Exhibit 10.10
REGISTRATION RIGHTS
AGREEMENT, dated as of March 19, 2004, (the
"Agreement") among CRUNCH HOLDING
CORP., a Delaware corporation (the
"Corporation") and the INVESTORS (as herein
defined).
The Investors own equity interests in Crunch Equity Holding, LLC,
the parent of the Corporation ("Crunch LLC") and may acquire shares of the
Common Stock (as hereinafter defined) of the Corporation upon the occurrence of
a Post-IPO Liquidation (as defined in the Amended and Restated Members
Agreement, dated as of the date hereof, among Crunch LLC and the members party
thereto). The Corporation and the Investors deem it to be in their respective
best interests to set forth their rights in connection with public offerings and
sales of the Common Stock.
NOW, THEREFORE, in consideration of the premises and mutual
covenants and obligations hereinafter set forth, the Corporation and the
Investors hereby agree as follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
"AFFILIATE" means, with respect to any Person, any (a) director,
officer, limited or general partner, member or Investor holding 5% or more of
the outstanding capital stock or other equity interests of such Person, (b) any
spouse, parent, sibling or descendant of such Person (or a spouse, parent,
sibling or descendant of a Person specified in clause (a) above relating to such
Person) and (c) other Person that, directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such Person. The term "control" includes, without limitation, the possession,
directly or indirectly, of the power to direct the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.
"BOARD" means the Board of Directors of the Corporation.
"BONDHOLDER TRUST" means Crunch Equity Voting Trust, a Delaware
business trust.
"CDM HOLDER" means CDM Investor Group LLC.
"CLOSING" shall have the meaning given in the Agreement and Plan of
Reorganization and Merger, dated as of November 24, 2003, between Aurora Foods,
Inc. and Crunch Equity Holding, LLC.
"COMMISSION" means the Securities and Exchange Commission or any
other agency at the time administering the Securities Act.
"COMMON STOCK" means the common stock, par value $0.01, of the
Corporation.
"DEMANDING HOLDER" means each of (i) the JPMP Holder, (ii) the JWC
Holder, (iii) Bondholder Trust and (iv) the CDM Holders, so long as at the time
in question (A) C. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ is the managing member of the CDM Holder and
(B) either C. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ is employed by Pinnacle Foods Holding Corporation
(or any successor thereto) or one of its subsidiaries, or has been terminated
without Cause or resigned with Good Reason (as such terms are defined in the
Employment Agreement dated as of November 25, 2003 among C. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
Pinnacle Foods Holding Corporation and Pinnacle Foods Corporation, as may be
amended or modified).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any successor statute, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect from time
to time.
"INVESTORS" means the Investors listed on Annex I hereto and their
respective successors, assignees and transferees who execute a counterpart to
this Agreement in accordance with Section 14.
"INVESTORS' COUNSEL" shall have the meaning set forth in Section
6(b).
"IPO" shall mean the Corporation's initial registration of its or
any subsidiary's (or successor in interest of the foregoing) equity securities
listed on a nationally recognized exchange or the Nasdaq National Market System,
in each case which is made pursuant to an effective registration statement under
the Securities Act.
"JPMP HOLDER" shall mean, collectively, (i) ▇.▇. ▇▇▇▇▇▇ Partners
(BHCA), L.P., (ii) ▇.▇. ▇▇▇▇▇▇ Partners Global Investors, L.P., (iii) ▇.▇.
▇▇▇▇▇▇ Partners Global Investors (Cayman), L.P., (iv) ▇.▇. ▇▇▇▇▇▇ Partners
Global Investors (Cayman II), L.P., and (v) ▇.▇. ▇▇▇▇▇▇ Partners Global
Investors A, L.P.
"JWC HOLDER" shall mean, collectively, (i) ▇.▇. Childs Equity
Partners III, L.P., and (ii) JWC Co-Invest Fund III, LLC.
"MEMBERS AGREEMENT" means the Amended and Restated Members Agreement
between Crunch LLC, and the other parties thereto dated as of the date hereof,
as the same may be amended or supplemented from time to time.
"PERSON" shall be construed in the broadest sense and means and
includes a natural person, a partnership, a corporation, an association, a joint
stock company, a limited liability company, a trust, a joint venture, an
unincorporated organization and any other entity and any federal, state,
municipal, foreign or other government, governmental department, commission,
board, bureau, agency or instrumentality, or any private or public court or
tribunal.
"PRIMARY SHARES" means at any time authorized but unissued shares of
Common Stock.
