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EXHIBIT 2.1
SECURITIES PURCHASE AGREEMENT
BETWEEN
AURORA FOODS INC.
AND
THE PURCHASERS LISTED ON THE SIGNATURE PAGES HERETO
Dated as of September 20, 2000
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SECURITIES PURCHASE AGREEMENT
-----------------------------
SECURITIES PURCHASE AGREEMENT dated as of September 20, 2000 (this
"Agreement"), by and between Aurora Foods Inc., a Delaware corporation (the
"Company"), each of the purchasers set forth on Schedule A attached hereto (each
a "Purchaser" and collectively "Purchasers").
W I T N E S S E T H:
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WHEREAS, the Company proposes, subject to the terms and conditions set
forth herein, to issue and sell to Purchasers 3,750,000 shares of its authorized
by unissued 8% Series A Cumulative Convertible Preferred Stock, par value $0.01
per share (the "Series A Preferred Stock");
WHEREAS, Purchasers desire, subject to the terms and conditions set
forth herein, to purchase such Series A Preferred Stock from the Company; and
WHEREAS, the parties intend that the proceeds of the sale of the
Series A Preferred Stock be used for working capital and other corporate
purposes of the Company;
NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows.
ARTICLE I
DEFINITIONS
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(a) As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Amendment" shall mean the Amendment to the Securityholders Agreement,
to be dated as of the Closing Date, to be entered into by and between the
Company and the parties named therein, in the form attached hereto as Exhibit A.
"Applicable Law" means (a) any United States federal, state, local or
foreign law, statute, rule, regulation, order, writ, injunction, judgment,
decree or permit of any Governmental
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Authority and (b) any rule or listing requirement of any applicable national
stock exchange or listing requirement of any national stock exchange or
Commission recognized trading market on which securities issued by the Company
or any of the Subsidiaries are listed or quoted.
"Business Day" means any day other than a Saturday, a Sunday, or a day
when banks in The City of New York are authorized by Applicable Law to be
closed.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares of corporate stock and (ii) with respect to any
other Person, any and all partnership or other equity interests of such Person.
"Certificate of Designation" means the Certificate of Designation of
the Powers, Preferences and Other Special Rights and Qualifications thereof
relating to the Series A Preferred Stock, in the form attached hereto as
Exhibit B.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and rulings issued thereunder.
"Commission" means the United States Securities and Exchange
Commission.
"Commission Filings" means all reports, registration statements and
other filings filed by the Company with the Commission (and all notes, exhibits
and schedules thereto and all documents incorporated by reference therein) on
and after April 14, 2000.
"Common Stock" has the meaning specified in Section 3.2 hereof.
"Company Disclosure Schedule" shall mean the Company disclosure
schedule delivered by the Company concurrently with the date hereof.
"Consent Solicitation Statement" means the Company's confidential
consent solicitation statement dated August 31, 2000.
"Contract" means any material contract, lease, loan agreement,
mortgage, security agreement, trust indenture, note, bond, instrument, or other
agreement or arrangement (whether written or oral).
"Conversion Shares" means the shares of Common Stock issuable upon the
conversion of the Series A Preferred Stock in accordance with the terms of the
Certificate of Designation.
"Credit Agreement" means the Fifth Amended and Restated Credit
Agreement, dated as of November 1, 1999, by and among the Company, the financial
institutions listed on the signature pages thereof, The Chase Manhattan Bank, as
administrative agent, National Westminster Bank plc, as syndication agent, and
UBS AG, Stamford Branch, as documentation agent, as amended.
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"Effective Date" means the date upon which the following events shall
have occurred pursuant to and as described in the Consent Solicitation
Statement: (i) the Company has received consents from the Noteholders of at
least a majority of the aggregate principal amount of its Notes under each
Indenture to the proposed amendments to certain provisions of the Indentures and
the proposed waiver of certain defaults under such Indentures and (ii) the
Company has entered into the Supplemental Indentures.
"Equity Documents" means this Agreement, the Certificate of
Designation, and the Securityholders Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"GAAP" means United States generally accepted accounting principles,
consistently applied.
"Governmental Authority" means (i) any foreign, Federal, state or
local court or governmental or regulatory agency or authority, (ii) any
arbitration board, tribunal or mediator and (iii) any national stock exchange or
Commission recognized trading market on which securities issued by the Company
or any of the Subsidiaries are listed or quoted.
"Indentures" means each of (i) the Indenture dated July 1, 1998, as
amended to the 8-3/4% senior subordinated notes of the Company, (ii) the
Indenture dated February 10, 1997, as amended to the 9-7/8% senior subordinated
notes of the Company and (iii) the Indenture dated July 1, 1997, as amended to
the 9-7/8% senior subordinated notes of the Company.
"Initial Conversion Price" shall mean the Conversion Price as
determined pursuant to the Certificate of Designation.
"Lien" means any mortgage, pledge, lien, security interest, claim,
restriction, charge or encumbrance of any kind.
"Material Adverse Effect" means a material adverse effect on the
condition (financial or otherwise), business, properties, assets, liabilities,
operations, results of operations or prospects of the Company.
"Notes" mean each of the (i) the 8-3/4% senior subordinated notes of
the Company due 2008 issued pursuant to the indenture dated July 1, 1998, as
amended (ii) the 9-7/8% senior subordinated notes of the Company due 2007 issued
pursuant to the indenture dated February 10, 1997, as amended and (iii) the
9-7/8% senior subordinated notes of the Company due 2007 issued pursuant to the
indenture dated July 1, 1997, as amended.
"Permitted Transferee" means, with respect to any Purchaser, or any
Permitted Transferee of such Purchaser, any Purchaser Affiliate or an Affiliate
of such holder or any successor in interest of any of them, whether by merger,
consolidation, dissolution, liquidation,
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or otherwise, provided, however, that each Permitted Transferee must agree in
writing pursuant to a Permitted Transferee Agreement, in accordance with the
provisions of Section 6.2, to be bound by the terms, and subject to the
conditions, of this Agreement to the same extent, and in the same manner, as
such Purchaser prior to the transfer of any Shares to such Permitted Transferee;
and provided, further, that the transfer of Shares from such Purchaser to such
Permitted Transferee is in compliance with all applicable securities laws.
"Person" means any individual, partnership, corporation, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or agency or political subdivision
thereof, or other entity.
"Plan" means any pension plan, as defined in Section 3(2) of ERISA,
which is maintained or contributed to by (or to which there is an obligation to
contribute of) the Company, a Subsidiary of the Company or an ERISA Affiliate,
and each such plan for the five year period immediately following the latest
date on which the Company, a Subsidiary of the Company or an ERISA Affiliate
maintained, contributed to or had an obligation to contribute to such plan.
