EXHIBIT 9.1
CRUNCH EQUITY VOTING TRUST
VOTING TRUST AGREEMENT
This VOTING TRUST AGREEMENT (this "Agreement"), dated as of March 18,
2004, by and among Kenneth Liang, Robert Webster and Soo Kim (in their
respective capacities as voting trustees, each a "Voting Trustee", and
collectively the "Voting Trustees"), Wilmington Trust Company, a Delaware
banking corporation (the "Resident Trustee"), the signatories to the Trust
Accession Instruments listed on Schedule I, as the same may be amended from time
to time (each a "Trust Holder" and collectively, the "Trust Holders"), Aurora
Foods Inc., a Delaware corporation ("Aurora") and Crunch Equity Holding, LLC, a
Delaware limited liability company ("CEH LLC"),
W I T N E S S E T H:
WHEREAS, CEH LLC and Aurora are party to the Agreement and Plan of
Reorganization and Merger, dated as of November 25, 2003, as amended (the
"Merger Agreement"), pursuant to which, subject to the terms and conditions set
forth in the Merger Agreement, Pinnacle Foods Corporation, an indirect wholly
owned subsidiary of CEH LLC, will merge with and into Aurora (the "Merger");
WHEREAS, pursuant to the Merger Agreement and in connection with the
Merger, any Bondholder (such term and other capitalized terms used and not
defined being used as defined in Article I) electing to receive equity in CEH
LLC or subscribing for such equity, and any Pinnacle Equity Sponsor subscribing
for such equity pursuant to Section 2.3(f) of the Merger Agreement, is required
to execute an instrument (a "Trust Accession Instrument") agreeing (i) to
deposit in the Delaware statutory trust created pursuant to this Agreement and
the Certificate of Trust (the "Trust") any Class A Units of CEH LLC that such
Person is or may become entitled to receive pursuant to Sections 3.8(a)(ii),
3.8(a)(iii), 3.8(c) or 4.2(a)(i) of the Merger Agreement and (ii) to be a party
to and bound by the terms and conditions of this Agreement, as the same may be
amended from time to time in accordance with its terms;
WHEREAS, at the Closing (as defined in the Merger Agreement), CEH LLC, the
Trust, the Pinnacle Equity Investors and/or their affiliates will enter into (i)
an Amended and Restated Operating Agreement of CEH LLC (as may be amended,
restated, modified or supplemented from time to time, the "Operating Agreement")
substantially in the form of Exhibit I to the Merger Agreement, (ii) an Amended
and Restated Members' Agreement of CEH LLC (as may be amended, restated,
modified or supplemented from time to time, the "Members Agreement")
substantially in the form of Exhibit H to the Merger Agreement, and (iii) a
Registration Rights Agreement (as may be amended, restated, modified or
supplemented from time to time, the "Registration Rights Agreement")
substantially in the form of Exhibit M to the Merger Agreement; and
WHEREAS, at the Closing (as defined in the Merger Agreement), Aurora, the
Trust and CEH LLC will enter into an Indemnity Agreement (as may be amended,
restated, modified or supplemented from time to time, the "Indemnity Agreement")
substantially in the form of Exhibit J to the Merger Agreement;
NOW, THEREFORE, a Delaware statutory trust is hereby created and
established with respect to the Voting Trust CEH Units, subject to the following
terms and conditions, to which each of the parties hereto expressly agrees as
follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings specified in this Article I:
"Account" has the meaning given in Section 3.01(a) of this Agreement.
"Affiliate" means, with respect to any Person, (a) a director or executive
officer of such Person, (b) any other Person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, such Person, and (c) any Family Vehicle or Family Member of
such Person or of any of the Persons described in clause (a) or (b). For the
purposes of this definition, the term "controls", "is controlled by" or "under
common control with" means (i) the direct or indirect ownership of in excess of
50% of the equity interests (or interests convertible into or otherwise
exchangeable for equity interests) in a Person, or (ii) possession of the
Securities carrying the direct or indirect right to vote in excess of 50% of the
voting Securities or elect in excess of 50% of the Board of Directors or other
governing body of a Person (whether by Securities ownership, contract or
otherwise).
"Aurora" has the meaning given in the Recitals to this Agreement.
"Board" has the meaning given in Section 4.01(a) of this Agreement.
"Bondholder" means, immediately prior to the consummation of the Merger,
any beneficial owner of Aurora's 9 7/8% Senior Subordinated Notes due 2007,
Aurora's 9 7/8% Series C Senior Subordinated Notes due 2007 and Aurora's 8 3/4%
Senior Subordinated Notes due 2008.
"Capital Call" has the meaning given in Section 9.01 of this Agreement.
"Cash Payment" has the meaning given in Section 4.03(c)(i) of this
Agreement.
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"Certificate of Trust" has the meaning given in Section 2.01(a) of this
Agreement.
"Chairman" has the meaning given in Section 4.01 of this Agreement.
"Claim" has the meaning given in the Indemnity Agreement.
"Class A Units" means the Class A Units of CEH LLC.
"Code" means the U.S. Internal Revenue Code of 1986, as amended from time
to time.
"Confidential Information" has the meaning given in Section 4.06(b) of
this Agreement.
"Control" means, including, with correlative meaning, the terms
"controlling," "controlled by" and "under common control with", with respect to
any Person, the possession, directly or indirectly, of the power to direct or
cause the direction of the management, policies or investment decisions of such
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Controlled Affiliates" means, with respect to any Person, any (i)
director, officer, limited or general partner, member or stockholder holding 5%
or more of the outstanding capital stock or other equity interests of such
Person, and (ii) any other Person that, directly or indirectly, through one or
more intermediaries, is Controlled by such Person.
"Correct Recipient" has the meaning given in Section 10.04 of this
Agreement.
"Correction Requesting Trust Holder" has the meaning given in Section
10.04 of this Agreement.
"Co-Sale Notice" has the meaning given in Section 3.4 of the Members
Agreement.
"Co-Sale Rights" means the rights of the Trust pursuant to Section 3.4 of
the Members Agreement.
"Default Trust Units" has the meaning given in Section 9.02(b) of this
Agreement.
"Defaulting Holder" has the meaning given in Section 9.02(b) of this
Agreement.
"Electing Trust Holders" has the meaning given in Section 4.03(c)(ii) of
this Agreement.
"Expiration Date" has the meaning given in the Indemnity Agreement.
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"Family Member" means, with respect to any individual, each of such
individual's spouse, former spouse(s), siblings, ancestors and lineal
descendants and the lineal descendants of such individual's spouse, former
spouse(s) or siblings (in each case, whether natural or adopted).
"Family Vehicle" means, with respect to any individual, a partnership,
trust or other estate planning vehicle established for the exclusive benefit of
such individual and/or one or more of such individual's Family Members.
"Forfeited Trust Units" has the meaning given in Section 9.06 of this
Agreement.
"Form K-1" has the meaning given in Section 4.08(b) of this Agreement.
"High Offer" has the meaning given in Section 10.02(b) of this Agreement.
"Indemnified Liabilities" has the meaning given in Section 7.03(b) of this
Agreement.
"Indemnitees" has the meaning given in Section 7.03(b) of this Agreement.
"Indemnity Agreement" has the meaning given in the Recitals to this
Agreement.
"Indemnity Subscription Date" has the meaning given in Section 4.03(c)(ii)
of this Agreement.
"Indemnity Subscription Right" has the meaning given in Section
4.03(c)(ii) of this Agreement.
"Indirect Offer" has the meaning given in Section 10.02 of this Agreement.
"Indirect Offer Acceptance" has the meaning given in Section 10.02(b) of
this Agreement.
"Indirect Offer Period" has the meaning given in Section 10.02(a) of this
Agreement.
"Indirect Offered Units" has the meaning given in Section 10.02(a) of this
Agreement.
"Indirect Offer Request" has the meaning given in Section 10.02(a) of this
Agreement.
"Indirect Offerees" has the meaning given in Section 10.02(a) of this
Agreement.
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"Investors" means the Persons designated on the signatures pages of the
Members Agreement as "Investors" and any Transferee of such Persons.
"LIBOR" means, as of the date on which any Trust Holder Loan is made, the
London inter-bank offering rate for deposits in U.S dollars for a twelve-month
period provided by the Telerate Service or any other service that displays such
rate and published by the British Bankers' Association at 11:00 AM (London
time), which rate shall be adjusted annually with respect to any Trust Holder
Loan on the anniversary of the date on which such loan was made or the first
business day thereafter.
"Managers" has the meaning given in Section 4.06(a) of this Agreement.
"Member" has the meaning given in Section 4.06(a) of this Agreement.
"Members Agreement" has the meaning given in the Recitals to this
Agreement.
"Merger" has the meaning given in the Recitals to this Agreement.
"Merger Agreement" has the meaning given in the Recitals to this
Agreement.
"Non-Electing Trust Holders" has the meaning given in Section 4.03(c)(ii)
of this Agreement.
"Notional Trust Unit Value" has the meaning given in Section 9.02(a) of
this Agreement.
"Objection Notice" has the meaning given in the Indemnity Agreement.
"Operating Agreement" has the meaning given in the Recitals to this
Agreement.
"Payment Date" has the meaning given in Section 9.02(a) of this Agreement.
