Exhibit 10.4
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
2
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;
3
(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;
4
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.
*********
5
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