"REGISTRABLE SHARES" means the shares of Common Stock held by the
Investors which constitute Restricted Shares.
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"REGISTRATION DATE" means the date upon which the registration
statement pursuant to an IPO shall have been declared effective.
"REQUISITE REQUESTING HOLDERS" means, with respect to any
registration of Registrable Shares by the Corporation in accordance with Section
2 of this Agreement, Investors who in the aggregate hold at least seventy-five
percent (75%) of the Registrable Shares requested to be registered pursuant to
such registration.
"RESTRICTED SHARES" means shares of Common Stock acquired by any
Investor pursuant to Section 3.13(b) of the Members Agreement or otherwise
acquired by an Investor in connection with the liquidation of Crunch LLC in
connection with an IPO, and includes (i) shares of Common Stock which may be
issued as a dividend or distribution, (ii) any other securities which by their
terms are exercisable or exchangeable for or convertible into Common Stock or
which may be exchanged or recapitalized for shares of Common Stock, and (iii)
any securities received in respect of the foregoing, in each case in clauses (i)
through (iii) which are held by such Investor. As to any particular Restricted
Shares, once issued, such Restricted Shares shall cease to be Restricted Shares
when (i) they have been registered under the Securities Act, the registration
statement in connection therewith has been declared effective and they have been
disposed of pursuant to such effective registration statement, (ii) they are
eligible to be sold or distributed pursuant to Rule 144 (including, without
limitation, Rule 144(k)) in a single transaction by any Investor without
limitation, or (iii) they shall have ceased to be outstanding.
"RULE 144" means Rule 144 promulgated under the Securities Act or
any successor rule thereto or any complementary rule thereto (such as Rule
144A).
"SECURITIES ACT" means the Securities Act of 1933, as amended, or
any successor statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
SECTION 2. REQUIRED REGISTRATION.
(a) At any time after the Registration Date, if any of the Demanding
Holders shall request that the Corporation effect the registration of
Registrable Shares under the Securities Act with an anticipated aggregate
offering price to the public of not less than $50,000,000, the Corporation shall
promptly use its best efforts to effect the registration under the Securities
Act of such Registrable Shares. Upon such request, then the Corporation shall
promptly give written notice to the other Investors of its requirement to so
register such offering and, upon the written request, delivered to the
Corporation within thirty (30) days after delivery of any such notice by the
Company, of the other Investors to include in such registration Registrable
Shares (which request shall specify the number of such Registrable Shares
proposed to be included in such registration), the Corporation shall, whether or
not any other Investors request to include any Registrable Shares in such
registration, subject to Section 2(b) below, promptly use its best efforts to
effect such registration under the Securities Act of an offering of the
Registrable Shares which the Corporation has been so requested to register for
sale in accordance with the method of distribution specified in the initiating
request.
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(b) Notwithstanding anything contained in this Section 2 to the
contrary, the Corporation shall not be obligated to effect any registration
under the Securities Act except in accordance with the following provisions:
(i) The Corporation shall not be obligated to file and cause
to become effective more than one (1) registration statement initiated by
each of the Demanding Holders, in each case pursuant to Section 2(a)
above, on Form S-1 promulgated under the Securities Act (or any successor
form thereto).
(ii) The Corporation may delay the filing or effectiveness of
any registration statement for a period of up to 90 days after the date of
a request for registration pursuant to Section 2(a) if at the time of such
request: (X) the Corporation is engaged, or has fixed plans to engage
within 15 days of the time of such request, in a firm commitment
underwritten public offering of Primary Shares in which the holders of
Registrable Shares have been or will be permitted to include all the
Registrable Shares so requested to be registered pursuant to Section 3 or
(Y) the Board reasonably determines that such registration and offering
would interfere with any material transaction involving the Corporation;
provided, however, that the Corporation shall only be entitled to invoke
its rights under this Section 2(b)(ii) one time during each fiscal year of
the Corporation during the duration of this Agreement.
(iii) If the managing underwriter advises the Corporation that
the inclusion of all Registrable Shares and/or Primary Shares proposed to
be included in such registration would interfere with the successful
marketing (including pricing) of the Registrable Shares proposed to be
included in such registration, then the number of Registrable Shares
and/or Primary Shares proposed to be included in such registration shall
be included in the following order:
(A) first, the Primary Shares; and
(B) second, the Registrable Shares held by the Investors
(or, if necessary, such Registrable Shares pro rata among the
holders thereof based upon the number of Registrable Shares
requested to be registered by each Investor).