"Permitted Excluded Transfer" means (a) in the case of any Trust Holder
who is an individual, (x) a Transfer of Trust Units to a trust for the benefit
of such Trust Holder's estate (including the executor or personal representative
of such estate, as applicable), or (y) a Transfer of Trust Units made for no
consideration to any Affiliate of such Trust Holder; (b) in the case of any
Trust Holder that is a partnership, (x) a Transfer of Trust Units to its
limited, special and general partners as a bona fide pro rata distribution by
such partnership to all of its partners based on the equity holdings of each and
made in accordance with the organizational documents of such partnership as in
effect on the date hereof, (y) a Transfer of Trust Units made for no
consideration to any Affiliate of such Trust Holder or for no consideration
(other than for bona fide services rendered or to be rendered) to any employee
or consultant of such Trust Holder or any of its Affiliates or (z) a Transfer of
Trust Units made to a controlled Affiliate (other than any
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portfolio company of any pooled investment vehicle) in connection with a bona
fide reallocation or transfer of Trust Units to a fund managed by such Trust
Holder's Affiliates, including by means of participation, and in each case not
for purposes of circumventing the provisions of Section 10.02 with respect to
such Transfer; (c) in the case of any Trust Holder that is a corporation or a
limited liability company, (x) a Transfer of Trust Units to its stockholders or
members, as the case may be, as a bona fide pro rata distribution by such
corporation or limited liability company to all of its stockholders or members,
as the case may be, based on the equity holdings of each and made in accordance
with the organizational documents of such corporation or limited liability
company as in effect on the date hereof, (y) a Transfer made for no
consideration to any Affiliate of such Trust Holder or for no consideration
(other than for bona fide services rendered or to be rendered) to any employee
or consultant of such Trust Holder or its Affiliates or (z) a Transfer of Trust
Units made to a controlled Affiliate (other than any portfolio company of any
pooled investment vehicle) in connection with a bona fide reallocation or
transfer of Trust Units to a fund managed by such Trust Holder's Affiliates,
including by means of participation, and in each case not for purposes of
circumventing the provisions of Section 10.02 with respect to such Transfer; (d)
a Transfer of Trust Units that may be deemed to have occurred pursuant to
Section 4.03(c), Section 9.03(c) or Section 9.06 of this Agreement; (e) a
Transfer of Units held by Bondholder Trust from the account of a Trust Holder to
the account of any other Trust Holder pursuant to Section 4.03(c), Section
9.03(c) or Section 9.06 of this Agreement; or (f) a Transfer of Trust Units
pursuant to Section 10.04 of this Agreement.
"Person" means any individual, firm, corporation, limited liability
company, partnership, company, trust or other entity, and shall include any
successor (by merger or otherwise) of such entity.
"Pinnacle Equity Investors" means the Pinnacle Equity Sponsors and CDM
Investor Group LLC.
"Pinnacle Equity Sponsors" means the JPMP Holder and the JWC Holder, as
each such term is defined in the Members Agreement.
"Preemptive Rights" means the rights of the Trust pursuant to Section 3.5
of the Members Agreement.
"Preemptive Rights Offer" has the meaning given in Section 3.5 of the
Members Agreement.
"Purchase Units" has the meaning given in Section 9.03(c) of this
Agreement.
"Registration Rights Agreement" has the meaning given in the Recitals to
this Agreement.
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"Representatives" has the meaning given in Section 4.06(a) of this
Agreement.
"Resident Trustee" has the meaning given in the Recitals to this
Agreement.
"Retained Units" has the meaning given in the Indemnity Agreement.
"Securities" means any form of common or preferred equity of any Person,
including the Units (including warrants, rights, put and call options and other
options relating thereto or any combination thereof), notes, bonds, debentures,
trust receipts and other obligations, instruments or evidences of indebtedness,
choices in action, other property or interests commonly regarded as securities,
interests in real property, whether improved or unimproved, and interests in
personal property of all kinds, tangible or intangible (including cash and bank
deposits).
"Statutory Trust Act" has the meaning given in Section 2.01(a) of this
Agreement.
"Supplemental Subscription Amount" has the meaning given in Section
9.03(b) of this Agreement.
"Supplemental Subscription Notice" has the meaning given in Section
9.03(a) of this Agreement.
"Transfer" means, as to any Security or asset (the "Subject Property"), to
sell, directly or indirectly, or in any other way, directly or indirectly
transfer, assign, gift, pledge, grant a security interest in, distribute,
encumber or otherwise dispose of (including, without limitation, the foreclosure
or other acquisition by any lender with respect to Subject Property pledged to
such lender by the holder of the Subject Property), whether directly or
indirectly (including, without limitation, by means of a Transfer of any
Security issued by a Person that holds, directly or indirectly, an interest in
the Subject Property), such Subject Property, either voluntarily or
involuntarily and with or without consideration.
"Transferee" means any Person to whom a Member shall Transfer Units in
accordance with the terms of the Members Agreement.
"Transferor" has the meaning given in Section 10.02(a).
"Treasury Regulations" means the regulations of the U.S. Treasury
Department issued pursuant to the Code.
"Trust" has the meaning given in the Recitals to this Agreement.
"Trust Accession Instrument" has the meaning given in the Recitals to this
Agreement.
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"Trust Holder" has the meaning given in the Recitals to this Agreement.
"Trust Holder Loan" has the meaning given in Section 7.01 of this
Agreement.
"Trust Holder Obligation" has the meaning given in Section 4.03(c)(i) of
this Agreement.
"Trust Unit" has the meaning given in Section 3.01(a) of this Agreement.
"Units" means all Units issued by CEH LLC held at any time during the term
of the Members Agreement by an Investor or any party to the Members Agreement
other than an Investor or CEH LLC, and shall also include any equity security
issued in respect of or in exchange for Units, whether by way of dividend or
other distribution, split, recapitalization, merger, rollup transaction,
consolidation, conversion or reorganization.
"Unpaid Indemnity Amount" has the meaning given in Section 4.03(c)(ii) of
this Agreement.
"Voting Trust CEH Units" shall mean any Class A Units held by the Trust.
"Voting Trustee" has the meaning given in the Recitals to this Agreement.
ARTICLE II
THE TRUST
Section 2.01 Purpose; Appointment of Trustees; Name.
(a) The purpose of the Trust is to hold the Voting Trust CEH Units
pursuant to the terms of this Agreement. The Trust's assets shall consist
exclusively of securities of CEH LLC, and the Trust shall not engage in any
trading, investment or similar activity with respect to Class A Units or other
securities or conduct any other business except as expressly provided for
herein. The parties hereto intend that the Trust constitute a Delaware statutory
trust formed under the provisions of the Delaware Statutory Trust Act, 12 Del.
C. Sections 3801 et seq., as amended from time to time (the "Statutory Trust
Act"), and the Resident Trustee and the Voting Trustees are hereby directed to
execute and file the Certificate of Trust attached hereto as Exhibit A (the
"Certificate of Trust").
(b) The parties hereby appoint Kenneth Liang, Robert Webster and Soo Kim
as Voting Trustees of the Trust, effective as of the date hereof, to have all
the rights, powers and duties set forth herein. The Voting Trustees accept the
Trust on the terms set forth herein and agree that they shall act only in
accordance with the terms of this Agreement and shall not engage in any activity
or perform any act except in pursuit of the
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foregoing purpose and any activity that is necessary or incidental to the
foregoing purpose.
(c) The parties hereby appoint Wilmington Trust Company as Resident
Trustee of the Trust, effective as of the date hereof. The Resident Trustee
shall be a trustee of the Trust for the sole and exclusive purpose of satisfying
the requirements of Section 3807 of the Statutory Trust Act and shall have no
powers or duties hereunder other than to execute the Certificate of Trust on the
date hereof, to deliver promptly to the Voting Trustees any notices that the
Resident Trustee may receive in connection with this Agreement or the Trust, and
such other duties as may be provided for by agreement with the Resident Trustee.
(d) The name of the Trust shall be the Crunch Equity Voting Trust, in
which name the Voting Trustees may carry out the purposes of the Trust, execute
instruments, and sue and be sued.
Section 2.02 Filing. The Board shall file a copy of this Agreement (and
any amendments hereto) in the registered office of CEH LLC in the State of
Delaware, which copy shall be open for inspection to any Trust Holder.
ARTICLE III
TRUST UNITS
Section 3.01 Trust Accounts and Trust Units.
(a) The Board shall establish and maintain for each Trust Holder an
account (each, an "Account") recording the number of Voting Trust CEH Units held
by the Trust on behalf of such Trust Holder. Each Trust Holder shall hold one
unit of beneficial interest in the Trust (a "Trust Unit") for each Voting Trust
CEH Unit held by the Trust on behalf of such Trust Holder.
(b) Until such time as the first Class A Units of CEH LLC are deposited
into the Trust, Kenneth Liang shall be deemed to be the sole beneficial owner of
the Trust (within the meaning of the Statutory Trust Act). At such time as the
first Class A Units are deposited into the Trust, Kenneth Liang shall
immediately cease to be a beneficial owner of the Trust (within the meaning of
the Statutory Trust Act) and shall be deemed withdrawn from the Trust in
exchange for no consideration. Thereafter, as and when Class A Units are
deposited into the Trust, the applicable Trust Holder shall be deemed admitted
to the Trust in respect of the number of Trust Units calculated in accordance
with Section 3.01(a). To the extent adjustments are made to a Trust Holder's
Account from time to time in accordance with this Agreement, such Trust Holder
shall be deemed admitted to the Trust in respect of any additional Trust Units
acquired and shall be
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deemed withdrawn from the Trust in respect of any Trust Units Transferred,
surrendered or forfeited, all with no further act being required on the part of
any Person (other than the adjustment to such Trust Holder's Account by the
Board). For the avoidance of doubt, each Trust Holder is a beneficial owner of
the Trust for purposes of the Statutory Trust Act.
Section 3.02 Delivery and Cancellation of Voting Trust CEH Units Pursuant
to Merger Agreement.
(a) CEH LLC shall deliver to the Trust the Voting Trust CEH Units that
the Trust Holders are or become entitled to receive pursuant to Sections
3.8(a)(ii), 3.8(a)(iii), 3.8(d) or 4.2(a)(i) of the Merger Agreement, which the
Board shall record as having been received for such Trust Holder's Account.
(b) In the event any Voting Trust CEH Units held by the Trust on behalf
of a Trust Holder are cancelled pursuant Section 4.2(a)(ii) of the Merger
Agreement, (i) the Board shall cancel an equal number of the Trust Units held by
such Trust Holder and (ii) the Board shall make appropriate entries on the
Trust's books and records to cause such Trust Holder's Account to reflect the
cancellation of such Voting Trust CEH Units.
