EXHIBIT 10.16
AMENDMENT NO. 1
TO
INDEMNIFICATION AGREEMENT
This Amendment No. 1 to Indemnification Agreement (this "Amendment") is
made as of the 25 of November, 2003 by and between Pinnacle Foods Holding
Corporation (the "Company" and C. Xxxx Xxxxxxxxxxx (the "Indemnitee").
WHEREAS, the Company and the Indemnitee have previously entered into that
certain Indemnification Agreement, dated the date thereof (the "Indemnification
Agreement");
WHEREAS, the Company, Crunch Holding Corp. ("Parent"), Crunch Acquisition
Corp. ("Merger Sub") and HMTF PF L.L.C., in its capacity as Representative, have
entered into an Agreement and Plan of Merger (the "Merger Agreement"), dated
August 8, 2003, pursuant to which it is contemplated that the Merger Sub will be
merged (the "Merger") with and into the Company, with the Company surviving the
Merger as a wholly-owned subsidiary of the Parent;
WHEREAS, capitalized terms used but not otherwise defined herein shall
have the respective meanings ascribed to them in the Merger Agreement;
WHEREAS, Section 5.6(d) of the Merger Agreement provides that, at the
Closing, the Company shall purchase, and thereafter maintain in effect, a six
year tail officers' and directors' liability insurance policy and a three year
tail fiduciary liability insurance policy providing officers' and directors'
liability insurance and fiduciary liability insurance covering the Indemnified
Persons with respect to matters or circumstances occurring at or prior to the
Effective Time; and
WHEREAS, Section 4.11 of the Merger Agreement provides that the Company
shall cause Section 10 of the Indemnification Agreement to be amended such that
the provisions thereof shall be consistent with the provisions set forth in
Section 5.6(d) of the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained herein, the parties hereby agree as follows:
1 Amendment. Section 10 of the Indemnification Agreement is hereby amended
in its entirety to read as follows:
"10. Liability Insurance. Except as otherwise agreed to by the
Company and Indemnitee in a written agreement, to the extent the Company
maintains an insurance policy or policies providing directors' and
officers' liability insurance, Indemnitee shall be covered by that policy
or those policies, in accordance with its or their terms, to the maximum
extent of the coverage available for any Company director or officer;
provided, however, that, from and after the Closing (as defined in that
certain Agreement and Plan of Merger, dated August 8, 2003, by and between
the Company, Crunch Holding Corp., Crunch Acquisition Corp. and HMTF PF,
L.L.C. (the "Merger Agreement")), the
Company shall have no greater obligation with respect to liability
insurance than as set forth in Section 5.6(d) of the Merger Agreement."
2 Indemnification Agreement Otherwise Unchanged. Except as set forth in
this Amendment, the Indemnification Agreement shall remain in full force and
effect in accordance with its terms. In the event of any conflict between the
provisions of this Amendment and the Indemnification Agreement, the provisions
of this Amendment shall control. 2.1.6
3 Governing Law . This Amendment shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in that state without giving effect to the
principles of conflicts of laws.
4 Counterparts. This Amendment may be executed in one or more counterparts
(including by facsimile transmission), each of which when so executed shall be
deemed an original, and all of such counterparts shall together constitute one
and the same agreement.
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IN WITNESS WHEREOF, the parties to this Amendment have executed this
Amendment as of the date first written above.
PINNACLE FOODS HOLDING CORPORATION
By: /S/ N. XXXXXXX XXXX
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Name: N. Xxxxxxx Xxxx
Title: Senior Vice President
INDEMNITEE
/S/ C. XXXX XXXXXXXXXXX
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C. XXXX XXXXXXXXXXX