(iv) If the Requisite Requesting Holders so elect, the
offering of such Registrable Shares pursuant to such registration shall be
in the form of an underwritten offering, provided, however, that no
Investor participating in such registration shall unreasonably withhold
consent to such election by another Investor participating in such
registration. The Requisite Requesting Holders shall select one or more
nationally recognized firms of investment bankers reasonably acceptable to
the Corporation to act as the lead managing underwriter or underwriters in
connection with such offering.
(v) At any time before the registration statement covering
such Registrable Shares becomes effective, such Requisite Requesting
Holders may request the Corporation to withdraw or not to file the
registration statement. In that event, unless such request of withdrawal
was caused by, or made in response to, a material adverse effect or a
similar event related to the business, properties, condition, or
operations of the
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Corporation not known (without imputing the knowledge of any other Person
to such holders) by the holders initiating such request at the time their
request was made, or other material facts not known to such holders at the
time their request was made, such holders shall be deemed to have used one
of their registration rights under Section 2(a) unless the Demanding
Holder making the initial request under Section 2(a) is not among the
Requisite Requesting Holders requesting such withdrawal.
SECTION 3. PIGGYBACK REGISTRATION.
If the Corporation at any time proposes for any reason to register
Primary Shares under the Securities Act (other than on Form S-4 or Form S-8
promulgated under the Securities Act (or any successor forms thereto)), it shall
give written notice to the Investors of its intention to so register such
Primary Shares at least 40 days before the initial filing of the registration
statement related thereto and, upon the request, delivered to the Corporation
within 30 days after delivery of any such notice by the Corporation, of an
Investor to include in such registration Registrable Shares (which request shall
specify the number of Registrable Shares proposed to be included in such
registration), the Corporation shall use its best efforts to cause all such
Registrable Shares to be included in such registration on the same terms and
conditions as the securities otherwise being sold in such registration;
provided, however, that if the managing underwriter advises the Corporation that
the inclusion of all Registrable Shares requested to be included in such
registration would interfere with the successful marketing (including pricing)
of the Primary Shares proposed to be registered by the Corporation, then the
number of Primary Shares and Registrable Shares proposed to be included in such
registration shall be included in the order set forth in Section 2(b)(iii).
SECTION 4. REGISTRATIONS ON FORM S-3.
Anything contained in Section 2 to the contrary notwithstanding, at
such time as the Corporation shall have qualified for the use of Form S-3
promulgated under the Securities Act or any successor form thereto, each
Demanding Holder shall have the right to request an unlimited number of
registrations of Registrable Shares on Form S-3 (which may, at such holders'
request, be shelf registrations pursuant to Rule 415 promulgated under the
Securities Act) or its successor form, which request or requests shall (i)
specify the number of Registrable Shares intended to be sold or disposed of and
the holders thereof, (ii) state whether the intended method of disposition of
such Registrable Shares is an underwritten offering or a shelf registration and
(iii) relate to Registrable Shares having an aggregate offering price of at
least $10,000,000. Upon such request, then the Corporation shall promptly give
written notice to the other Investors of its requirement to so register such
offering and, upon the written request, delivered to the Corporation within
thirty (30) days after delivery of any such notice by the Company, of the other
Investors to include in such registration Registrable Shares (which request
shall specify the number of such Registrable Shares proposed to be included in
such registration), the Corporation shall, whether or not any other Investors
request to include any Registrable Shares in such registration, subject to
Section 2(b), promptly use its best efforts to effect such registration under
the Securities Act of an offering of the Registrable Shares which the
Corporation has been so requested to register for sale in accordance with the
method of distribution specified in the initiating request. A requested
registration on Form S-3 (or its successor form) in compliance with this Section
4 shall not count as a registration statement
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initiated pursuant to Section 2(b)(i) but shall otherwise be treated as a
registration initiated pursuant to Section 2(b) (including Section 2(b)(iii)).
SECTION 5. IPO DEMAND REGISTRATION.
(a) If Bondholder Trust requests the registration of Registrable
Shares in connection with the Required IPO (as defined in the Members
Agreement), the Corporation shall promptly give written notice to each other
Investor of its requirement to consummate an IPO, and such other holders shall
inform the Corporation within ten (10) days after delivery of such notice of the
percentage of their respective aggregate holdings that they wish to include in
the IPO; provided, however, that each other Investor agrees that such percentage
participation shall be no less in each case than the percentage of Bondholder
Trust's Registrable Shares to be registered.
