EXHIBIT 2.2
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.
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(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
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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
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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
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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:
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(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).
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(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
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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
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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:
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"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.
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"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
Exhibit M
FORM OF REGISTRATION RIGHTS AGREEMENT