"Purchaser Affiliate" means with respect to any Purchaser, (a) any
direct or indirect holder of any equity interests or securities in such
Purchaser (whether limited or general partners, members, stockholders or
otherwise), (b) any Affiliate of such Purchaser, (c) any director, officer,
employee, representative or agent of (i) such Purchaser, (ii) any Affiliate of
such Purchaser, including the management company related to such Purchaser or
(iii) any holder of equity interests or securities referred to in clause (a)
above or (d) any person who is a "control person" of such Purchaser, as defined
under Section 15 of the Securities Act or Section 20 of the Exchange Act.
"Receivables Purchase Agreement" means the Receivables Purchase
Agreement, dated as of April 19, 2000, by and among the Company and the Chase
Manhattan Bank.
"Registrable Securities" shall have the meaning set forth in the
Stockholders Agreement.
"Securities Act" means the Securities Act of 1933, as amended and the
rules and regulations of the Commission promulgated thereunder.
"Series A Preferred Stock" has the meaning set forth in the first
recital to this Agreement. The Series A Preferred Stock has the designation,
powers, preferences and rights, and qualifications, limitations and restrictions
thereof set forth in the Certificate of Designation.
"Securityholders Agreement" means the Securityholders Agreement
attached hereto as Exhibit C, dated as of April 18, 1998, by and between the
Company and the parties named therein, as amended, modified, or supplemental
from time to time.
"subsidiary" means, with respect to any Person (i) a corporation a
majority of whose capital stock with voting power, under ordinary circumstances,
to elect directors is at the
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time, directly or indirectly, owned by such Person, by a subsidiary of such
Person, or by such Person and one or more subsidiaries of such Person, (ii) a
partnership in which such Person or a subsidiary of such Person is, at the date
of determination, a general partner of such partnership and has the power to
direct the policies and management of such partnership or (iii) any other Person
(other than a corporation) in which such Person, a subsidiary of such Person or
such Person and one or more subsidiaries of such Person, directly or indirectly,
at the date of determination thereof, has (A) at least a majority ownership
interest or (B) the power to elect or direct the election of a majority of the
directors or other governing body of such Person.
"Subsidiary" means a subsidiary of the Company.
"Supplemental Indentures" means the supplemental indentures entered
into pursuant to and as described in the Consent Solicitation Statement on or
before the Closing Date between the Company and the parties to the Indentures.
"Transactions" means the transactions contemplated by this Agreement,
the Equity Documents, and the Consent Solicitation Statement.
(b) As used in this Agreement, the following terms shall have the
meanings given thereto in the Sections set forth opposite such terms:
<TABLE>
<CAPTION>
Term Section
---- --------
<S> <C>
Agreement Preamble
Closing 2.2
Closing Date 2.2
Common Stock 3.2
Company Preamble
DGCL 3.2(c)
Governmental Licenses 3.9
Indemnified Party 8.1(c)
indemnified person 8.1(b)
Indemnifying Party 8.1(c)
Information 3.8
Issuance 2.1
Losses 8.1(b)
Notices 8.2
Permitted Transferee Agreement 6.2
Purchaser or Purchasers Preamble
Shares of Series A Preferred Stock First Recital
Share Transfer 6.2
</TABLE>
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ARTICLE II
SALE AND PURCHASE
-----------------
SECTION 2.1. Agreement to Sell and to Purchase; Purchase Price. On
the Closing Date, and upon the terms and subject to the conditions set forth in
this Agreement, the Company shall issue and sell to each Purchaser, and each
Purchaser shall purchase from the Company, the number of shares of Series A
Preferred Stock set forth opposite such Purchaser's name on Schedule A attached
hereto (the "Issuance"), at a price of $4.00 per share and for the aggregate
purchase price set forth opposite such Purchaser's name on Schedule A attached
hereto.
SECTION 2.2. Closing. Subject to the satisfaction or waiver of the
conditions set forth in this Agreement, the purchase and sale of the shares of
Series A Preferred Stock hereunder (the "Closing") shall take place at 10:00
a.m. at the offices of White & Case LLP, 1155 Avenue of the Americas, New York,
New York, on the date the conditions set forth in Article VII have been
satisfied or on such other date as the parties shall mutually agree upon (the
"Closing Date").
At the Closing:
(a) each Purchaser shall deliver:
(i) against delivery of certificates representing the shares of
Series A Preferred Stock being purchased by such Purchaser pursuant to
Section 2.1, an amount equal to the aggregate purchase price of such shares
of Series A Preferred Stock as set forth on Schedule A attached hereto via
wire transfer of immediately available funds to such bank account as the
Company shall designate not later than one Business Days prior to the
Closing Date; and
(ii) a copy of the Amendment executed by the parties named therein.
(b) The Company shall deliver to Purchasers:
(i) against payment of the purchase price therefor as set forth
opposite such Purchaser's name on Schedule A attached hereto, a certificate
or certificates representing the shares of Series A Preferred Stock being
purchased by such Purchaser pursuant to Section 2.1, which shall be in
definitive form and registered in the name of such Purchaser or its nominee
or designee and in a single certificate or in such other denominations as
such Purchaser shall request not later than two Business Days prior to the
Closing Date;
(ii) an opinion of counsel to the Company, dated the Closing Date,
covering such matters as are customarily covered by such opinions, in form
and substance acceptable to Purchasers;
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(iii) an officer's certificate of the Company as contemplated by
Section 7.2(e);
(iv) a certificate of the secretary of the Company setting forth (A) a
copy of the Certificate of Incorporation of the Company and all amendments
thereto (including, without limitation, the Certificate of Designation) as
of a date no more than five days prior to the Closing Date, all certified
by the Secretary of State of the State of Delaware, (B) a copy of the by-
laws of the Company, as in effect on the Closing Date, (C) copies of all
resolutions of the Company authorizing the Transactions; and (D) an
incumbency certificate setting forth the name, title and authorized
signature of each officer of the Company who will execute documents in
connection with the transaction contemplated hereby.
(v) a long-form good standing certificate of the Company issued by the
Secretary of State of the State of Delaware.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
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The Company hereby represents and warrants to each Purchaser on and as
of the Closing Date as follows:
SECTION 3.1. Organization and Good Standing. Each of the Company and
its Subsidiaries is duly organized, validly existing and in good standing in its
state of incorporation and has all requisite corporate power and authority to
own, lease and operate its properties and assets and to carry on its business as
it is now being conducted and as proposed to be conducted. Each of the Company
and its Subsidiaries is duly qualified to transact business as a foreign
corporation and is in good standing in each jurisdiction in which the character
of the properties owned or leased by it or the nature of its business makes such
qualification necessary, except for any such failures to so qualify or be in
good standing that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
SECTION 3.2. Capital Stock. (a) As of September 1, 2000, the
authorized Capital Stock of the Company consists solely of (i) 250,000,000
shares of common stock, $0.01 par value per share (the "Common Stock"), of which
67,114,531 shares are issued and outstanding, and (ii) 25,000,000 shares of
preferred stock, par value $0.01 per share, of which, prior to the issuance of
the shares of Series A Preferred Stock on the Closing Date as contemplated by
this Agreement, no shares have been designated and no shares are issued or
outstanding. Each share of Capital Stock of the Company that will be issued and
outstanding immediately following the Closing, including without limitation the
shares of Series A Preferred Stock, will be duly authorized and validly issued
and fully paid and nonassessable, and the issuance thereof will not have been
subject to any preemptive rights or made in violation of any Applicable Law.