(b) The provisions of Section 2(b) and Section 6 shall apply to any
IPO commenced pursuant to this Section 5, except that:
(i) the exercise of Bondholder Trust's right to require the
Corporation to consummate an IPO under this Section 5 shall not limit
Bondholder Trust's right to request a follow-on registration pursuant to
Section 2(b)(i);
(ii) the provisions of Section 2(b)(ii) shall not apply; and
(iii) Bondholder Trust shall exercise the rights given to the
Requisite Requesting Holders in Section 2(b) and Section 6, including
without limitation (A) the right under Section 2(b)(iv) to select one or
more nationally recognized firms of investment bankers reasonably
acceptable to the Corporation to act as the lead managing underwriter or
underwriters in connection with the IPO and (B) the right to select
Investors' Counsel under Section 6(b).
SECTION 6. PREPARATION AND FILING.
If and whenever the Corporation is under an obligation pursuant to
the provisions of this Agreement to effect the registration of any Registrable
Shares, the Corporation shall, as expeditiously as practicable:
(a) prepare and file with the Commission, no later than 60 days
after receipt of a request pursuant to Section 2(a) (subject to Section 2(b)) or
Section 4, a registration statement with respect to such securities and use its
best efforts to cause such registration statement that registers such
Registrable Shares to become and remain effective until all of such Registrable
Shares have been disposed of and use its best efforts to cause management to
participate in any marketing activities, such as roadshows, reasonably requested
by the managing underwriter in connection with the sale of Registrable Shares
requested to be registered;
(b) furnish, at least ten business days before filing a registration
statement that registers such Registrable Shares, a prospectus relating thereto
or any amendments or supplements relating to such a registration statement or
prospectus, to the Investors participating in such offering and one counsel
selected by the Requisite Requesting Holders (provided that no
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holder participating in such registration shall unreasonably withhold consent to
the selection of counsel by the Investor or Investors requesting such
registration) (the "Investors' Counsel"), copies of all such documents proposed
to be filed (it being understood that such fifteen-business-day period need not
apply to successive drafts of the same document proposed to be filed so long as
such successive drafts are supplied to the Investors participating in such
offering and Investors' Counsel in advance of the proposed filing by a period of
time that is customary and reasonable under the circumstances);
(c) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective
until all of such Registrable Shares have been disposed of and to comply with
the provisions of the Securities Act with respect to the sale or other
disposition of such Registrable Shares;
(d) notify in writing the Investors' Counsel and the Investors
participating in such offering (i) of the receipt by the Corporation of any
notification with respect to any comments by the Commission with respect to such
registration statement or prospectus or any amendment or supplement thereto or
any request by the Commission for the amending or supplementing thereof or for
additional information with respect thereto, (ii) of the receipt by the
Corporation of any notification with respect to the issuance by the Commission
of any stop order suspending the effectiveness of such registration statement or
prospectus or any amendment or supplement thereto or the initiation or
threatening of any proceeding for that purpose and (iii) of the receipt by the
Corporation of any notification with respect to the suspension of the
qualification of such Registrable Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purposes;
(e) use its best efforts to register or qualify such Registrable
Shares under such other securities or blue sky laws of such jurisdictions as the
holders of Registrable Shares reasonably request and do any and all other acts
and things which may be reasonably necessary or advisable to enable the
Investors to consummate the disposition in such jurisdictions of the Registrable
Shares owned by the Investors; provided, however, that the Corporation will not
be required to qualify generally to do business, subject itself to general
taxation or consent to general service of process in any jurisdiction where it
would not otherwise be required to do so but for this paragraph (e);
(f) furnish to the holders of such Registrable Shares such number of
copies of a summary prospectus, if any, or other prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as such Investors may reasonably request in order
to facilitate the public sale or other disposition of such Registrable Shares;
(g) without limiting subsection (e) above, use its best efforts to
cause such Registrable Shares to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Corporation to enable the Investors holding such
Registrable Shares to consummate the disposition of such Registrable Shares;
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(h) notify the holders of such Registrable Shares on a timely basis
at any time when a prospectus relating to such Registrable Shares or any
document related thereto includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing and, at the request of the Investors prepare and furnish to such
holders a reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the offerees
of such shares, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(i) make available upon reasonable notice and during normal business
hours, for inspection by the Investors holding such Registrable Shares, any
underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by the Investors
or underwriter (collectively, the "Inspectors"), all pertinent financial and
other records, pertinent documents and properties of the Corporation
(collectively, the "Records"), as shall be reasonably necessary to enable them
to exercise their due diligence responsibility, and cause the Corporation's
officers, directors and employees to supply all information (together with the
Records, the "Information") reasonably requested by any such Inspector in
connection with such registration statement. Any of the Information which the
Corporation determines in good faith to be confidential, and of which
determination the Inspectors are so notified, shall not be disclosed by the
Inspectors unless (i) the disclosure of such Information is necessary to avoid