ARTICLE IV
BOARD OF TRUSTEES
Section 4.01 Voting Trustees.
(a) Board of Trustees. The Trust shall have a board of trustees (the
"Board"), the members of which shall be the Voting Trustees. The signatures of a
majority of the Voting Trustees then holding such position shall be necessary to
bind the Trust; provided that the Board may authorize a single Voting Trustee
pursuant to Section 4.01(b) hereof to execute agreements, certificates and other
instruments on behalf of the Trust.
(b) Board Actions. The Board may act at a meeting held either in person,
telephonically, or by other electronic means by which all of the participating
Voting Trustees can hear each other. A meeting of the Board may be convened by
any Voting Trustee on twenty-four hours' notice if notice is given to each
Voting Trustee personally or by telephone or other electronic means, including a
voice messaging system or e-mail, or on five days' notice if notice is mailed to
each Voting Trustee at his or her usual place of business or such other address
as any Voting Trustee may request by notice to the other Voting Trustees. A
majority of the Voting Trustees then holding such position shall be considered a
quorum for the conduct of business at any meeting of the Board. Any action or
determination of the Board hereunder shall be made if authorized by a majority
of the Voting Trustees then holding such position at any meeting at which a
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quorum is present, or by the unanimous consent of the Voting Trustees expressed
in writing or by electronic transmission. The Board may delegate to any Voting
Trustee any or all of the powers and authorities of the Board hereunder, as
determined by the Board in its sole discretion.
(c) Chairman. Kenneth Liang shall initially be the chairman of the
Voting Trustees (the "Chairman"). The Chairman shall preside over meetings of
the Board at which he or she is present, and shall have no other duties except
as may be delegated by the Board. The Chairman may be removed and a successor
appointed, and in the event of the Chairman's death or resignation a successor
shall be appointed, from among the Voting Trustees by means of a writing
executed by at least a majority of all issued and outstanding Trust Units.
Section 4.02 Management of the Trust. The Board shall, in its sole
discretion and without the requirement of any prior instruction from or
consultation with the Trust Holders, exercise all rights and cause the Trust to
perform all obligations of the Trust and shall take all such other actions as
may be necessary or appropriate to fulfill the purposes of the Trust, including,
without limitation, (a) the exercise, enforcement or waiver of the rights and
the performance of the duties and obligations of the Designated Representative
under the Merger Agreement (including pursuant to Article IV thereof), (b) the
exercise, enforcement or waiver of the rights and the performance of the duties
and obligations of the Trust under the Indemnity Agreement (including causing
the Trust to defend or settle any claims arising out of or in relation to the
Indemnity Agreement) and (c) the exercise, enforcement or waiver of the rights
and the performance of the duties and obligations of the Trust under the Members
Agreement and the Operating Agreement; provided, however, that, with respect to
the matters set forth in Section 4.03 of this Agreement, the Board shall act in
accordance with applicable instructions received from the Trust Holders except
to the extent such section otherwise permits or requires. Except as expressly
required by Section 4.03 of this Agreement, the Board shall have no obligation
to obtain the approval of or instructions from the Trust Holders in carrying out
its duties under this Agreement.
Section 4.03 Trust Holder Instructions.
(a) Co-Sale Rights.
(i) If the Trust receives a Co-Sale Notice pursuant to Section 3.4
of the Members Agreement, the Board shall seek instructions by notice to
the Trust Holders as to whether any Trust Holder wishes to participate in
the contemplated sale and the number of eligible Voting Trust CEH Units
held by the Trust on behalf of each Trust Holder to be included in such
sale. If the Board has not received instructions from a Trust Holder by
the date specified by the Board in
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such notice, such Trust Holder shall be deemed to have instructed the
Board that it does not wish to participate in the proposed sale.
(ii) The Board shall take such steps as may be necessary or
appropriate in the judgment of the Board to enforce the timely received
instructions of the Trust Holders with respect to any Co-Sale Notice;
provided, that the Board may waive (including before seeking instructions
from the Trust Holders pursuant to Section 4.03(a)(i)) the Co-Sale Rights
of the Trust with respect to all (but not less than all) of the Voting
Trust CEH Units held by the Trust on behalf of the Trust Holders (other
than the Pinnacle Equity Sponsors and their affiliates) electing to
participate in such sale if the Board determines, acting in its sole
discretion, that such action is in the best interests of the Trust
Holders, collectively, or the Trust.
(iii) The Board shall promptly remit the proceeds of any sale of
Voting Trust CEH Units pursuant to this Section 4.03(a) to the applicable
Trust Holder, and shall cancel that number of Trust Units held by such
Trust Holder equal to the number of Voting Trust CEH Units sold that were
held by the Trust on behalf of such Trust Holder.
(b) Preemptive Rights.
(i) If the Trust receives a Preemptive Rights Offer pursuant to
Section 3.5 of the Members Agreement, the Board shall seek instructions by
notice to the Trust Holders as to whether any Trust Holder wishes to
participate in the contemplated offering and the number of Voting Trust
CEH Units for which such Trust Holder wishes to have the Trust subscribe
on behalf of such Trust Holder. If the Board has not received instructions
from a Trust Holder by the date specified by the Board in such notice,
such Trust Holder shall be deemed to have instructed the Board that it
does not wish to participate in the proposed offering.
(ii) The Board shall take such steps as may be necessary or
appropriate in the judgment of the Board to enforce the timely received
instructions of the Trust Holders with respect to any Preemptive Rights
Offer; provided, that the Board may waive (including before seeking
instructions from the Trust Holders pursuant to Section 4.03(b)(i)) the
Preemptive Rights of the Trust with respect to any or all of the Voting
Trust CEH Units held by the Trust on behalf of the Trust Holders (other
than the Pinnacle Equity Sponsors and their affiliates) electing to
participate in such offering if (x) the Board determines, acting in its
sole discretion, that such action is necessary or appropriate to ensure
compliance with federal and state securities laws and regulations, or (y)
the Board determines, acting in its sole discretion, and CEH LLC agrees,
that such action is in the best interests of the Trust Holders,
collectively, or the Trust and CEH LLC.
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(iii) Each Trust Holder opting to participate in a Preemptive Rights
Offer shall remit, to an account designated by the Trust, the payment due
from such Trust Holder in connection with such offering by a date, prior
to closing of the issuance of the New Units (as defined in the Members
Agreement), specified by the Board by notice to the participating Trust
Holders. The Trust shall issue to each Trust Holder participating in such
offering one new Trust Unit for each Voting Trust CEH Unit received from
CEH LLC on behalf of such Trust Holder in connection with the Preemptive
Rights Offer.
(iv) If consented to in writing by Trust Holders representing at
least a majority of the issued and outstanding Trust Units, the Board may
waive (including before seeking instructions from the Trust Holders
pursuant to Section 4.03(b)(i)) the Preemptive Rights of the Trust with
respect to all of the Voting Trust CEH Units held by the Trust on behalf
of the Trust Holders electing to participate in such offering.
(c) Indemnification.
(i) If an obligation arises pursuant to Section 4(a)(iv) or 4(c) of
the Indemnity Agreement for the Trust to transfer Class A Units to CEH LLC
for cancellation, the Board shall promptly seek instructions by notice to
the Trust Holders as to whether any Trust Holder wishes to elect instead
to fund all or a portion of such Trust Holder's pro rata share of such
obligation by making a cash payment consistent with Section 4(b) of the
Indemnity Agreement (a "Cash Payment"). Such notice shall specify (w) the
total amount of the obligation, (x) the amount of such Trust Holder's pro
rata portion of such obligation based on the number of Trust Units held by
such Trust Holder (the "Trust Holder Obligation"), (y) the number of
Voting Trust CEH Units held by the Trust on behalf of such Trust Holder
(valued at $1,000 per unit) that are subject to cancellation in connection
with such obligation pursuant to the Indemnity Agreement and (z) the date
by which any Cash Payment must be remitted to an account designated by the
Trust. If a Trust Holder fails to remit any Cash Payment by the deadline
specified by the Board, such Trust Holder shall be deemed to have
instructed the Board that it does not wish to elect to make any Cash
Payment.
(ii) If any Trust Holders do not elect, or are deemed not to have
elected, to make a Cash Payment with respect to the entire amount of their
Trust Holder Obligation (the "Non-Electing Trust Holders"), the other
Trust Holders (the "Electing Trust Holders"), if any, shall have the right
(the "Indemnity Subscription Right") to subscribe for Trust Units equal in
value (valued at $1,000 per Trust Unit) to the aggregate amount of Trust
Holder Obligations with respect to which Cash Payment has not been elected
or has been deemed not to have been
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elected (the "Unpaid Indemnity Amount"). The Board shall, in such event,
give notice to the Electing Trust Holders specifying (x) the Unpaid
Indemnity Amount and the number of Trust Units available for subscription
in connection therewith and (y) the date by which Electing Trust Holders
must respond (the "Indemnity Subscription Date"). If the Board receives
timely requests from the Electing Trust Holders to subscribe for a greater
number of Trust Units under the Indemnity Subscription Right than are
available, the Board shall allocate the Trust Units available for
subscription among the Electing Trust Holders electing to participate
proportionately in accordance with the number of Trust Units held by each
of them.
(iii) Following the Indemnity Subscription Date, the Board shall
give notice to each participating Electing Trust Holder of (x) the number
of Trust Units subscribed for by such Trust Holder pursuant to the
Indemnity Subscription Right, (y) the amount due to the Trust from such
Trust Holder in respect of such subscription and (z) the date by which
payment must be made to an account designated by the Board.
(iv) Upon timely receipt of payment in connection with the Indemnity
Subscription Right, the Trust shall (x) issue to each applicable Electing
Trust Holder the number of Trust Units subscribed for in connection with
the Indemnity Subscription Right, (y) cancel an equal number of the Trust
Units held by the applicable Non-Electing Trust Holders, and (z) transfer
to the Account of such applicable Trust Holder from the Account of the
applicable Non-Electing Trust Holder or holders an equal number of Voting
Trust CEH Units.
