (and
promptly thereafter Bondholder Trust will issue a like number of
Bondholder Trust Interests to such Bondholder); and
(iii) subject to Section 3.8(c),
with respect to each Person who has validly subscribed for Cash-Out
Class A Units and/or Make-Up Class A Units and who has paid to the
Exchange Agent the amounts required in connection therewith as set
forth in Section 2.2(e), (x) if such Person is an Eligible
Bondholder, upon receipt by the Voting Agent of a properly completed
and duly executed Election Form, a duly executed Trust Accession
Instrument, and a duly executed Form W-9, or (y) if such Person is a
Pinnacle Equity Sponsor, upon receipt by the Exchange Agent of an
executed Trust Accession Instrument, issue to Bondholder Trust, on
behalf of such Person, a number of Class A Units equal to such
Person's Estimated Cash-Out LLC Units and Make-Up LLC Units (and
promptly thereafter Bondholder Trust will issue a like number of
Bondholder Trust Interests to such Person).
(b) Promptly after the Closing, CEH LLC
shall cause the Reorganized Company and the Exchange Agent to give
notice of the Closing to each Bondholder (either directly or through
such Bondholder's Holder Representative) (i) that was deemed to have
made an Equity Election under Section 2.1(d) and that did not deliver
to the Voting Agent a duly executed Trust Accession Instrument, a
duly executed Form W-9, and a properly completed and duly executed
Election Form and/or (ii) that was deemed to have made a Cash
Election and that did not deliver to the Exchange Agent a properly
completed and duly executed Letter of Transmittal and duly executed
Form W-9. Such notice shall (x) inform such Bondholders that were
deemed to have made a Cash Election with respect to all or any
portion of their Sub Debt Claims that, in order to obtain the funds
payable in respect of such deemed Cash Election, they must deliver to
the Exchange Agent a properly completed and duly executed Letter of
Transmittal and duly executed Form W-9 and (y) inform such
Bondholders that were deemed to have made an Equity Election with
respect to any portion of their Sub Debt Claims of the amount of Sub
Debt Claims with respect to which they have been deemed to have made
an Equity Election and that, in order to obtain the Bondholder Trust
Interests in respect of such deemed Equity Election, they must
deliver to the Exchange Agent a duly executed Trust Accession
Instrument, a duly executed Form W-9, and, if such Bondholder did not
deliver to the Voting Agent a properly completed and duly executed
Election Form, a properly completed and duly executed Letter of
Transmittal.
(c) Notwithstanding anything to the
contrary contained herein, CEH LLC shall not be obligated to cause
the Reorganized Company and the Exchange Agent to pay to any
Bondholder any Sub Debt Cash Consideration or issue to Bondholder
Trust in respect of any Bondholder any Estimated Sub Debt LLC Units
unless the Voting Agent or the Exchange Agent, as the case may be,
shall have received from DTC an Agent's Message as to such
Bondholder.
(d) With respect to dividends or other
distributions declared by CEH LLC on Class A Units, the record date
for which is at or after the Closing (an "Applicable Dividend"), all
Class A Units to be issued pursuant to this Section 3.8 shall be
deemed issued and outstanding as of the Closing and whenever such a
dividend or other distribution is declared by CEH LLC, that
declaration shall include dividends or other distributions in respect
of Class A Units issuable pursuant to this Section 3.8; provided,
that dividends or other distributions declared or made in respect of
Class A Units issuable pursuant to this Section 3.8 shall not be paid
to Bondholder Trust until such units have been issued to Bondholder
Trust as specified in Section 3.8(a). With respect to any Applicable
Dividend declared in respect of any Class A Units which are issued
pursuant to Section 3.8 subsequent to the declared distribution date
for such Applicable Dividend, CEH LLC shall pay such Applicable
Dividend to Bondholder Trust on behalf of the Person for whose
account such Class A Units were issued promptly following such
issuance.
(e) Each of the Reorganized Company and
CEH LLC shall be entitled to deduct and withhold from the cash
consideration otherwise payable to any Bondholder pursuant to this
Article III any amounts as they are required to deduct and withhold
with respect to payment under any provision of federal, state or
local income Tax law. If the Reorganized Company or CEH LLC, as the
case may be, so withholds amounts, such amounts shall be treated for
all purposes of this Agreement as having been paid to the Bondholders
in respect of which the Reorganized Company or CEH LLC, as the case
may be, made such deduction or withholding. No interest shall accrue
or be paid on any cash payable in respect of the Sub Debt Claims.
(f) The Exchange Agent shall, within five
Business Days after the date that is one year after the Closing Date,
return to the Reorganized Company any portion of the cash and/or LLC
Units remaining to be paid or distributed to Bondholders who have not
yet delivered or caused to be delivered (i) Election Forms, the
related Agent's Messages, Trust Accession Instruments and/or Form
W-9's (as applicable) to the Voting Agent, or (ii) Letters of
Transmittal, the related Agent's Messages, Trust Accession
Instruments and/or Form W-9's (as applicable) to the Exchange Agent,
as the case may be. Any Bondholders will thereafter be entitled to
look only to the Reorganized Company for satisfaction of their claims
for the consideration set forth in this Section 3.8, without
interest.
4. Amendment to Article IV. Section 4.2 (a) is hereby amended by
replacing in the first clause thereof the defined term "Sub Debt" with the
defined term "Sub Debt Claims".