or correct a material misstatement or omission in the registration statement,
(ii) the release of such Information is ordered pursuant to a subpoena or other
order from a court or governmental agency or authority of competent
jurisdiction, (iii) such Information has been made generally available to the
public through no breach of the nondisclosure obligations of the Inspectors or
their Affiliates or (iv) such disclosure is required to be made under applicable
law;
(j) use its best efforts to obtain from its independent certified
public accountants "cold comfort" letters in customary form and at customary
times and covering matters of the type customarily covered by cold comfort
letters;
(k) use its best efforts to obtain from its counsel an opinion or
opinions in customary form;
(l) provide a transfer agent and registrar (which may be the same
entity and which may be the Corporation) for such Registrable Shares;
(m) promptly issue to any underwriter to which the Investors holding
such Registrable Shares may sell shares in such offering certificates evidencing
such Registrable Shares;
(n) list such Registrable Shares on any national securities exchange
on which any shares of the Common Stock are listed or, if the Common Stock is
not listed on a national securities exchange, use its best efforts to qualify
such Registrable Shares for inclusion on the automated quotation system of the
National Association of Securities Dealers, Inc. (the
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"NASD"), or such other national securities exchange as the holders of a majority
of such Registrable Shares shall reasonably request;
(o) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission and make available to its
securityholders, as soon as reasonably practicable, earnings statements covering
a period of 12 months beginning within three months after the effective date of
the subject registration statement; and
(p) otherwise use its best efforts to take all other steps necessary
to effect the registration of such Registrable Shares contemplated hereby.
(q) Each holder of the Registrable Shares, upon receipt of any
notice from the Corporation of any event of the kind described in Section 6(h)
hereof, shall forthwith discontinue disposition of the Registrable Shares
pursuant to the registration statement covering such Registrable Shares until
such holder's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 6(h) hereof, and, if so directed by the Corporation,
such holder shall deliver to the Corporation all copies, other than permanent
file copies then in such holder's possession, of the prospectus covering such
Registrable Shares at the time of receipt of such notice.
SECTION 7. EXPENSES.
All expense s incurred by the Corporation and the Investors in
complying with their obligations pursuant to this Agreement and in connection
with the registration and disposition of Registrable Shares, including, without
limitation, all registration and filing fees (including all expenses incident to
filing with the NASD), fees and expenses of complying with securities and blue
sky laws, printing expenses, fees and expenses of the Corporation's counsel and
accountants and fees and expenses of the Investors' Counsel shall be paid by the
Corporation; provided, however, that all underwriting discounts and selling
commissions applicable to the Registrable Shares shall be borne by the holders
selling such Registrable Shares in proportion to the number of Registrable
Shares sold by each such holder.
SECTION 8. INDEMNIFICATION.
(a) In connection with any registration of any Registrable Shares
under the Securities Act pursuant to this Agreement, the Corporation shall
indemnify and hold harmless the holders of Registrable Shares, each of such
holder's officers, directors, employees, members, partners, trustees, trustors,
beneficial owners and advisors and their respective Affiliates, each
underwriter, broker or any other person acting on behalf of the holders of
Registrable Shares and each other Person, if any, who controls any of the
foregoing Persons within the meaning of the Securities Act against any losses,
claims, damages, liabilities, or actions joint or several (or actions in respect
thereof), to which any of the foregoing persons may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or allegedly untrue statement of a material fact contained in
the registration statement under which such Registrable Shares were registered
under the Securities Act, any preliminary prospectus or final prospectus
contained therein or otherwise filed with the Commission, any amendment or
supplement thereto
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or any document incident to registration or qualification of any Registrable
Shares, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading or, with respect to any prospectus,
necessary to make the statements therein in light of the circumstances under
which they were made not misleading, or any violation by the Corporation of the
Securities Act or state securities or blue sky laws applicable to the
Corporation or relating to action or inaction required of the Corporation in
connection with such registration or qualification under such state securities
or blue sky laws; and shall reimburse such Persons for any legal or other
expenses reasonably incurred by any of them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Corporation shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action (including any legal or other
expenses incurred) arises out of or is based upon an untrue statement or
allegedly untrue statement or omission or alleged omission made in said
registration statement, preliminary prospectus, final prospectus, amendment,
supplement or document incident to registration or qualification of any
Registrable Shares in reliance upon and in conformity with written information
furnished to the Corporation by such holder of Registrable Shares specifically
for use in the preparation thereof; provided further, however, that the
foregoing indemnity agreement is subject to the condition that, insofar as it
relates to any untrue statement, allegedly untrue statement, omission or alleged
omission made in any preliminary prospectus but eliminated or remedied in the
final prospectus, such indemnity agreement shall not inure to the benefit of any
of such Persons if a copy of such final prospectus had been made available to
such Persons and such final prospectus was not delivered to the purchaser of the
Registrable Shares with or prior to the written confirmation of the sale of such
Registrable Shares.