(v) If, following the date by which payment must be made to an
account designated by the Trust in connection with the Indemnity
Subscription Right (or, in the event the Board determines pursuant to
Section 4.03(c)(vi) that there shall be no Indemnity Subscription Right,
following the date by which Cash Payment must be remitted to the Trust
pursuant to Section 4.03(c)(i)), the Trust Holders have not paid to the
account designated by the Board cash equal to the total amount of the Cash
Payment due to CEH LLC in respect of the obligation incurred pursuant to
the Indemnity Agreement, the Board shall (x) cause the Trust to comply
with its obligations pursuant to Section 4(a)(iv) or 4(c) of the Indemnity
Agreement by transferring the applicable number of Voting Trust CEH Units
from the respective Accounts of the Non-Electing Trust Holders and (y)
cancel an equal number of the Trust Units held by such Non-Electing Trust
Holders.
(vi) Notwithstanding the foregoing provisions of this Section
4.03(c), the Board may, in its sole discretion, elect to modify the
procedures set forth herein so that either (A) (x) the initial notice to
Trust Holders pursuant to Section
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4.03(c)(i) includes an offer to subscribe for all or any portion of any
Unpaid Indemnity Amount and (y) the procedures set forth in Section
4.03(c)(ii)-(iv) are commensurately modified or (B) Electing Trust Holders
do not have the opportunity to exercise an Indemnity Subscription Right.
(d) Actions Requiring Trust Holder Consent. The Board shall not take or
consent to any of the following actions without first receiving the written
consent of Trust Holders representing at least a majority of the issued and
outstanding Trust Units:
(i) any material amendment to the Members Agreement, the Operating
Agreement, the Registration Rights Agreement or the Indemnity Agreement;
(ii) the delivery of a written notice to CEH LLC requiring CEH LLC
to commence using its best efforts to consummate an IPO, pursuant to
Section 3.13 of the Members Agreement;
(iii) the exercise of the Call Option (as defined in the Members
Agreement) pursuant to Section 3.7 of the Members Agreement;
(iv) the nomination or removal of any Bondholder Manager (as defined
in the Members Agreement), following the appointment of the initial
Bondholder Managers, provided, however, that the Board may, in its sole
discretion, designate one or more persons to serve as Bondholder Managers
on an interim basis pending the receipt of consent from the Trust Holders
pursuant to this Section 4.03(d); and
(v) the approval of any JPMP Manager or JWC Manager (as such terms
are defined in the Members Agreement) pursuant to Section 2.1(b)(v) of the
Members Agreement, following the approval of the initial JPMP Manager and
JWC Manager pursuant to such section.
Section 4.04 No Action Except Under Agreement or Instructions. The Board
agrees that it will not manage, control, use, sell, pledge, encumber, dispose of
or otherwise take any action with respect to the Voting Trust CEH Units, except
as permitted or required by the terms of this Agreement.
Section 4.05 Power and Authority. The Board shall have all requisite
power, authority and discretion as shall be necessary or appropriate to enable
it to take all such actions as it may be required to take pursuant to this
Agreement.
Section 4.06 Information Rights; Confidentiality. The Board shall transmit
to the Trust Holders all information received pursuant to Section 3.11 of the
Members Agreement, it being understood and agreed by each Trust Holder that any
such
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information that is Confidential Information will be provided subject to the
following confidentiality provisions in accordance with Section 21 of the
Operating Agreement:
(a) Each of the Trust Holders shall, and shall direct those of its
directors, officers, partners, members, employees, attorneys, accountants,
trustees, consultants, affiliates and advisors (the "Representatives") who have
access to Confidential Information to, keep confidential and not disclose any
Confidential Information without the express consent, in the case of
Confidential Information acquired from CEH LLC, of the Board of Managers of CEH
LLC (the "Managers"), or, in the case of Confidential Information which concerns
a Member of CEH LLC (a "Member"), such Member, unless:
(i) such disclosure shall be required by applicable law,
governmental rule or regulation, court order, administrative or arbitral
proceeding or by any bank or insurance regulatory authority having
jurisdiction over such Trust Holder;
(ii) such disclosure is reasonably required in connection with any
tax audit involving CEH LLC or any Member or Trust Holder;
(iii) such disclosure is reasonably required in connection with any
litigation against or involving CEH LLC or any Member or Trust Holder;
(iv) such disclosure is reasonably required in connection with any
proposed Transfer of all or any part of a Trust Holder's interest or a
participation in the Trust; provided, that with respect to the use of any
Confidential Information in any proposed Transfer, any proposed transferee
shall have entered into a confidentiality agreement with terms
substantially similar to the terms of this Section 4.06.
Notwithstanding the foregoing, (i) any Trust Holder may disclose to other
Persons the amount of its investment in the Trust and (ii) any Trust Holder may
disclose Confidential Information to its financial or investment advisors;
provided, that any such advisor shall have entered into a confidentiality
agreement with terms substantially similar to the terms of this Section 4.06.
Confidential Information may be used by a Trust Holder and its Representatives
only in connection with CEH LLC and Trust matters and in connection with the
maintenance of the Trust Holder's interest in the Trust.
(b) For purposes of this Section 4.06, "Confidential Information" shall
mean any information related to the activities of CEH LLC, the Managers or any
Member and their respective Affiliates that a Trust Holder may acquire from the
Trust, CEH LLC, the Managers, any entity in which CEH LLC invests or any Member,
other than information that (i) is already available through publicly available
sources of information (other than as a result of disclosure by such Trust
Holder in violation of this Section 4.06), (ii) was
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available to a Trust Holder on a non-confidential basis prior to its disclosure
to such Trust Holder by CEH LLC or the Trust; or (iii) becomes available to a
Trust Holder on a non-confidential basis from a third party; provided, that such
third party is not known by such Trust Holder to be bound by this Agreement or
another confidentiality agreement with CEH LLC or any entity in which CEH LLC
invests. Such Confidential Information may include, without limitation,
information that pertains or relates to (A) the business and affairs of any
Member, (B) any investment or proposed investment of CEH LLC or (C) any other
CEH LLC matters.
(c) If any Trust Holder or any Representative of such Trust Holder is
required to disclose any of the Confidential Information pursuant to Sections
4.06(a)(i)-(iv) hereof, such Trust Holder will use commercially reasonable
efforts to provide CEH LLC with prompt written notice so that CEH LLC may seek a
protective order or other appropriate remedy and/or waive compliance with the
provisions of this Agreement, and such Trust Holder will use commercially
reasonable efforts to cooperate with CEH LLC, at the expense of Aurora, in any
effort any such Person undertakes to obtain a protective order or other remedy.
If such protective order or other remedy is not obtained, or CEH LLC waives
compliance with the provisions of this Section 4.06, such Trust Holder and its
Representatives will furnish only that portion of the Confidential Information
which is required and will exercise all reasonable efforts to obtain reasonably
reliable assurance that the Confidential Information will be accorded
confidential treatment.
(d) CEH LLC may agree to waive, with the prior approval of the Managers,
any or all of the provisions of this Section 4.06. For avoidance of doubt, CEH
LLC may enforce the terms of this Section 4.06 without the consent of any other
party.
Section 4.07 Board Notice. The Board shall maintain with the books and
records of the Trust copies of any material notices it receives under this
Agreement.
Section 4.08 Tax Matters.
(a) Partnership for Tax Purposes. The Trust shall be classified as a
partnership for U.S. federal income tax purposes and shall not elect to be
treated as an association taxable as a corporation for U.S. federal, state or
local income tax purposes under Treasury Regulations section 301.7701-3(a) or
under any corresponding provision of state or local law. The Trust shall not
participate in the establishment of an "established securities market" (within
the meaning of section 1.7704-1(b) of the Treasury Regulations) or a "secondary
market or the substantial equivalent thereof" (within the meaning of section
1.7704-1(c) of the Treasury Regulations) or, in either case, the inclusion of
interests in the Trust thereon. The Board shall be authorized to take all
actions that may be necessary or advisable for the continuation of the Trust's
classification as a partnership for U.S. federal income tax purposes.
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(b) Tax Information. CEH LLC shall provide to the Board a U.S. Internal
Revenue Service Schedule K-1, "Partner's Share of Income, Credits, Deductions,
Etc.", or the applicable successor schedule or form (a "Form K-1") with respect
to the Class A Units held by the Trust (i) for each calendar year for which CEH
LLC has no taxable income to report, by no later than March 1 of the following
calendar year (ii) for each calendar year for which CEH LLC has taxable income
to report, by no later than March 1 of the following calendar year if
practicable and, if not practicable, then as soon as practicable thereafter;
provided that if CEH LLC shall not have provided a Form K-1 to the Board by
March 1 of any calendar year, CEH LLC shall provide the Trust's accountants with
access to such information as may be necessary for the Board to cause Form K-1's
for the Trust Holders to be prepared simultaneously with the preparation of the
Form K-1's to be provided to the Investors (as defined in the Members
Agreement). The Resident Trustee shall, at the instruction of the Board,
distribute to each Trust Holder a Form K-1 with respect to such Trust Holder's
ownership of Trust Units. The Board shall cause all necessary tax returns and
filings to be prepared and filed in respect of the Trust.
(c) Tax Matters Partner. OCM Opportunities Fund III, L.P., a Trust
Holder, is hereby designated as the tax matters partner of the Trust (the "Tax
Matters Partner"), in accordance with the Treasury Regulations promulgated
pursuant to section 6231 of the Code and any similar provisions under any other
state or local or non-U.S. tax laws. Each Trust Holder hereby consents to such
designation and agrees that, upon the request of the Tax Matters Partner, it
will execute, certify, acknowledge, deliver, swear to, file and record at the
appropriate public offices such documents as may be necessary or appropriate to
evidence such consent. The Tax Matters Partner may be removed and a successor
appointed, and in the event of the Tax Matters Partner's resignation a successor
shall be appointed, by means of a writing executed by at least a majority of all
issued and outstanding Trust Units. The Tax Matters Partner, including any
successor appointed pursuant to this Section 4.08(c), shall at all times be a
Trust Holder, and the Tax Matters Partner shall immediately resign from such
position if such Person ceases to be a Trust Holder.