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(b) The Conversion Shares have been duly authorized and validly
reserved for issuance in contemplation of the conversion of the Series A
Preferred Stock and, when issued and delivered in accordance with the terms of
the Certificate of Designation, will have been validly issued and will be fully
paid and nonassessable, and the issuance thereof will not have been subject to
any preemptive rights or made in violation of any Applicable Law.
(c) The holders of the Series A Preferred Stock will, upon issuance
thereof, have the rights set forth in the Certificate of Designation (subject to
the limitations and qualifications set forth therein and under the General
Corporation Law of the State of Delaware (the "DGCL")).
SECTION 3.3. Authorization; Enforceability. The Company has all
necessary power and authority to execute, deliver and perform its obligations
under each of the Equity Documents, and has taken all action necessary to
authorize the execution, delivery and performance by it of each of such Equity
Documents and to consummate the Issuance. No other corporate or stockholder
proceeding on the part of the Company is necessary for such authorization,
execution, delivery and consummation. The Company has duly executed and
delivered this Agreement and, at the Closing, the Company will have duly
executed and delivered each of the other Equity Documents to be executed and
delivered at or prior to Closing. This Agreement and each of the other Equity
Documents, when executed and delivered by the Company, will constitute, a legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with the respective terms and provisions hereof and thereof, except
to the extent that its enforceability may be subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(regardless of whether such enforceability is considered in a proceeding brought
in equity or at law).
SECTION 3.4. No Violation; Consents. (a) The execution, delivery
and performance by the Company of each of the Equity Documents and the
consummation by the Company of the Issuance and the Conversion Shares do not and
will not contravene any Applicable Law. Except for the existing rights of
parties to the Securityholders Agreement and any rights or obligations provided
to holders of Notes pursuant to the consent solicitation in respect thereof, the
execution, delivery and performance by the Company and its Subsidiaries of each
of the Equity Documents and the consummation of the Issuance and the Conversion
Shares (i) will not (A) violate, result in a breach of or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration) under any Contract to which
the Company or any of its Subsidiaries is a party or by which the Company or any
of its Subsidiaries is bound or to which any of its assets is subject, or
(B) result in the creation or imposition of any Lien upon any of the assets of
the Company or any of its Subsidiaries and (ii) will not conflict with or
violate any provision of the certificate of incorporation or by-laws or other
governing documents of the Company or any of its Subsidiaries.
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(b) Except for (i) applicable filings, if any, required by applicable
federal and state securities laws and (ii) filing of the Certificate of
Designation with the Secretary of State of the State of Delaware, in each case,
which shall be made (to the extent required) on or prior to the Closing Date,
no consent, authorization or order of, or filing or registration with, any
Governmental Authority or other Person is required to be obtained or made by the
Company for the execution, delivery and performance of this Agreement or the
consummation by the Company of the Issuance and the Conversion Shares, or for
the execution, delivery and performance by the Company of the Equity Documents.
SECTION 3.5. Commission Filings; Financial Statements. (a) Except
for amendments required to Exchange Act filings as a result of the restatements
of the Company's financial statements described in the Company's financial
statements described in the Company's Annual Report on Form 10-K for the fiscal
year ending December 31, 1999, the Company has timely filed all reports,
registration statements and other filings, together with any amendments or
supplements required to be made with respect thereto, that it has been required
to file with the Commission under the Securities Act and the Exchange Act.
The Company's Annual Report on Form 10-K for the fiscal year ending December 31,
1999, as amended as a result of the restatements of the Company's financial
statements described in the Company's financial statements thereto, and all
Commission Filings filed thereafter have complied in all material respects with
the applicable provisions of the Securities Act and the Exchange Act and did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements made therein,
in the light of the circumstances under which they were made, not misleading.
(b) Each of the historical consolidated financial statements of the
Company (including any related notes or schedules) included in the Commission
Filings filed on or after April 14, 2000 was prepared in accordance with GAAP
(except as may be disclosed therein), and complied in all material respects with
the rules and regulations of the Commission. Such financial statements fairly
present the consolidated financial position of the Company and the Subsidiaries
as of the dates thereof and the consolidated results of operations, cash flows
and changes in stockholders' equity for the periods then ended (subject, in the
case of the unaudited interim financial statements, to normal, recurring year-
end audit adjustments). Except as set forth or reflected in the Commission
Filings filed on or after April 14, 2000 and prior to the date hereof, the
Company does not have any liabilities or obligations of any nature (whether
accrued, absolute, contingent, unasserted or otherwise) that individually or in
the aggregate would be expected to have a Material Adverse Effect.
SECTION 3.6. No Material Adverse Changes. There shall not have
occurred any material change in the capital stock or long-term debt of the
Company or any material adverse change or any development concerning a
prospective adverse change in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of the
Company, other than as has been previously disclosed.
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SECTION 3.7. Private Offering. The offer and sale of the shares of
Series Preferred Stock is exempt from the registration and prospectus delivery
requirements of the Securities Act. Neither the Company, nor anyone acting on
behalf of it, has offered or sold or will offer or sell any shares of Series A
Preferred Stock, or has taken or will take any other action (including, without
limitation, any offering of any securities of the Company under circumstances
that would require, under the Securities Act, the integration of such offering
with the offering and sale of the shares of Series A Preferred Stock), which
would subject the Issuance to the registration provisions of the Securities Act.
SECTION 3.8. Litigation. Except as previously disclosed to the
Purchasers or their representatives, there is no action, suit, proceeding at law
or in equity, or any arbitration or any administrative or other proceeding by or
before (or to the knowledge of the Company any investigation by) any
Governmental Authority, pending, or, to the best knowledge of the Company,
threatened, against or affecting the Company or any of its Subsidiaries, or any
of its properties or rights which could have a Material Adverse Effect or would
be reasonably likely to prevent or materially delay consummation of the
Transactions. There are no such suits, actions, claims, proceedings or
investigations pending or, to the knowledge of the Company, threatened, seeking
to prevent or challenging the Transactions. Except as previously disclosed to
the Purchasers or their representatives, the Company nor any of its Subsidiaries
is subject to any judgment, order or decree entered in any lawsuit or proceeding
which could have a material adverse effect on the ability of the Company or any
of its Subsidiaries to conduct its business as presently conducted or
contemplated to be conducted or would be reasonably likely to prevent or
materially delay consummation of the Transactions.