(b) In connection with any registration of Registrable Shares under
the Securities Act pursuant to this Agreement, each holder of Registrable Shares
shall severally (based on the percentage of all Registrable and Primary Shares
included in such registration that were owned by such holder), and not jointly
and severally, indemnify and hold harmless (in the same manner and to the same
extent as set forth in Section 8(a)) the Corporation, each director of the
Corporation, each officer of the Corporation who shall sign such registration
statement, each underwriter, broker or other person acting on behalf of the
holders of Registrable Shares and each person who controls any of the foregoing
persons within the meaning of the Securities Act with respect to any statement
or omission from such registration statement, any preliminary prospectus or
final prospectus contained therein or otherwise filed with the Commission, any
amendment or supplement thereto or any document incident to registration or
qualification of any Registrable Shares, if such statement or omission was made
in reliance upon and in conformity with written information furnished to the
Corporation or such underwriter by such holder of Registrable Shares
specifically for use in connection with the preparation of such registration
statement, preliminary prospectus, final prospectus, amendment, supplement or
document; provided, however, that the maximum amount of liability in respect of
such indemnification shall be limited, in the case of each holder of Registrable
Shares, to an amount equal to the net proceeds actually received by such holder
from the sale of Registrable Shares effected pursuant to such registration.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in this Section 8, such
indemnified party will, if a claim in respect thereof is made against an
indemnifying party, give written notice to the latter of
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the commencement of such action. The failure of any indemnified party to notify
an indemnifying party of any such action shall not (unless such failure shall
have a material adverse effect on the indemnifying party) relieve the
indemnifying party from any liability in respect of such action that it may have
to such indemnified party hereunder. In case any such action is brought against
an indemnified party, the indemnifying party will be entitled to participate in
and to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be responsible for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof; provided, however, that if any indemnified party shall have
reasonably concluded that there may be one or more legal or equitable defenses
available to such indemnified party which are additional to or conflict with
those available to the indemnifying party, or that such claim or litigation
involves or could have an effect upon matters beyond the scope of the indemnity
agreement provided hereunder, the indemnifying party shall not have the right to
assume the defense of such action on behalf of such indemnified party (but shall
have the right to participate therein with counsel of its choice) and such
indemnifying party shall reimburse such indemnified party and any Person
controlling such indemnified party for that portion of the fees and expenses of
any counsel retained by the indemnified party which is reasonably related to the
matters covered by the indemnity agreement provided hereunder. If the
indemnifying party is not entitled to, or elects not to, assume the defense of a
claim, it will not be obligated to pay the fees and expenses of more than one
counsel with respect to such claim.
(d) If the indemnification provided for hereunder is held by a court
of competent jurisdiction to be unavailable to an indemnified party with respect
to any loss, claim, damage, liability or action referred to herein, then the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amounts paid or payable by such indemnified party as a
result of such loss, claim, damage, liability or action in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other in connection with the statements
or omissions which resulted in such loss, claim, damage, liability or action as
well as any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties agree
that it would not be just and equitable if contribution pursuant hereto were
determined by pro rata allocation or by any other method or allocation which
does not take account of the equitable considerations referred to herein. No
person guilty or liable of fraudulent misrepresentation shall be entitled to
contribution from any person.
SECTION 9. INFORMATION BY HOLDER.
The Investors shall furnish to the Corporation such written
information regarding the Investors and the distribution proposed by any
Investors as the Corporation may reasonably request in writing and as shall be
reasonably required in connection with any registration referred to in this
Agreement.
11
SECTION 10. EXCHANGE ACT COMPLIANCE.