ARTICLE V
TERMINATION OF TRUST AGREEMENT
This Agreement and the trust created hereby shall terminate solely upon
the occurrence of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of CEH LLC or at such time (following the deposit of
the first Class A Units into the Trust) as the Trust ceases to hold any Class A
Units. The bankruptcy or incapacity of one or more than one Trust Holder or
Voting Trustee or the Resident Trustee shall not operate to terminate this
Agreement, or entitle the Trust Holders to take any action or
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proceeding in any court for a partition or winding up of the Trust, or otherwise
affect the rights, obligations and liabilities of the parties hereto. Upon the
termination of the Trust, the Board shall comply with Section 3808(e) of the
Statutory Trust Act (giving first priority to the repayment of any Trust Holder
Loan, with any valuation required to effect such priority to be determined in
the sole discretion of the Board) and thereafter shall cause the remaining
Voting Trust CEH Units held by the Trust to be distributed to the Trust Holders
pro rata based on their respective holdings of Trust Units, and this Agreement
shall be of no further force or effect.
ARTICLE VI
TRUSTEE SUCCESSION
Section 6.01 Resignation of Trustees; Appointment of Successor.
(a) A Voting Trustee and/or the Resident Trustee may resign at any time
without cause by giving at least 60 days' prior written notice to the Trust
Holders, such resignation to be effective on the acceptance of appointment by a
successor Voting Trustee or Resident Trustee, as the case may be, under Section
6.01(b) hereof. In the case of the resignation or death of a Voting Trustee, the
remaining two Voting Trustees shall appoint a successor Voting Trustee. In the
event the remaining two Voting Trustees cannot agree on a successor or there is
more than one vacant Voting Trustee position, a successor Voting Trustee or
Voting Trustees shall be appointed by means of a writing executed by at least a
majority of all issued and outstanding Trust Units. In case of a resignation of
the Resident Trustee, the Board shall appoint a successor Resident Trustee. In
the event the Trust Holders, the Voting Trustees or the Board, as applicable,
fail to appoint a successor Voting Trustee or Resident Trustee (under either
this Section 6.01(a) or Section 6.02), the Voting Trustee or the Resident
Trustee, as the case may be, seeking to resign from such position may apply to a
court of competent jurisdiction for the appointment of a successor (meeting, in
the case of a successor Resident Trustee, the standards set forth in Section
6.01(c)) to act until such time, if any, as a successor shall have been
appointed by the Trust Holders, the Voting Trustees or the Board, as applicable.
(b) Any successor Voting Trustee or Resident Trustee shall execute and
deliver to their respective predecessor an instrument accepting such
appointment, and thereupon such successor Voting Trustee or Resident Trustee, as
applicable, without further act, shall become vested with all the estates,
properties, rights, powers and duties of the predecessor Voting Trustee or
Resident Trustee in the Trust hereunder with like effect as if originally named
a Voting Trustee or the Resident Trustee herein; but nevertheless, upon the
written request of such successor Voting Trustee or Resident Trustee, such
predecessor Voting Trustee or Resident Trustee shall execute and deliver
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an instrument transferring to such successor Voting Trustee or Resident Trustee,
upon the Trust herein expressed, all the estates, properties, rights, powers and
duties of such predecessor Voting Trustee or Resident Trustee, and such
predecessor Voting Trustee or Resident Trustee shall duly assign, transfer,
deliver and pay over to such successor Voting Trustee or Resident Trustee all
other property then held or subsequently received by such predecessor Voting
Trustee or Resident Trustee upon the Trust herein expressed.
(c) Any successor Resident Trustee (i) shall be a bank or trust company
incorporated under the laws of the United States or any state thereof, having a
combined capital and surplus of at least US$50,000,000, and rated at least "A-3"
(or the then equivalent grade) by Moody's Investor Service, Inc. or "A-" (or the
then equivalent grade) by Standard & Poor's Rating Group, in each case at the
time of appointment and (ii) shall satisfy the requirements of Section 3807 of
the Statutory Trust Act.
(d) Any corporation into which a Voting Trustee or the Resident Trustee
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which a
Voting Trustee or the Resident Trustee shall be a party, or any corporation to
which all or substantially all the corporate trust business of a Voting Trustee
or the Resident Trustee may be transferred, shall be a Voting Trustee or the
Resident Trustee, as the case may be, under this Agreement without further act;
provided, however, that, with respect to the Resident Trustee, if such resulting
corporation does not conform to the requirements of Section 6.01(c), such
Resident Trustee, shall give notice of resignation pursuant to Section 6.01(a)
effective upon such merger, conversion or consolidation.
Section 6.02 Removal of Voting Trustee or Resident Trustee. Trust Holders
holding a majority of the Trust Units may, acting by written consent, remove a
Voting Trustee for any reason, with or without cause, and appoint a successor
Voting Trustee. The Resident Trustee may be removed by the Board upon the sole
discretion of the Board. Any removal of a Voting Trustee or the Resident Trustee
shall be effective on the acceptance of appointment by a successor Voting
Trustee or Resident Trustee under Section 6.01(b). Upon acceptance in writing by
a successor Voting Trustee or Resident Trustee of the appointment as Voting
Trustee or Resident Trustee hereunder, such successor Voting Trustee or Resident
Trustee, as the case may be, shall succeed to and become vested with all of the
rights, powers, privileges and duties of the removed Voting Trustee or Resident
Trustee, as the case may be. Upon such acceptance, the removed Voting Trustee or
Resident Trustee shall be discharged from further responsibilities under this
Agreement.
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ARTICLE VII
EXPENSES; LIABILITY AND INDEMNIFICATION OF THE TRUSTEES
Section 7.01 Trust Expenses. Aurora shall reimburse the Trust or pay on
its behalf all reasonable fees and expenses incurred by the Trust, the Voting
Trustees, the Board or the Resident Trustee hereunder (upon presentment by the
Trust of applicable invoices or, in the case of fees or expenses to be paid in
advance, upon presentment of an estimate of such charges), including, without
limitation, the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as the Voting Trustees, the Board
or the Resident Trustee may employ in connection with the exercise and
performance of their respective rights and duties under this Agreement and any
interest expenses incurred in connection with a Trust Holder Loan (so long as
the fees or expenses of the Trust with respect to which such loan was made are
otherwise reimbursable by Aurora hereunder); provided, however, that Aurora
shall not be required to reimburse the Trust for (a) fees or expenses which
would typically be borne by a securityholder of any entity, including, but not
limited to, fees or expenses typically borne by a securityholder in respect of a
transfer of securities (such as underwriters' discounts or commissions) or fees
or expenses (such as transfer taxes) arising from any such transfers, (b) any
other fees related to transfers of securities (except for fees and expenses of
the Board, the Voting Trustees, the Resident Trustee or other similar
administrative fees or expenses), (c) any fees or expenses arising from
activities which are not related to the Trust's primary function as an interim
holding entity for Class A Units for the benefit of the Trust Holders or (d) any
fees or expenses of the Trust arising out of a dispute between Aurora and the
Trust as to the validity of a Claim with respect to which an Objection Notice
has been given to Aurora pursuant to Section 4(a)(iii) of the Indemnity
Agreement. A Trust Holder may, if requested by the Board, loan funds to the
Trust in respect of the Trust's fees and expenses on reasonable market terms
agreed between the Board, in its sole discretion, and such Trust Holder (a
"Trust Holder Loan"); provided that the interest due to a Trust Holder pursuant
to any Trust Holder Loan shall not exceed LIBOR plus 7%, compounded annually.
The repayment of any Trust Holder Loan shall have priority in the event of any
distribution by or liquidation of the Trust. No Trust Holder shall be obligated,
in the absence of any separate agreement with respect to a Trust Holder Loan, to
make a Trust Holder Loan.
Section 7.02 Compensation.
(a) The following fees shall be paid in advance by Aurora to the
applicable recipient, the fees for services to be rendered in the first year
after the date hereof to be paid on the Closing Date (as defined in the Merger
Agreement) and fees for services to be rendered in the following years to be
paid on each subsequent anniversary of the Closing:
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(i) the Chairman shall receive compensation for services rendered
hereunder an annual fee of $193,500 for the first year and $45,000 for
each year thereafter;
(ii) each of the other two Voting Trustees shall receive as
compensation for services rendered hereunder an annual fee of $50,000 for
the first year and $25,000 for each year thereafter; and
(iii) the Resident Trustee shall receive compensation for rendering
those services specifically enumerated herein and any other services
specified in a separate agreement to be concluded between the Trust and
the Resident Trustee, including, with respect to its services specified
herein or in such agreement as those of the Resident Trustee, an annual
fee of $6,500 for the first year and $5,000 for each year thereafter, or
such other fee as may be agreed from time to time by the Resident Trustee,
CEH LLC and the Trust; provided that the cost of any administrative or
other services rendered by Wilmington Trust Company not as Resident
Trustee or another service provider to the Trust (including, without
limitation, for communications with Trust Holders and other administrative
services in connection with the duties of the Board pursuant to Sections
3.01, 4.03, 4.06 and 11.01 and Articles V, VIII, IX and X hereof and the
attorney fees and disbursements of any service provider), shall be
expenses of the Trust to be reimbursed by Aurora pursuant to Section 7.01
hereof.
Section 7.03 Liability and Indemnification.
(a) Limitation of Liability.
(i) The Voting Trustees and the Resident Trustee shall have no
liability to the Trust, the Trust Holders, CEH LLC, Aurora or any other
Person for or in respect of any action taken or omitted to be taken as
Voting Trustee or Resident Trustee, respectively, or as required or
permitted by this Agreement, provided that such action was taken or
omitted to be taken in good faith.