5. Amendment to Article V. Section 5.2 (c) is hereby amended and
restated in its entirety to read as follows:
(c) At the Closing, (i) CEH LLC, Bondholder Trust and the
Reorganized Company shall enter into the Indemnity Agreement and (ii) Holding
and the Investors specified in the Registration Rights Agreement shall enter
into the Registration Rights Agreement.
6. Amendment to Article IX. The first paragraph of Section 9.1
is hereby amended to insert after the parenthetical phrase "(which consent
shall not be unreasonably withhold)" the following: "or in connection with the
promotion activities underlying the Promotion Expenses."
7. Amendment to Article X. Section 10.10 is hereby amended and
restated in its entirety to read as follows:
Section 10.10 No Activity. From and after the date hereof, Holding
shall not conduct any operations, or incur any liabilities or obligations
other than those described in Section 8.12 hereof; provided, that Holding (a)
may adopt an employee stock purchase plan providing for the issuance of up to
$5,000,000 in value in the aggregate of Holding's common stock (i) on or about
the Closing Date, to management employees of the Reorganized Company at a
price per share based on a $500 million equity value of the Reorganized
Company and (ii) thereafter to new management employees of the Reorganized
Company, as determined by the Board of Directors of Holding or the
Compensation Committee thereof, at a price per share equal to the fair market
value of a share of Holding's common stock as determined by the Board of
Directors of Holding, and (b) may amend its certificate of incorporation to
increase the number of its authorized shares of common stock in connection
therewith.
8. Amendments to Article XI.
(a) The following shall be inserted as a new Section
11.2(m):
(m) CEH LLC shall have received the Indemnity
Agreement, executed by Bondholder Trust.
(b) The following shall be inserted as a new Section
11.3(g):
(g) The Designated Representative shall have
received the Registration Rights Agreement, executed by
Holding and the Investors specified therein (other than
Bondholder Trust).
9. Registration Rights Agreement. A new Exhibit M is hereby
added to the Original Agreement in the form of Exhibit M hereto and the Exhibit
Index of the Original Agreement is hereby updated accordingly.
10. Certain Defined Terms. Section 14.1 is hereby amended to add
or amend and restate in their entirety, as applicable, the following defined
terms:
"Adjusted EBITDA" means (a) EBITDA of the Company for the
relevant period, as set forth in the Company Plan, less (b) amounts
expended from July 1, 2003 through the end of the relevant period for
marketing and other related expenses in respect of the introduction
by a competitor of the Company of new products consistent with the
marketing plan previously provided to CEH LLC which are in excess of
the amount of marketing and other related expenses set forth in the
Company Plan up to an aggregate amount of $2.9 million, less (c) the
Settlement Amount, less (d) Promotion Expenses.
"Agent's Message" means a message, transmitted by DTC to and
received by the Voting Agent or the Exchange Agent, as the case may
be, which states that DTC has made a book entry transfer reflecting
the tender of all Sub Debt with respect to which the applicable
Bondholder has made a Cash Election or Equity Election, or has been
deemed to have made such an election. The Agent's Message must
identify such Bondholder's account number at the DTC participant
through which such Bondholder holds its Sub Debt, as well as the
related transaction code number (if applicable).
"Applicable Dividend" has the meaning set forth in Section
3.8(d).
"Applicable Percentage" equals, for any Eligible Bondholder,
the quotient, as expressed as a percentage, of (a) the aggregate
amount of Sub Debt Claims in respect of Sub Debt held of record,
either directly or through such Bondholder's Holder Representative,
by such Eligible Bondholder as of the Record Date over (b) $400
million plus the aggregate amount of accrued but unpaid interest on
the Sub Debt through and including December 7, 2003.
"Business Day" means any day that is not a Saturday or a
Sunday or a day on which banks located in New York City are
authorized or required to be closed.
"DTC" means the Depository Trust Company.
"Election Form" means an election form to be distributed to
the Bondholders for purposes of (i) making an Equity Election and
(ii) exercising Subscription Rights, which shall be in a form
reasonably agreed upon by the Company, CEH LLC and the Designated
Representative.
"Promotion Expenses" means any amounts (up to an aggregate
amount of $5.4 million) paid with the approval of CDM in connection
with the promotion of the Company's seafood and syrup brands.
"Registration Rights Agreement" means a registration rights
agreement substantially in the form attached as Exhibit M hereto,
among Holding, Bondholder Trust and the Investors specified therein.
"Sub Debt Claims" means, as to any Bondholder, the principal
amount of Sub Debt held by such Bondholder, plus the aggregate amount
of accrued but unpaid interest on such Sub Debt through and including
December 7, 2003.
"Subscription Rights" has the meaning given in Section
1.1(b)(vi)(B).
11. Confirmation of Original Agreement. Except as expressly
modified by this Amendment, all provisions of the Original Agreement remain
unmodified and in full force and effect.
12. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of Delaware without giving
effect to conflicts of law principles thereof.
13. Counterparts. This Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each
of the parties and delivered to the other party.
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IN WITNESS WHEREOF, each of the undersigned has caused this Amendment
to be executed as of the date first above written.
AURORA FOODS INC.
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chairman and Interim Chief
Executive Officer
CRUNCH EQUITY HOLDING, LLC
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Authorized Signatory