From the Registration Date or such earlier date as a registration
statement filed by the Corporation pursuant to the Exchange Act relating to any
class of the Corporation's securities shall have become effective, the
Corporation shall comply with all of the reporting requirements of the Exchange
Act applicable to it and shall comply with all other public information
reporting requirements of the Commission which are conditions to the
availability of Rule 144. The Corporation shall cooperate with the Investors in
supplying such information as may be necessary for the Investors to complete and
file any information reporting forms presently or hereafter required by the
Commission as a condition to the availability of Rule 144.
SECTION 11. NO CONFLICT OF RIGHTS; FUTURE RIGHTS.
The Corporation shall not, after the date hereof, grant any
registration rights which conflict with or impair the rights granted to the
Investors hereby. If at any time following the date hereof, the Corporation
shall grant to any present or future Investor of the Corporation rights to in
any manner cause or participate in any registration statement of the Corporation
that, in the judgment of the Investors, are superior to or conflict with the
rights granted to the Investors hereby, such grant shall be null, void and ultra
▇▇▇▇▇.
SECTION 12. TERMINATION.
This Agreement shall terminate and be of no further force or effect
when there shall no longer be any Registrable Shares outstanding.
SECTION 13. BENEFITS OF AGREEMENT; THIRD PARTY BENEFICIARIES.
Except as provided herein, this Agreement shall bind and inure to
the benefit of the Corporation, the Investors and subject to Section 14, the
respective successors and assigns of the Corporation and the Investors.
SECTION 14. ASSIGNMENT.
Each Investor may assign its rights hereunder to any purchaser or
transferee of Registrable Shares; provided, however, that such purchaser or
transferee shall, as a condition to the effectiveness of such assignment, be
required to execute a counterpart to this Agreement, whereupon such purchaser or
transferee shall have the benefits of, and shall be subject to the restrictions
contained in this Agreement as if such purchaser or transferee was originally
included in the definition of Investor herein and had originally been a party
hereto. Notwithstanding the foregoing, no Demand Holder may assign its right to
request that the Corporation effect the registration of Registrable Shares
pursuant to Section 2(a). The Corporation may not assign any rights hereunder
without the consent of each of the Demanding Holders.
SECTION 15. ENTIRE AGREEMENT.
This Agreement, and the other writings referred to herein or
delivered pursuant hereto, contain the entire agreement among the parties hereto
with respect to the subject matter
12
hereof and supersede all prior and contemporaneous arrangements or
understandings with respect thereto.
SECTION 16. NOTICES.
All notices, requests, consents and other communications hereunder
to any party shall be deemed to be sufficient if contained in a written
instrument delivered in person or sent by telecopy, nationally-recognized
overnight courier or first class registered or certified mail, return receipt
requested, postage prepaid, addressed to such party at the address set forth
below or such other address as may hereafter be designated in writing by such
party to the other parties:
(i) if to the Corporation, to:
Crunch Holding Corp.
c/o Pinnacle Foods Holding Corporation
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Investors, to their respective addresses set forth on
Annex I hereto.
All such notices, requests, consents and other communications shall
be deemed to have been delivered (a) in the case of personal delivery or
delivery by telecopy, on the date of such delivery, (b) in the case of dispatch
by nationally-recognized overnight courier, on the next business day following
such dispatch and (c) in the case of mailing, on the third business day after
the posting thereof.
SECTION 17. MODIFICATIONS; AMENDMENTS; WAIVERS.
The terms and provisions of this Agreement may not be modified or
amended except pursuant to a writing signed by the Corporation, and each of the
Demanding Holders. Any waiver of any provision of this Agreement requested by
any party hereto must be granted in advance, in writing by the party granting
such waiver; provided, however, that the Demanding Holders, may grant a waiver
on behalf of all Investors.
SECTION 18. COUNTERPARTS; FACSIMILE SIGNATURES.
This Agreement may be executed in any number of original or
facsimile counterparts, and each such counterpart hereof shall be deemed to be
an original instrument, but all such counterparts together shall constitute but
one agreement.
SECTION 19. HEADINGS.
The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Agreement.
13
SECTION 20. GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE; WAIVER OF
JURY TRIAL.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, without giving effect to any law or rule that
would cause the laws of any jurisdiction other than the State of Delaware to be
applied.