(ii) The Voting Trustees and the Resident Trustee shall incur no
liability to the Trust, the Trust Holders, CEH LLC, Aurora or any other
Person for or in respect of any action taken or omitted to be taken in
reliance upon any notice, direction, consent, certificate, affidavit,
statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by or on behalf of any of the
parties hereto.
(iii) The Voting Trustees, the Board and the Resident Trustee shall
be obligated to perform such duties and only such duties as are herein
specifically set forth, and no implied duties or obligations shall be read
into this Agreement. The
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Voting Trustees, the Board and the Resident Trustee shall not be under any
obligation to take any action hereunder which may tend to involve the
Trust in any expense or liability the payment of which within a reasonable
time is not, in the Voting Trustees', the Board's or the Resident
Trustee's reasonable opinion, as applicable, assured to the Trust.
(iv) The provisions of this Agreement, to the extent they restrict
or extend the duties and liabilities of a Voting Trustee and the Resident
Trustee under any applicable law or in equity are agreed by the parties
hereto to replace such other duties and liabilities of such Voting Trustee
and the Resident Trustee.
(b) Indemnification. Aurora and CEH LLC hereby agree jointly and
severally to indemnify, defend, exonerate and hold each Voting Trustee and the
Resident Trustee and each of their Controlled Affiliates, directors, officers,
fiduciaries, employees, attorneys and agents and each of the partners,
shareholders, directors, officers, fiduciaries, employees, attorneys and agents
of each of the foregoing (collectively, the "Indemnitees") free and harmless
from and against any and all actions, causes of action, suits, losses,
liabilities and damages, taxes, expenses and disbursements, including, without
limitation, reasonably attorneys' fees and expenses (collectively, the
"Indemnified Liabilities"), incurred by the Indemnitees or any of them as a
result of, or arising out of, or relating to the execution, delivery,
performance, enforcement or existence of this Agreement, the administration of
the Trust or the action or inaction of any Voting Trustee or the Resident
Trustee hereunder (including, without limitation, any indemnification assumed or
incurred by any Indemnitee to or on behalf of any Voting Trustee or the Resident
Trustee, or their respective accountants or other representatives, agents or
Controlled Affiliates) except for any such Indemnified Liability arising due to
such Indemnitee's failure to act in good faith, and if and to the extent that
the foregoing undertaking may be unenforceable for any reason, Aurora and CEH
LLC shall jointly and severally make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.
ARTICLE VIII
DISTRIBUTIONS
Section 8.01 Ordinary Distributions. Following the repayment first of any
Trust Holder Loan and then the payment of any unpaid expenses or other
obligations of the Trust, the Board shall distribute to the Trust Holders:
(a) any dividends or other distributions made by CEH LLC with respect to
CEH Voting Trust Units to Trust Holders pro rata based on their respective
holdings of Trust Units; provided, however, that any dividends of Class A Units
shall be retained by
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the Trust and credited pro rata to the Accounts of the Trust Holders, and an
equivalent number of Trust Units shall be issued to the respective Trust
Holders; and
(b) any excess funds raised pursuant to a Capital Call proportionately
among the Trust Holders who were not Defaulting Holders in such Capital Call,
based on such Trust Holders' respective holdings of Trust Units.
Section 8.02 Special Distribution. On the Expiration Date, the Trust shall
distribute to each of the Pinnacle Equity Sponsors and each of their respective
affiliates that is a Trust Holder that number of Class A Units held by the Trust
equal to the number of Trust Units held by such Person, and the Trust shall
cancel all of the Trust Units held by such Person in redemption of such Trust
Holder's Trust Units; provided, however, that if on the Expiration Date any
Retained Units remain subject to the terms of the Indemnity Agreement pursuant
to Section 4(c) thereof, then (x) the Trust shall distribute to each of the
Pinnacle Equity Sponsors and each of their respective affiliates that is a Trust
Holder that number of Class A Units held by the Trust equal to the number of
Trust Units held by such Person less such Person's proportionate share of the
Retained Units (based on such Person's percentage holding of the total number of
issued and outstanding Trust Units immediately prior to the distribution
pursuant to this clause (x)), and the Trust shall cancel a number of the Trust
Units held by such Person equal to the number of Class A Units that were
distributed to such Person pursuant to this clause (x) in redemption of such
Trust Holder's Trust Units and (y) on the date on which there are no Retained
Units subject to the terms of the Indemnity Agreement pursuant to Section 4(c)
thereof, the Trust shall distribute to each of the Pinnacle Equity Sponsors and
their respective affiliates that is a Trust Holder that number of Class A Units
held by the Trust equal to the number of Trust Units held by such Person, and
the Trust shall cancel all of the Trust Units held by such Person in redemption
of such Trust Holder's Trust Units.
Section 8.03 Distribution Instructions. Trust Holders shall provide the
Board, upon request, with written instructions designating the account to which
such dividends, distributions or special distributions shall be transferred.
ARTICLE IX
CAPITAL CALLS
Section 9.01 Capital Calls. In the event any claim, expense or any other
financial obligation should arise in connection with or in relation to the Trust
which is not reimbursed or paid by Aurora pursuant to Section 7.01 of this
Agreement or by a third party, the Board may, at its sole discretion, determine
that it is necessary or appropriate to raise additional capital in order to meet
such claim, expense or obligation by way of a capital call to all Trust Holders
(a "Capital Call").
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Section 9.02 Capital Call Notices; Defaulting Holders.
(a) In the event of a Capital Call, the Board shall give notice (the
"Capital Call Notice") to each Trust Holder of (i) the reasons such Capital Call
is being made, (ii) the total amount of required capital and how such amount is
calculated, (iii) the amount of such Trust Holder's pro rata portion of such
Capital Call based on the number of Trust Units held by such Trust Holder, (iv)
the notional value of one Voting Trust Unit (the "Notional Trust Unit Value")
for purposes of such Capital Call and (v) the date payment is due in connection
with such Capital Call (the "Payment Date") and instructions for payment. The
Notional Trust Unit Value shall be the lower of (x) $1,000 per Trust Unit or (y)
the fair market value of one Trust Unit as determined by a third party appraiser
appointed by the Board at Aurora's expense.
(b) Each Trust Holder that does not make payment by the Payment Date of
all or any portion of such Trust Holder's pro rata share of such Capital Call
shall be deemed to be in default (a "Defaulting Holder") with respect to that
number of Trust Units held by such Trust Holder equal in value (valued at the
Notional Trust Unit Value) to the amount of such Trust Holder's pro rata portion
of such Capital Call not funded by such Trust Holder (the "Default Trust
Units").
Section 9.03 Supplemental Subscription.
(a) If there shall have been any Defaulting Holders in response to a
Capital Call Notice, the Board shall give notice (the "Supplemental Subscription
Notice") to each Trust Holder other than the Defaulting Holders that (i) the
Default Trust Units are available for subscription and (ii) the date by which
such Trust Holders must specify the number of such units for which they wish to
subscribe. If, in response to a Supplemental Subscription Notice, the Board
receives subscription requests for a number of Trust Units greater than the
number of Default Trust Units, the Board shall allocate the Default Trust Units
proportionately among the Trust Holders electing to participate in such
supplemental subscription in accordance with the number of Trust Units held by
each of them.
(b) Promptly following the receipt of subscription requests pursuant to
a Supplemental Subscription Notice, the Board shall give notice to each
participating Trust Holder of (i) the number of Default Trust Units for which
such holder has subscribed, (ii) the payment owed with respect to such
subscription (the "Supplemental Subscription Amount") and (iii) the date payment
is due and instructions for payment.
(c) Upon receipt of the Supplemental Subscription Amount from a
participating Trust Holder, the Trust shall (i) issue to such Trust Holder the
number of Trust Units subscribed for in response to the Supplemental
Subscription Notice and cancel an equal number of Trust Units held by the
applicable Defaulting Holder or
25
holders and (ii) transfer to the Account of such Trust Holder from the Account
of the applicable Defaulting Holder or holders an equal number of Voting Trust
CEH Units (the "Purchased Units").
Section 9.04 Modified Procedures. Notwithstanding the foregoing provisions
of this Article IX, the Board may, in its sole discretion, elect to modify the
procedures set forth herein so that either (a) (i) the Capital Call Notice
includes an offer to subscribe for all or any portion of any Default Trust Units
and (ii) the procedures set forth in Section 9.03 are commensurately modified or
(b) Trust Holders do not have the opportunity to subscribe for any Default Trust
Units.
Section 9.05 Payment Obligations in Case of a Defaulting Holder.
(a) Notwithstanding any other provision of this Article IX, each Trust
Holder shall have an obligation to pay such Trust Holder's pro rata share of any
Capital Call. The Board shall have the right to pursue, on behalf of the Trust,
all remedies at law or in equity available to it with respect to any Defaulting
Holder. Each Defaulting Holder shall pay on demand all costs and expenses
(including reasonable attorneys' fees) incurred by or on behalf of the Trust in
connection with the enforcement of this Agreement against such Defaulting Holder
sustained as a result of such default by such Trust Holder, and any such payment
shall not constitute a capital contribution to the Trust.
(b) If there is a Defaulting Holder in any Capital Call, the Board may
by notice to the other Trust Holders increase the capital contributions that are
required from the other Trust Holders, any such increase to be allocated among
the Trust Holders that are not Defaulting Holders proportionately in accordance
with the number of Trust Units held by each of them.
Section 9.06 Forfeiture of Trust Units. Each Defaulting Holder shall, for
each Capital Call Notice with respect to which such Defaulting Holder does not
make full payment of such Trust Holder's pro rata portion of the Capital Call by
the Payment Date, forfeit that number of Trust Units (the "Forfeited Trust
Units") equal to the greater of (a) 50% of such Defaulting Holder's Trust Units
prior to such Capital Call Notice and (b) that number of Trust Units (valued at
the Notional Trust Unit Value) equal to 125% of such Defaulting Holder's pro
rata portion of such Capital Call specified in the Capital Call Notice, in each
case less the number of any Purchased Units already transferred to other Trust
Holders pursuant to Section 9.03(c). The Trust shall cancel such Forfeited Trust
Units. The Trust shall transfer to the Accounts of the non-defaulting Trust
Holders from the Accounts of the Defaulting Holders a number of Voting Trust CEH
Units equal to the number of Forfeited Trust Units, allocating such number of
Voting Trust CEH Units proportionately among the non-defaulting Trust Holders
based on their respective
26
holdings of Trust Units, and the Trust shall issue to each such non-defaulting
Trust Holder an equivalent number of Trust Units.