SECTION 3.9. Permits and Licenses. The Company and its Subsidiaries
have obtained all governmental permits, licenses, franchises and authorizations
required for the Company and its Subsidiaries to conduct their respective
businesses as currently conducted (collectively, "Governmental Licenses"),
except for those of which the failure to obtain would not have a Material
Adverse Effect or prevent or materially delay the consummation of the
Transactions; the Company, except where the failure to so comply would not,
singly or in the aggregate, reasonably be expected to (i) have a Material
Adverse Effect or (ii) prevent or materially delay the consummation of the
Transactions, is in compliance with the terms and conditions of all such
Governmental Licenses; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental Licenses or
the failure of such Governmental Licenses to be in full force and effect would
not reasonably be expected to (i) have a Material Adverse Effect, or (ii)
prevent or materially delay the consummation of the Transactions; and neither
the Company nor any of its Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would reasonably be expected to (i) have a Material Adverse
Effect or (ii) prevent or materially delay the consummation of the Transactions.
There exists no reason or cause that could justify the variation, suspension,
cancellation or termination of any such Governmental Licenses held by the
Company or any of its Subsidiaries with respect to the current or contemplated
operation of their respective businesses, which variation, suspension,
cancellation or termination could reasonably be expected to (i) have a Material
Adverse Effect or (ii) prevent or materially delay the consummation of the
Transactions.
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SECTION 3.10. Title to Assets. The Company and each of its
Subsidiaries has good, valid and marketable title to (i) all of its material
tangible properties and assets (real and personal), including, without
limitation, all the properties and assets reflected in the consolidated balance
sheet as of June 30, 2000, except as indicated in the notes thereto and except
for properties and assets reflected in the consolidated balance sheet as of June
30, 2000 which have been sold or otherwise disposed of in the ordinary course of
business after such date or pursuant to the Receivables Purchase Agreement, and
(ii) all the tangible properties and assets purchased by the Company and any of
its Subsidiaries since June 30, 2000, except for such properties and assets
which have been sold or otherwise disposed of in the ordinary course of business
or pursuant to the Accounts Receivable Facility; and provided further that the
Company has granted a Lien on all of its assets to the senior lenders under the
Credit Agreement.
SECTION 3.11. Investment Company. The Company is not an "investment
company" or "promoter" or "principal underwriter" for an "investment company,"
as such terms are defined in the Investment Company Act of 1940, as amended, and
the rules and regulations thereunder.
SECTION 3.12. State Takeover Statutes. The Company has elected in
its Certificate of Incorporation to not be subject to the provisions of
Section 203 of the DGCL, such election is in effect on the Closing Date and such
election renders inapplicable to this Agreement and the Equity Documents the
provision of Section 203 of the DGCL.
SECTION 3.13. Intellectual Property, etc. Each of the Company and
each of its Subsidiaries owns all patents, trademarks, permits, service marks,
trade names, technology copyrights, licenses, franchises and formulas, or other
rights with respect to the foregoing, and has obtained assignments of all leases
and other rights of whatever nature, and has in full force and effect all
accreditations and certifications, reasonably necessary for the conduct of its
business, without any known conflict with the rights of others which, or the
failure to obtain which, as the case may be, would result in a Material Adverse
Effect.
SECTION 3.14. Compliance with Statutes, etc. Except as disclosed in
the Consent Solicitation Statement, each of the Company and each of its
Subsidiaries is in compliance with all applicable statutes, regulations, rules
and orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business and the
ownership of its property, except such non-compliance as is not likely to,
individually or in the aggregate, have a Material Adverse Effect.
SECTION 3.15. Labor Relations. Neither the Company nor any of its
Subsidiaries is engaged in any unfair labor practice that could reasonably be
expected to have a Material Adverse Effect. There is (i) no unfair labor
practice complaint pending against the Company or any of its Subsidiaries or
threatened against any of them, before the National Labor Relations Board, and
no grievance or arbitration proceeding arising out of or under any collective
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bargaining agreement is so pending against the Company or any of its
Subsidiaries or threatened against any of them, (ii) no strike, labor dispute,
slowdown or stoppage pending against the Company or any of its Subsidiaries or
threatened against the Company or any of its Subsidiaries and (iii) no union
representation question existing with respect to the employees of the Company or
any of its Subsidiaries and no union organizing activities are taking place,
except (with respect to any matter specified in clause (i), (ii) or (iii) above,
either individually or in the aggregate) such as is not reasonably likely to
have a Material Adverse Effect.
SECTION 3.16. Tax Returns and Payments. Each of the Company and each
of its Subsidiaries has filed all federal income tax returns and all other
material tax returns, domestic and foreign, required to be filed by it and has
paid all material taxes and assessments payable by it which have become due,
except for those contested in good faith and adequately disclosed and fully
provided for on the financial statements of the Company and its Subsidiaries in
accordance with generally accepted accounting principles. Each of the Company
and each of its Subsidiaries has at all times paid, or have provided adequate
reserves (in the good faith judgment of the management of the Company) for the
payment of, all federal, state and foreign income taxes applicable for all prior
fiscal years and for the current fiscal year to date. There is no material
action, suit, proceeding, investigation, audit, or claim now pending or, to the
knowledge of the Company or any of its Subsidiaries, threatened by any authority
regarding any taxes relating to the Company or any of its Subsidiaries. Neither
the Company nor any of its Subsidiaries has entered into an agreement or waiver
or been requested to enter into an agreement or waiver extending any statute of
limitations relating to the payment or collection of taxes of the Company or any
of its Subsidiaries, or is aware of any circumstances that would cause the
taxable years or other taxable periods of the Company or any of its Subsidiaries
not to be subject to the normally applicable statute of limitations.
SECTION 3.17. No Default. Upon receipt of the consents referred to
in Section 7.1(d) and Section 7.2(d), neither the Company nor any of its
Subsidiaries is in default under any other material debt agreements, including
but not limited to the Indentures and the Credit Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF EACH PURCHASER
-----------------
Each Purchaser hereby severally, and not jointly, represents and
warrants to the Company, as to itself and as to no other person, as of the date
hereof and as of the Closing Date as follows:
SECTION 4.1. Investment Intent. The Purchaser is (i) an "accredited
investor" as defined in Regulation D of the Securities Act and (ii) acquiring
the Purchased Securities to be purchased by it pursuant to Section 2 hereof for
investment and not with a view to the distribution thereof.