ANY ACTION OR PROCEEDING AGAINST THE PARTIES RELATING IN ANY WAY TO
THIS AGREEMENT MAY BE BROUGHT AND ENFORCED IN THE COURTS OF THE STATE OF NEW
YORK OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK,
TO THE EXTENT SUBJECT MATTER JURISDICTION EXISTS THEREFOR, AND THE PARTIES
IRREVOCABLY SUBMIT TO THE JURISDICTION OF BOTH SUCH COURTS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING. EACH OF THE PARTIES IRREVOCABLY WAIVE, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY SUCH ACTION OR PROCEEDING IN THE COURTS OF THE STATE
OF NEW YORK LOCATED IN NEW YORK COUNTY OR THE SOUTHERN DISTRICT OF NEW YORK AND
ANY CLAIM THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN ANY INCONVENIENT FORUM. ANY JUDGMENT MAY BE ENTERED IN ANY COURT
HAVING JURISDICTION THEREOF.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT.
SECTION 21. SEVERABILITY.
It is the desire and intent of the parties that the provisions of
this Agreement be enforced to the fullest extent permissible under the law and
public policies applied in each jurisdiction in which enforcement is sought.
Accordingly, in the event that any provision of this Agreement would be held in
any jurisdiction to be invalid, prohibited or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without invalidating
the remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not be invalid,
prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
* * * *
14
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement on the date first written above.
CRUNCH HOLDING CORP.
By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-Signature Page to Registration Rights Agreement-
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement on the date first written above.
INVESTORS:
▇.▇. ▇▇▇▇▇▇ PARTNERS (BHCA), L.P.
By: JPMP MASTER FUND MANAGER, L.P.,
its general partner
By: JPMP CAPITAL CORP.,
its general partner
By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ PARTNERS GLOBAL
INVESTORS, L.P.
By: JPMP GLOBAL INVESTORS, L.P.,
its general partner
By: JPMP CAPITAL CORP.,
its general partner
By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-Signature Page to Registration Rights Agreement-
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement on the date first written above.
▇.▇. ▇▇▇▇▇▇ PARTNERS GLOBAL
INVESTORS (CAYMAN), L.P.
By: JPMP GLOBAL INVESTORS, L.P.,
a general partner
By: JPMP CAPITAL CORP.,
its general partner
By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ PARTNERS GLOBAL
INVESTORS A, L.P.
By: JPMP GLOBAL INVESTORS, L.P.,
a general partner
By: JPMP CAPITAL CORP.,
its general partner
By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ PARTNERS GLOBAL
INVESTORS (CAYMAN) II, L.P.
By: JPMP GLOBAL INVESTORS, L.P.,
a general partner
By: JPMP CAPITAL CORP.,
its general partner
By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Signature Page-1
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement on the date first written above.
▇.▇. CHILDS EQUITY PARTNERS III, L.P.
By: ▇.▇. Childs Advisors III, L.P., as
general partner
By: ▇.▇. Childs Associates, L.P., as
general partner
By: ▇.▇. Childs Associates, Inc., as
general partner
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
JWC FUND III CO-INVEST, LLC
By: ▇.▇. Childs Associates, L.P., as manager
By: ▇.▇. Childs Associates, Inc., as
general partner
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Signature Page-2
IN WITNESS WHEREOF, the parties
hereto have executed this Registration
Rights Agreement on the date first written
above.
CDM INVESTOR GROUP LLC
By: /S/ C. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: C. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Signature Page-3
IN WITNESS WHEREOF, the parties
hereto have executed this Registration
Rights Agreement on the date first
written above.
CRUNCH EQUITY VOTING TRUST
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
Signature Page-4
IN WITNESS WHEREOF, the parties
hereto have executed this Registration
Rights Agreement on the date first written
above.
CO-INVESTMENT PARTNERS, L.P.
By: CIP Partners LLC, Managing Member
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Member
Signature Page-5
ANNEX I
INVESTORS
▇.▇. ▇▇▇▇▇▇ Partners (BHCA), L.P.
J.P. ▇▇▇▇▇▇ Partners Global Investors, L.P.
J.P. ▇▇▇▇▇▇ Partners Global Investors (Cayman), L.P.
J.P. ▇▇▇▇▇▇ Partners Global Investors (Cayman ) II, L.P.
J.P. ▇▇▇▇▇▇ Partners Global Investors A, L.P.
in each case:
c/o ▇.▇. ▇▇▇▇▇▇ Partners LLC
1221 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Official Notices Clerk
FBO ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
O'Melveny & ▇▇▇▇▇ LLP
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇.▇. Childs Equity Partners III, L.P.
JWC Co-Invest Fund III, LLC
in each case:
c/o ▇.▇. Childs Equity Partners III, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
CDM Investor Group LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: C. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Crunch Equity Voting Trust
c/o Oaktree Capital Management
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Debevoise & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Co-Investment Partners, L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