Section 9.07 No Interest or Withdrawal. No Trust Holder shall be entitled
to receive any interest on any funding made to the Trust in relation to a
Capital Call, nor shall any Trust Holder be entitled to withdraw any funding or
portion thereof in relation to a Capital Call by the Trust.
Section 9.08 No Third Party Beneficiary. The provisions of this Article IX
are intended solely to benefit the Trust and the Trust Holders and, to the
fullest extent permitted by applicable law, shall not be construed as conferring
any benefit upon any creditor of the Trust (and no such creditor shall be a
third party beneficiary of this Agreement), and no Trust Holder shall have any
duty or obligation to any creditor of the Trust to make any contributions to the
Trust pursuant to this Article IX or any other provision of this Agreement.
ARTICLE X
RESTRICTIONS ON TRANSFER OF TRUST UNITS
Section 10.01 General. No Trust Holder shall Transfer any Trust Units
except (a) in connection with a Permitted Excluded Transfer, (b) pursuant to the
Co-Sale Rights set forth in Section 3.4 of the Members Agreement, (c) after
complying with the right of first offer provisions set forth in Section 10.02
below, (d) in accordance with the terms of the Indemnity Agreement and Section
4.03(c) hereof, (e) in respect of Forfeited Trust Units or Default Trust Units
in accordance with the terms of Article IX hereof, (f) in respect of the
Indemnity Subscription Right in accordance with the terms of Section 4.03(c)
hereof or (g) in connection with a request from a Correction Requesting Trust
Holder pursuant to Section 10.04 hereof. Each Trust Holder hereby acknowledges
that such Trust Holder has been informed of the transfer restrictions placed on
Trust Units by this Agreement and the Members Agreement, and each Trust Holder
hereby agrees that such holder will comply with such restrictions in all
respects. Each Trust Holder shall prohibit, and agrees not to recognize on its
books, any Transfers of Trust Units, including, without limitation, any indirect
Transfers of Trust Units, in violation of the provisions of this Agreement. Any
attempted Transfer of Trust Units not in accordance with this Section 10.01
shall not be effective and shall be void.
Section 10.02 Right of First Offer. If any Trust Holder (each such Trust
Holder, an "Indirect Offeror") proposes to Transfer Trust Units to any Person
other than (u) in connection with a Permitted Excluded Transfer, (v) pursuant to
the exercise of the Co-Sale Rights set forth in Section 3.4 of the Members
Agreement, (w) in accordance with the terms of the Indemnity Agreement and
Section 4.03(c) hereof, (x) in respect of
27
Forfeited Trust Units or Default Trust Units in accordance with the terms of
Article IX hereof, (y) in respect of the Indemnity Subscription Right in
accordance with the terms of Section 4.03(c) hereof or (z) in connection with a
request from a Correction Requesting Trust Holder pursuant to Section 10.04
hereof, then the following procedures shall be followed in accordance with this
Agreement and the Members Agreement:
(a) The Indirect Offeror shall, before such Transfer, deliver to CEH LLC
and the Investors (other than the Trust) (the "Indirect Offerees") a written
request for an offer (the "Indirect Offer Request") to purchase the Trust Units
that the Indirect Offeror proposes to Transfer (the "Indirect Offered Units").
Each Indirect Offeree shall have the right and option to notify the Indirect
Offeror, in a writing (the "Indirect Offer") delivered within three (3) Business
Days after the date of its receipt of the Indirect Offer, of its offer to
purchase all, but not less than all, of the Indirect Offered Units at the cash
purchase price and on the terms and conditions stated in the Indirect Offer.
Each Indirect Offer shall remain open and irrevocable for a period of five (5)
Business Days from the date of its receipt by the Indirect Offeror (the
"Indirect Offer Period").
(b) If one or more Indirect Offers have been timely received, then the
Indirect Offeror shall have the right and option to accept the Indirect Offer
containing the highest offered purchase price and/or most favorable other terms
and conditions, as determined by the Indirect Offeror in good faith (the "High
Offer"), which may reflect discussions between the Indirect Offeree and the
Indirect Offeror, by so notifying the applicable Indirect Offeree in a writing
(the "Indirect Offer Acceptance"), with copies to CEH LLC and the Trust,
delivered prior to the expiration of the Indirect Offer Period; provided, that
if more than one Indirect Offer offers the same purchase price and other terms
and conditions and each such offer is a High Offer, then the Indirect Offeror,
if choosing to accept any Indirect Offer, shall accept any High Offer made by
CEH LLC, and, if no High Offer has been made by CEH LLC, shall have the right
and option to accept any of the High Offers.
(c) Within 15 days of receipt by the Trust of the copy of the Indirect
Offer Acceptance and in lieu of the Indirect Offeror Transferring the Indirect
Offered Units, the Trust shall Transfer to CEH LLC or the other Indirect
Offeree, as the case may be, against receipt of payment therefor, Class A Units
of CEH LLC in an amount corresponding to the Indirect Offered Units that CEH LLC
or the other Indirect Offeree agreed to purchase. Delivery of certificates or
other instruments evidencing Class A Units of CEH LLC in an amount corresponding
to the Indirect Offered Units duly endorsed for transfer and free and clear of
all liens, claims and other encumbrances (other than those arising hereunder and
those attributable to actions by the purchasers thereof) shall be made on such
date against payment in cash of the purchase price therefor. At such closing,
all of the parties to the transaction shall execute such additional documents as
are otherwise necessary or appropriate. The Trust shall promptly use the
proceeds received by it at such closing to redeem the Indirect Offered Units.
28
(d) If an Indirect Offer has not been timely delivered, or if an
Indirect Offer Acceptance has not been timely delivered, then the Indirect
Offeror may Transfer to any Person all, but not less than all, of the Trust
Units that were subject to the Indirect Offer Request on terms and conditions no
more favorable to such Person than are described in a timely received Indirect
Offer (or, if more than one, in the High Offer), for a period of 60 days after
expiration of the Indirect Offer Period. If such Transfer is not made within
such 60-day period, the provisions of this Section 10.02 shall again become
effective with respect to the proposed Transfer.
Section 10.03 Additional Transfer Restrictions.
(a) A Trust Holder wishing to Transfer its Trust Units (the
"Transferor") shall bear all costs and expenses incurred by the Trust in
connection with such Transfer not reimbursed or paid by Aurora pursuant to
Section 7.01 hereof, and such Trust Holder shall remit appropriate funds to the
Trust at the request of the Board.
(b) No Transfer of Trust Units by any Trust Holder shall become
effective (i) unless prior written notice thereof has been delivered to the
Trust, (ii) unless such Transfer complies with this Article X and (iii) unless
and until the proposed transferee (unless already a party to this Agreement)
executes and delivers a Trust Accession Instrument and agrees to be treated as a
Trust Holder hereunder, whereupon the Board shall cause Schedule I hereto to be
amended to reflect such Transfer.
(c) Notwithstanding any other provision of this Agreement, and except as
provided in Section 10.04 hereof, Trust Units may not be Transferred:
(i) unless such Transfer (w) would not be effected on or through any
established securities market in the U.S., (x) would not be effected on or
through a secondary market in the U.S. or the substantial equivalent
thereof or such transfer is a "block transfer" within the meaning of
Section 1.7704-1(e)(2) of the Treasury Regulations, (y) would not result
in the Trust at any time during its taxable year having more than 100
Trust Holders and (z) would not cause the Trust to be subject to Section
12(g) or 15(d) of the Securities Exchange Act of 1934;
(ii) if, in the sole judgment of the Board, such Transfer would
increase the risk that (x) the Trust would be treated as a publicly traded
partnership for U.S. federal income tax purposes or (y) the Trust would be
subject to Section 12(g) or 15(d) of the Securities Exchange Act of 1934;
and
(iii) unless each Transferor provides (x) representations to the
Trust to the effect that none of the events listed in Section 10.03(c)(i)
will occur as a result of the proposed Transfer, and (y) if requested by
the Board in its sole discretion,
29
an opinion of counsel, in form and substance reasonably satisfactory to
the Board, that such transaction would be consistent with such
representations.
Section 10.04 Erroneous Issuances. If a Trust Holder (a "Correction
Requesting Trust Holder") gives notice to the Trust that all or a portion of the
Trust Units issued to such Trust Holder pursuant to the Merger were incorrectly
issued to such Trust Holder rather than to another Person (a "Correct
Recipient") (i) as a result of an improperly recorded or unrecorded transfer
occurring prior to the close of business on February 20, 2004 of Aurora's 9 7/8%
Senior Subordinated Notes due 2007, Aurora's 9 7/8% Series C Senior Subordinated
Notes due 2007 or Aurora's 8 3/4% Senior Subordinated Notes due 2008 or (ii) for
any other reason acceptable to CEH LLC, the Board shall have the authority,
after reviewing such documentation as the Board may deem proper and which shall
be reasonably satisfactory to CEH LLC, to cancel the applicable number of Trust
Units held by the Correction Requesting Trust Holder, issue an equal number of
Trust Units to the Correct Recipient and transfer from the Account of the
Correction Requesting Trust Holder to the Account of the Correct Recipient an
equal number of Voting Trust CEH Units.