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SECTION 4.2. Authorization. This Agreement and the Equity Documents
to which the Purchaser is a party have been executed by such Purchaser or by a
duly authorized Person on its behalf with full power and authority and, in the
case of non-individual Purchasers, the execution, delivery and performance
hereof and thereof have been duly authorized by all necessary corporate
proceedings.
SECTION 4.3. Enforceability. Each of the Purchasers hereby
represents that the execution and delivery by it of this Agreement and each of
the Equity Documents to which it is a party will result in legally binding
obligations enforceable against it in accordance with the respective terms and
provisions hereof and thereof.
SECTION 4.4. Private Placement. (a) Such Purchaser understands that
(i) the offering and sale of the shares of Series A Preferred Stock in the
Issuance by the Company is intended to be exempt from registration under the
Securities Act pursuant to Section 4(2) and Regulation D thereof and (ii) there
is no existing public or other market for the shares of Series A Preferred
Stock.
(b) Such Purchaser (either alone or together with its advisors) has
sufficient knowledge and experience in financial and business matters so as to
be capable of evaluating the merits and risks of its investment in the shares of
Series A Preferred Stock and is capable of bearing the economic risks of such
investment.
(c) Such Purchaser is acquiring the shares of Series A Preferred Stock
to be acquired hereunder (and will acquire the Conversion Shares) for its own
account, for investment and not with a view to the public resale or distribution
thereof, in violation of any securities law.
(d) Such Purchaser understands that the shares of Series A Preferred
Stock will be issued in a transaction exempt from the registration or
qualification requirements of the Securities Act and applicable state securities
laws, and that such securities must be held indefinitely unless a subsequent
disposition thereof is registered or qualified under the Securities Act and such
laws or is exempt from such registration or qualification.
(e) Such Purchaser (A) has been furnished with or has had full access
to all of the information that it considers necessary or appropriate to make an
informed investment decision with respect to the shares of Series A Preferred
Stock and that it has requested from the Company, (B) has had an opportunity to
discuss with management of the Company the intended business and financial
affairs of the Company and to obtain information (to the extent the Company
possessed such information or could acquire it without unreasonable effort or
expense) necessary to verify any information furnished to it or to which it had
access and (C) can bear the economic risk of (x) an investment in the shares of
Series A Preferred Stock indefinitely and (y) a total loss in respect of such
investment, has such knowledge and experience in business and financial matters
so as to enable it to understand and evaluate the risks of and form an
investment decision with respect to its investment in the shares of Series A
Preferred Stock and to protect its own interest in connection with such
investment; it being understood that nothing set forth in this
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Section 4.4(e) shall affect the representations, warranties or other obligations
of the Company, or the rights and remedies of such Purchaser, under this
Agreement in any way whatsoever.
ARTICLE V
COVENANTS APPLICABLE TO THE COMPANY WHILE THE SERIES A PREFERRED STOCK
AND/OR REGISTRABLE SECURITIES ARE HELD BY THE PURCHASERS
The Company covenants that, while any of the Series A Preferred Sock
(or any shares of Common Stock into which the Series A Preferred Stock are
convertible) are held by the Purchasers or any assignee thereof, the Company
will comply with the following provisions:
SECTION 5.1. Reservation of Shares. The Company shall:
(i) cause to be authorized and reserve and keep available at all times
during which any of the shares of Series A Preferred Stock remain
outstanding, free from preemptive rights, out of its treasury stock or
authorized but unissued shares of Capital Stock, or both, solely for the
purpose of effecting the conversion of the shares of Series A Preferred
Stock pursuant to the terms of the Certificate of Designation, sufficient
shares of Common Stock to provide for the issuance of the maximum number of
shares issuable upon conversion of outstanding shares of Series A Preferred
Stock;
(ii) issue and cause the transfer agent to deliver such shares of
Common Stock as required upon conversion of the shares of Series A
Preferred Stock, and take all actions necessary to ensure that all such
shares will, when issued and paid for pursuant to the conversion of the
shares of Series A Preferred Stock, be duly and validly issued, fully paid
and nonassessable; and
(iii) if any shares of Common Stock reserved for the purpose of
issuance upon conversion of the shares of Series A Preferred Stock require
registration with or approval of any Governmental Authority under any
Applicable Law before such shares may be validly issued or delivered,
secure such registration or approval, as the case may be, and maintain such
registration or approval in effect so long as so required.
SECTION 5.2. Use of Proceeds. The Company shall use the proceeds
from the Issuance for working capital and other corporate purposes of the
Company.
SECTION 5.3. Listing of Shares. The Company shall cause the
Conversion Shares to be listed or otherwise eligible for trading on the New York
Stock Exchange or such other national securities exchange on which constitutes
the principal trading U.S. market for the Common Stock.
SECTION 5.4. Periodic Information. For so long as the shares of
Series A Preferred Stock or any Conversion Shares are outstanding the Company
shall file all reports
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required to be filed by the Company under Section 13 or 15(d) of the Exchange
Act and shall provide, on request, the holders of the shares of Series A
Preferred Stock and the Conversion Shares and prospective purchasers of such
shares with the information specified in Rule 144A(d) under the Securities Act.
SECTION 5.5. Legends. So long as applicable, each certificate
representing any portion of the shares of Series A Preferred Stock, the
Conversion Shares shall be stamped or otherwise imprinted with a legend in the
following form (in addition to any legend required under applicable state
securities laws):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. SUCH SHARES
MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OTHER THAN
PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS."
After the above requirement for a legend is no longer applicable because the
shares of Series A Preferred Stock are freely transferable under the Securities
Act, the Company shall remove such legend upon request from a holder of such
shares of Series A Preferred Stock, if outside counsel for such holder
reasonably determines that the transfer of such shares of Series A Preferred
Stock is no longer restricted by the Securities Act and outside counsel for the
Company reasonably concurs in such determination.
SECTION 5.6. Conversion Price. The Company shall give prompt Notice
to the Purchasers of the determination of the Initial Conversion Price.
SECTION 5.7. Registration Rights. The Company acknowledges and
agrees that the parties intend that the Common Stock issued upon conversion of
the Series A Preferred Stock constitute "Registrable Securities" for purposes of
the Securityholders Agreement. In the event that the Amendment proves to be
ineffective for any reason, the Company agrees that to the maximum extent
permitted under applicable law, the Holders shall have registration rights with
respect to the shares of Common Stock issuable upon conversion of the Series A
Preferred Stock as nearly equivalent to those granted to Registrable Securities
under the Securityholders Agreement as is possible.
SECTION 5.8. Notice to Holders. The Company shall mail notice to
holders of the Common Stock of the Company pursuant to Paragraph 312.05 of the
New York Stock Exchange Listed Company Manual within two days after the Closing
Date and shall give prompt Notice to the Purchasers that such notice has been
mailed.
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ARTICLE VI
COVENANTS OF EACH PURCHASER
---------------------------
SECTION 6.1. Agreement to Take Necessary and Desirable Actions.
Each Purchaser shall subject to the satisfaction of the conditions set forth in
Section 7.2, execute and deliver each of the Equity Documents to which it is a
party.
SECTION 6.2. Restrictions on Transfer. No Purchaser shall sell,
assign, transfer, pledge, hypothecate, deposit in a voting trust or otherwise
dispose of any portion of the shares of Series A Preferred Stock or the
Conversion Shares (any such disposition, a "Share Transfer"), other than (a) to
a Permitted Transferee of such Purchaser that has agreed in writing (each, a
"Permitted Transferee Agreement") to be bound by the terms and provisions of
this Section 6.2 to the same extent that such Purchaser would be bound if it
beneficially owned the shares of Series A Preferred Stock transferred to such
Permitted Transferee or (b) (i) in any transaction in compliance with Rule 144
under the Securities Act or any successor rule or regulation, (ii) in a
transaction exempt from the registration requirements of the Securities Act or
(iii) pursuant to a registration statement. Such Purchaser shall promptly
notify the Company of any Share Transfer to a Permitted Transferee of such
Purchaser, which notification shall include a Permitted Transferee Agreement
executed by each Permitted Transferee of such Purchaser to whom any shares of
Series A Preferred Stock have been transferred.
SECTION 6.3. Conversion Agreement. Each Purchaser agrees that,
notwithstanding any provision of the Certificate of Designation, it will not
convert any share of Series A Preferred Stock prior to ten days after the
Company mails notice to the holders of the Common Stock of the Company pursuant
to Paragraph 312.05 of the New York Stock Exchange Listed Company Manual.
ARTICLE VII
CONDITIONS PRECEDENT TO CLOSING
-------------------------------
SECTION 7.1. Conditions to the Company's Obligations. The
obligations of the Company with respect to Purchasers required to be performed
on the Closing Date shall be subject to the satisfaction or waiver in writing,
at or prior to the Closing, of the following conditions:
(a) The representations and warranties of each Purchaser contained in
this Agreement which are qualified by any "materiality", "material adverse
effect" or any similar qualifier shall be true and correct in all respects
and the representations and warranties of such Purchaser which are not so
qualified shall be true and correct in all material respects, in each case
on and as of the date hereof and on and as of the Closing Date, as if made
on and as of the Closing Date.
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(b) Each of the Equity Documents to which a Purchaser is a party shall
have been executed and delivered by such Purchaser. Each Purchaser shall
have performed in all material respects all obligations and agreements, and
complied in all material respects with all covenants contained in this
Agreement and the Equity Documents to be performed and complied with by
such Purchaser at or prior to the Closing Date.
(c) No provision of any Applicable Law, injunction, order or decree of
any Governmental Entity shall be in effect which has the effect of making
the Transactions illegal or shall otherwise restrain or prohibit the
consummation of the Transactions.
(d) The Company shall have received the required consent of the senior
lenders under the Credit Agreement to the Transactions.
(e) All approvals of the disinterested directors of the Company and
any approvals and consents of all court, governmental, agencies and third-
parties necessary in connection with the issuance of the Series A Preferred
Stock shall have been received and shall be in full force and effect and
all applicable waiting periods shall have expired without any action being
taken by any applicable authority.
SECTION 7.2. Conditions to Purchaser's Obligations. The obligations
of each Purchaser required to be performed on the Closing Date shall be subject
to the satisfaction or waiver in writing of the following conditions:
(a) On or prior to the Closing Date, the representations and
warranties of the Company contained in this Agreement which are qualified
by any "materiality", "material adverse effect" or any similar qualifier
shall be true and correct in all respects and the representations and
warranties of the Company which are not so qualified shall be true and
correct in all material respects, in each case on and as of the date hereof
and on and as of the Closing Date, as if made on and as of the Closing
Date.
(b) On or prior to the Closing Date, no provision of any Applicable
Law, injunction, order or decree of any Governmental Entity shall be in
effect which has the effect of making the Transactions illegal or shall
otherwise restrain or prohibit the consummation of the Transactions.
(c) On or prior to the Closing Date, the Company shall have filed the
Certificate of Designation with the Secretary of State of the State of
Delaware and the Certificate of Designation shall have been accepted for
filing.
(d) On or prior to the Closing Date, the Effective Date shall have
occurred under and as defined in the Consent Solicitation Statement.
(e) On or prior to the Closing Date, the Company shall have delivered
to Purchaser a certificate executed by it or on its behalf by duly
authorized representative,
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dated the Closing Date, to the effect that each of the conditions specified
in this Section 7.2 (other than 7.2(h) or (j)) has been satisfied.
(f) On or prior to the Closing Date, each of the Equity Documents
shall have been executed and delivered by the Company, and each of the
Equity Documents shall be in full force and effect and no term or condition
thereof shall have been amended, modified or waived except with prior
written consent of the Purchasers. All covenants, agreements and
conditions contained in the Equity Documents where are to be performed or
complied with by the Company on or prior to the Closing Date shall have
been performed or complied with in all material respects.
(g) On or prior to the Closing Date, Purchasers shall have received an
opinion of counsel to the Company, dated the Closing Date, and addressed to
Purchasers, in form and substance reasonably acceptable to Purchasers.
(h) Except as set forth on the Company Disclosure Schedules attached
hereto, on or prior to the Closing Date, there shall not have occurred any
event, circumstance, condition, fact, effect or other matter which the
Purchasers reasonably believe has had or could reasonably be expected to
have a Material Adverse Effect or any development concerning a prospective
material adverse change (x) on the condition (financial or otherwise),
business, shareholders' equity, the Issuance, properties, assets,
liabilities, operations, results of operations or prospects of the Company
and its Subsidiaries, taken as a whole or (y) on the ability of the Company
to perform on a timely basis any material obligation under this Agreement
or to consummate the Issuance contemplated hereby.
(i) On or prior to the Closing Date, there shall not have occurred any
material change in the Capital Stock or long-term debt of the Company and
its Subsidiaries, taken as a whole.
(j) All matters relating to the Equity Documents, the Consent
Solicitation Statement and the definitive documentation contemplated hereby
or thereby, and the transactions contemplated hereby or thereby, shall be
reasonably satisfactory to the Purchasers in all respects.
(k) All approvals of the disinterested directors of the Company and
any approvals and consents of all court, governmental, agencies and third-
parties necessary in connection with the issuance of the Series A Preferred
Stock shall have been received and shall be in full force and effect and
all applicable waiting periods shall have expired without any action being
taken by any applicable authority.