ARTICLE XI
MISCELLANEOUS
Section 11.01 Amendments. Ministerial modifications to this Agreement that
do not materially alter its terms may be made by the Board without the consent
of any other party hereto, so long as such modifications do not adversely affect
in any material respect any Trust Holder's rights under this Agreement. Except
as specifically set forth herein, any other amendments, waivers or other
modifications to this Agreement shall not be valid unless consented to in
writing by the Voting Trustees, CEH LLC and Trust Holders representing a
majority of the Trust Units then issued and outstanding; provided, that the
written consent of the Resident Trustee shall be required for any amendment
adversely affecting the Resident Trustee's rights, powers and duties hereunder.
Section 11.02 No Legal Title to Trust Estate in the Voting Trust CEH
Units. The Trust Holders shall not have legal title to any part of the trust
estate of the Voting Trust CEH Units.
Section 11.03 Notices. Unless otherwise stated herein all notices,
demands, requests and other communications hereunder shall be in writing and
shall be deemed to have been duly given when delivered by hand or mail with
return receipt requested or when sent by telecopier (with receipt confirmed);
provided a copy is also sent by registered or certified mail, return receipt
requested, addressed as follows (or to such other address as a party may
designate by written notice to all other parties to this
30
Agreement or, in the case of a Trust Holder, to such other address as such Trust
Holder may designate by written notice to the Board (which shall promptly notify
Aurora and the Resident Trustee of any such change)):
If to the Trust Holders, to the respective addresses given next to each
Trust Holder's name as listed in Schedule I.
If to the Resident Trustee, to:
Wilmington Trust Company
1100 North Market Street
Wilmington, DE 19890
Facsimile: (302) 636-4143
Attn: Rosemary Kennard
If to the Voting Trustees or the Board, to:
Kenneth Liang
c/o Oaktree Capital Management, LLC
333 South Grand Avenue, 28th Floor
Los Angeles, CA. 90071
Facsimile: (213) 830-8522
Robert B. Webster
c/o Pequot Capital Management, Inc.
11111 Santa Monica Blvd, Ste 1210
Los Angeles, CA 90025
Facsimile: 310-689-5199
Soo Kim
c/o Och Ziff Capital Management
Och Ziff Freidheim Capital Management
9 West 57th Street, 39th Floor
New York, NY 10019
Facsimile: (212) 790-0044
31
with a copy to:
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
Attn: Steven R. Gross, Esq.
Facsimile: (212) 909-6836
Pequot Capital Management, Inc.
500 Nyala Farm Road
Westport, CT 06880
Attn: Rich Joslin/Aryeh Davis
Facsimile: (203) 557-5548
If to CEH LLC, to:
Crunch Equity Holding, LLC
c/o Aurora Foods Inc. (to be renamed Pinnacle Foods Group, Inc.)
One Old Bloomfield Road
Mountain Lakes, NJ 07046
Facsimile: (973) 541-6691
with a copy to:
J.P. Morgan Partners
1221 Avenue of the Americas
40th Floor
New York, NY 10020
Attention: Official Notices Clerk
FBO: Stephen P. Murray
Facsimile: (212) 899-3762
O'Melveny & Meyers LLP
7 Times Square
New York, NY 10036
Attention: Gregory Gilbert, Esq.
Facsimile: (212) 408-2420
J.W. Childs Equity Partners III, L.P.
111 Huntington Avenue - Suite 2900
Boston, MA 02199-7610
Attention: Adam L. Smith
Facsimile: (617) 753-1101
32
Kaye Scholer LLP
425 Park Avenue
New York, NY 10022
Attention: Steven C. Koval, Esq.
Facsimile: (212) 836-8689
If to Aurora, to:
Aurora Foods Inc.
Pinnacle Foods Group Inc.
One Old Bloomfield Road
Mountain Lakes, NJ 07046
Facsimile: (973) 541-6691
Section 11.04 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 11.05 Separate Counterparts; Delivery. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument. Delivery of an executed
counterpart of a signature page to this Agreement by telecopier or other
electronic means shall be effective as delivery of an original executed
counterpart of this Agreement.
Section 11.06 Successors. All covenants and agreements contained herein
shall be binding upon, and inure to the benefit of, Aurora, CEH LLC, the
Resident Trustee, the Voting Trustees and the Trust Holders and their respective
successors. Any request, notice, direction, consent, waiver or other instrument
or action by any party shall bind the successors of such party.
Section 11.07 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
Section 11.08 Governing Law. This Agreement shall in all respects be
governed by, and construed in accordance with, the laws of the State of
Delaware, including all matters of construction, validity and performance;
provided, however, that there shall not be applicable to the parties hereunder
or this Agreement any provision of the laws (common or statutory) of the State
of Delaware pertaining to trusts that relate to or
33
regulate, in a manner inconsistent with the terms hereof, (a) the filing with
any court or governmental body or agency of trustee accounts or schedules of
trustee fees and charges, (b) affirmative requirements to post bonds for
trustees, officers, agents or employees of a trust, (c) the necessity for
obtaining court or other governmental approval concerning the acquisition,
holding or disposition of real or personal property, (d) fees or other sums
payable to trustees, officers, agents or employees of a trust, (e) the
allocation of receipts and expenditures to income or principal, (f) restrictions
or limitations on the permissible nature, amount or concentration of trust
investments or requirements relating to the titling, storage or other manner of
holding or investing trust assets or (g) the establishment of fiduciary or other
standards of responsibility or limitations on the acts or powers of trustees
that are inconsistent with the limitations or authorities and powers of the
trustees hereunder as set forth or referenced in this Agreement. Section 3540 of
title 12 of the Delaware Code shall not apply to the Trust.
Section 11.09 Consent to Jurisdiction and Venue; Waiver of Jury Trial.
(a) Each of the parties hereto irrevocably agrees that any legal action
or proceeding with respect to this Agreement or for recognition and enforcement
of any judgment in respect hereof brought by the other party hereto or its
successors or assigns may be brought and determined in the Chancery or other
Courts of the State of Delaware, and each of the parties hereto hereby
irrevocably submits with regard to any such action or proceeding for itself and
in respect to its property, generally and unconditionally, to the nonexclusive
jurisdiction of the aforesaid courts. Each of the parties hereto hereby
irrevocably waives, and agrees not to assert, by way of motion, as a defense,
counterclaim or otherwise, in any action or proceeding with respect to this
Agreement, (i) any claim that it is not personally subject to the jurisdiction
of the above-named courts for any reason other than the failure to lawfully
serve process, (ii) that it or its property is exempt or immune from
jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise)
and (iii) to the fullest extent permitted by applicable law, that (x) the suit,
action or proceeding in any such court is brought in an inconvenient forum, (y)
the venue of such suit, action or proceeding is improper and (z) this Agreement,
or the subject matter hereof, may not be enforced in or by such courts.
(b) Each party hereby waives, to the fullest extent permitted by
applicable law, any right it may have to a trial by jury in respect of any suit,
action or proceeding arising out of this Agreement or any transaction
contemplated hereby. Each party (i) certifies that no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the foregoing
waiver and (ii) acknowledges that it and the other parties have been induced to
enter into the Agreement by, among other things, the mutual waivers and
certifications in this Section 11.09(b).
34
Section 11.10 Further Assurances. The Trust Holders shall execute and
deliver all such instruments, documents or certificates as the Board may deem
necessary or advisable in connection with the performance of its
responsibilities hereunder.
Section 11.11 Entire Agreement. This Agreement, together with the Merger
Agreement, the Operating Agreement, the Members Agreement, the Indemnity
Agreement and the Registration Rights Agreement, embodies the final, entire
agreement of the Trust Holders, Aurora, CEH LLC, the Resident Trustee and the
Voting Trustees with respect to the Trust and supersedes any and all prior
commitments, agreements, representations, and understandings, whether written or
oral, relating to the subject matter hereof and may not be contradicted or
varied by evidence of prior, contemporaneous or subsequent oral agreements or
discussions of the parties hereto. There are no oral agreements among the
parties hereto with respect to the subject matter hereof.
35
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers hereunto duly authorized, as of the
day and year first above written.
WILMINGTON TRUST COMPANY,
as Resident Trustee
By: /S/ ROSEMARY KENNARD
--------------------
Name: Rosemary Kennard
Title: Assistant Vice President
KENNETH LIANG,
as Voting Trustee
/s/ KENNETH LIANG
-----------------
ROBERT WEBSTER,
as Voting Trustee
/s/ ROBERT WEBSTER
------------------
SOO KIM,
as Voting Trustee
/S/ SOO KIM
-----------
AURORA FOODS INC.
By: /s/ N. MICHAEL DION
-------------------
Name: N. Michael Dion
CRUNCH EQUITY HOLDING, LLC
By: /s/ JONATHAN LYNCH
------------------
Name: Jonathan Lynch
EXHIBIT A
Form of Certificate of Trust
CERTIFICATE OF TRUST
OF
CRUNCH EQUITY VOTING TRUST
This Certificate of Trust is being duly executed and filed on behalf of
the statutory trust formed hereby by the undersigned, being the initial trustees
of the Trust, to form a statutory trust pursuant to the Delaware Statutory Trust
Act (12 Del. C. Sections 3801, et seq.).
1. Name. The name of the statutory trust formed hereby is Crunch Equity
Voting Trust (the "Trust").
2. Delaware Trustee. The name and business address of the trustee of the
Trust having its principal place of business in the State of Delaware is
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington Delaware, 19890-1600, Attention: Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall become effective upon
filing in the office of the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, as initial trustees, have executed
this Certificate of Trust as of this ______ day of ________, 2004.
WILMINGTON TRUST
COMPANY, not in its
individual capacity but solely as
Resident Trustee
By:_______________________________
Name:__________________________
Title:_________________________
KENNETH LIANG,
not in his individual capacity
but solely as Voting Trustee
_______________________________
EXHIBIT A
ROBERT WEBSTER,
not in his individual capacity
but solely as Voting Trustee
_______________________________
SOO KIM,
not in his individual capacity
but solely as Voting Trustee
_______________________________
Exh. A-2
SCHEDULE I
TRUST HOLDERS
Name Address for Notices Wire Transfer Instructions
- ---- ------------------- --------------------------
Sched. I-1