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ARTICLE VIII
MISCELLANEOUS
-------------
SECTION 8.1. Survival; Indemnification. (a) All representations,
warranties and covenants contained in this Agreement or in any certificate
delivered in connection with the Closing shall survive the Closing for 18 months
(except covenants that are required to be performed after the Closing Date and
the representations contained in Sections 3.1, 3.2, 3.3 and 3.4, which shall
survive indefinitely). Notwithstanding the foregoing, with respect to claims
asserted pursuant to this Section 8.1 before the expiration of the applicable
representation or warranty, such claims shall survive until the date they are
finally adjudicated or otherwise resolved.
(b) The Company agrees to indemnify and hold harmless each Purchaser,
each Purchaser Affiliate and each of their respective representatives, heirs,
successors and assigns (each an "indemnified person") on an after-tax basis,
from and against (and to reimburse each indemnified person as the same are
incurred) any and all losses (including, but not limited to, impairment of the
value of the shares of Series A Preferred Stock as of the date such loss first
becomes known) claims, damages, liabilities, costs and expenses (collectively,
"Losses") to which any indemnified person may become subject or which any
indemnified person may incur based upon, arising out of, or in connection with
(i) a breach of any representation or warranty of this Agreement by the Company,
(ii) any breach of any covenant or agreement contained herein by the Company or
(iii) any claim, litigation, investigation or proceeding brought by or on behalf
of any Person other than the Company relating to the Issuance, and to reimburse
each indemnified person upon demand for any reasonable legal or other reasonable
out of pocket expenses incurred in connection with investigating or defending
any of the foregoing, provided that the aggregate liability of the Company for
indemnification claims under this Section 8 shall not exceed the aggregate
purchase price hereunder.
(c) If a Person entitled to indemnity hereunder (an "Indemnified
Party") asserts that the Company (the "Indemnifying Party") has become obligated
to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action,
investigation, claim or proceeding is begun, made or instituted as a result of
which the Indemnifying Party may become obligated to the Indemnified Party
hereunder, the Indemnified Party shall notify the Indemnifying Party promptly
and shall cooperate with the Indemnifying Party, at the Indemnifying Party's
expense, to the extent reasonably necessary for the resolution of such claim or
in the defense of such suit, action or proceedings, including making available
any information, documents and things in the possession of the Indemnified
Party. Notwithstanding the foregoing notice requirement, the right to
indemnification hereunder shall not be affected by any failure to give, or delay
in giving, notice unless, and only to the extent that, the rights and remedies
of the Indemnifying Party shall have been actually and materially prejudiced as
a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after the
Indemnifying Party has provided each Indemnified Party with a written notice of
its acceptance of liability
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under this Section 8.1, as between such Indemnified Party and the Indemnifying
Party, the Indemnifying Party shall have the right to investigate, defend,
settle or otherwise handle, with the aforesaid cooperation, any claim, suit,
action or proceeding brought by a third party in such manner as the Indemnifying
Party may in its sole discretion reasonably deem appropriate; provided, that
(i) counsel retained by the Indemnifying Party is reasonably satisfactory to the
Indemnified Party and (ii) the Indemnifying Party will not consent to any
settlement or entry of judgment imposing any obligations on any other party
hereto other than financial obligations for which such party will be indemnified
hereunder, unless such party has consented in writing to such settlement or
judgment (which consent may be given or withheld in its sole discretion) and
(iii) the Indemnifying Party will not consent to any settlement or entry of
judgment unless, in connection therewith, the Indemnifying Party obtains a full
and unconditional release of the Indemnified Party from all liability with
respect to such suit, action, investigation claim or proceeding. Notwithstanding
the Indemnifying Party's election to assume the defense or investigation of such
claim, action or proceeding, the Indemnified Party shall have the right to
employ separate counsel and to participate in the defense or investigation of
such claim, action or proceeding, which participation shall be at the expense of
the Indemnifying Party, if (i) on the advice of counsel to the Indemnified Party
use of counsel of the Indemnifying Party's choice could be expected to give rise
to a material conflict of interest, (ii) the Indemnifying Party shall not have
employed counsel reasonably satisfactory to the Indemnified Party to represent
the Indemnified Party within a reasonable time after notice of the assertion of
any such claim or institution of any such action or proceeding, (iii) if the
Indemnifying Party shall authorize the Indemnified Party to employ separate
counsel at the Indemnifying Party's expense or (iv) such action shall seek
relief other than monetary damages against the Indemnified Party.
(e) The Company and the Purchasers agree that any payment of Losses
made hereunder will be treated by the parties on their tax returns as an
adjustment to the Purchase Price. If, notwithstanding such treatment by the
parties, a final determination with respect to the Indemnified Party or any of
its affiliates causes any such payment not to be treated as an adjustment to
Purchase Price, then the Indemnifying Party shall indemnify the Indemnified
Party for any taxes payable by the Indemnified Party or any subsidiary by reason
of the receipt of such payment (including any payments under this 8.1(e)),
determined at an assumed marginal tax rate equal to the highest marginal tax
rate then in effect for corporate taxpayers in the relevant jurisdiction.
(f) The obligations of the Indemnifying Party under this Section 8.1
shall survive the transfer or conversion of the shares of Series A Preferred
Stock and the Common Stock issued upon the conversion or exercise thereof, or
the closing or termination of any Equity Document. This Section 8 shall be the
sole and exclusive remedy for any and all Losses sustained or incurred by the
Purchasers or their respective successors and assigns (whether for claims based
in contract, tort or otherwise but excluding any Losses arising from a breach of
Sections 5.1, 5.3, 5.4 or 5.7 or the Securityholders Agreement) resulting from
or relating to any misrepresentation, breach of warranty or failure to perform
any covenant or agreement contained in this Agreement or otherwise relating to
this Agreement.
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SECTION 8.2. Notices. All notices, demands, requests, consents,
approvals or other communications (collectively, "Notices") required or
permitted to be given hereunder or which are given with respect to this
Agreement shall be in writing and shall be personally served, delivered by
reputable air courier service with charges prepaid, or transmitted by hand
delivery, telegram, telex or facsimile, addressed as set forth below, or to such
other address as such party shall have specified most recently by written
notice. Notice shall be deemed given on the date of service or transmission if
personally served or transmitted by telegram, telex or facsimile. Notice
otherwise sent as provided herein shall be deemed given on the next business day
following delivery of such notice to a reputable air courier service. Notices
shall be delivered as follows:
If to the Company:
Aurora Foods Inc.
1000 St. Louis Union Station
Suite 300
St. Louis, Missouri 63103
Attn: Christopher T. Sortwell
Telephone: (314) 241-0303
Fax: (314) 802-4142
with a copy to:
Ropes & Gray
One International Place
Boston, Massachusetts 02110-2624
Attn: Lauren Norton, Esq.
Telephone: (617) 951-7390
Fax: (617) 951-7050
if to any Purchaser, to such Purchaser at its address as set forth on
Schedule A:
with a copy to:
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
Attn: David E. Joyce, Esq.
Telephone: (212) 819-8332
Fax: (212) 354-8113
SECTION 8.3. Governing Law. This Agreement shall be governed by,
interpreted under, and construed in accordance with the laws of the State of
New York, regardless of the laws that might otherwise govern under applicable
principles of conflicts of law thereof.
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SECTION 8.4. Termination. (a) This Agreement may be terminated as
between the Company and the Purchasers (i) at any time prior to the Closing Date
by mutual written agreement of the Company and Purchaser, or (ii) if the Closing
shall not have occurred on or prior to December 31, 2000, by either the Company
or the Purchasers, at any time after December 31, 2000, provided that the right
to terminate this Agreement under this Section 8.4(a)(ii) shall not be available
to any party whose failure to fulfill any obligation under this Agreement was
the cause of or resulted in the failure of the Closing to occur on or before
such date. Any party desiring to terminate this Agreement pursuant to clause
8.4(a)(ii) shall promptly give notice of such termination to the other party.
(b) If this Agreement is terminated as between the Company and
Purchaser, as permitted by Section 8.4(a), such termination shall be without
liability of any party (or any stockholder, director, officer, partner,
employee, agent, consultant or representative of such party) to any other party
to this Agreement; provided, that if such termination shall result from the
willful (a) failure of any party to fulfill a condition to the performance of
the obligations of the other party, (b) failure to perform a covenant of this
Agreement or (c) breach by any party hereto of any representation or warranty
contained herein, such failing or breaching party shall be fully liable for any
and all losses incurred or suffered by the other party as a result of such
failure or breach. The provisions of Sections 8.2, 8.3, this Section 8.4,
Sections 8.5, 8.8, 8.10, 8.11, 8.12, 8.13, 8.15, 8.17, and 8.18 shall survive
any termination hereof pursuant to Section 8.4(a).
SECTION 8.5. Entire Agreement. As between the Company and Purchaser
this Agreement and the Equity Documents (including all agreements entered into
pursuant hereto and thereto and all certificates and instruments delivered
pursuant hereto and thereto) constitute the entire agreement of the parties with
respect to the subject matter hereof and supersede all prior and contemporaneous
agreements, representations, understandings, negotiations and discussions
between the parties, whether oral or written, with respect to the subject matter
hereof.
SECTION 8.6. Modifications and Amendments. No amendment,
modification or termination of this Agreement as between the Company and
Purchaser shall be binding unless executed in writing by the Company and each
Purchaser intending to be bound thereby.
SECTION 8.7. Waivers and Extensions. Any party to this Agreement may
waive any condition, right, breach or default that such party has the right to
waive, provided that such waiver will not be effective against the waiving party
unless it is in writing, is signed by such party, and specifically refers to
this Agreement. Waivers may be made in advance or after the right waived has
arisen or the breach or default waived has occurred. Any waiver may be
conditional. No waiver of any breach of any agreement or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach thereof
nor of any other agreement or provision herein contained. No waiver or
extension of time for performance of any obligations or acts shall be deemed a
waiver or extension of the time for performance of any other obligations or
acts.
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SECTION 8.8. Titles and Headings. Titles and headings of sections of
this Agreement are for convenience only and shall not affect the construction of
any provision of this Agreement.
SECTION 8.9. Exhibits and Schedules. Each of the exhibits and
schedules referred to herein and attached hereto is an integral part of this
Agreement and is incorporated herein by reference.
SECTION 8.10. Expenses. (a) All reasonable costs and expenses
incurred by the Purchasers in connection with this Agreement and the Equity
Documents and the transactions contemplated hereby or thereby shall be paid by
the Company.
(b) All reasonable costs and expenses incurred by the Purchasers in
connection with the enforcement of this Agreement and the transactions
contemplated by this Agreement shall be paid by the Company.
SECTION 8.11. Assignment; No Third Party Beneficiaries. This
Agreement and the rights, duties and obligations hereunder may not be assigned
or delegated by the Company without the prior written consent of each Purchaser,
and may not assigned or delegated by a Purchaser without the Company's prior
written consent except that a Purchaser may assign any or all of its rights and
obligations under this Agreement to any one or more of its Affiliates. Any
assignment or delegation of rights, duties or obligations hereunder made by the
Company without the prior written consent of each Purchaser, shall be void and
of no effect. This Agreement and the provisions hereof shall be binding upon
and shall inure to the benefit of each of the parties and their respective
successors and permitted assigns. This Agreement is not intended to confer any
rights or benefits on any Persons other than the parties hereto, except as
expressly set forth in Section 8.1, this Section 8.11 or Section 8.17.
SECTION 8.12. Severability. This Agreement shall be deemed
severable, and the invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of this Agreement or of
any other term or provision hereof. Furthermore, in lieu of any such invalid or
unenforceable term or provision, the parties hereto intend that there shall be
added as a part of this Agreement a provision as similar in terms to such
invalid or unenforceable provision as may be possible and be valid and
enforceable.
SECTION 8.13. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
SECTION 8.14. Further Assurances. As between the Company and
Purchasers, each party hereto, upon the request of any other party hereto, shall
do all such further acts and execute, acknowledge and deliver all such further
instruments and documents as may be necessary or desirable to carry out the
transactions contemplated by this Agreement, including, in the case of the
Company, such acts, instruments and documents as may be necessary or desirable
to convey and transfer to Purchasers the shares of Series A Preferred Stock to
be purchased by them hereunder.
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SECTION 8.15. Remedies Cumulative. The remedies provided herein
shall be cumulative and shall not preclude the assertion by any party hereto of
any other rights or the seeking of any remedies against the other party hereto.
SECTION 8.16. Specific Performance. The parties hereto agree that
the remedy at law for any breach of this Agreement may be inadequate, and that
as between the Company and Purchasers any party by whom this Agreement is
enforceable shall be entitled to specific performance in addition to any other
appropriate relief or remedy. Such party may, in its sole discretion, apply to
a court of competent jurisdiction for specific performance or injunctive or such
other relief as such court may deem just and proper in order to enforce this
Agreement as between the Company and Purchasers or prevent any violation hereof,
and, to the extent permitted by applicable law, each party waives any objection
to the imposition of such relief.
SECTION 8.17. No Purchaser Affiliate Liability. No Purchaser
Affiliate shall have any liability or obligation of any nature whatsoever in
connection with or under this Agreement or the transactions contemplated hereby.
SECTION 8.18. Several Liability. All obligations of the Purchasers
hereunder shall be several and not joint. If any Purchaser fails to purchase
shares of Series A Preferred Stock hereunder or otherwise defaults on any
liability or obligation under this Agreement, no other Purchaser will have any
obligation to purchase any such shares of Series A Preferred Stock or take or
refrain from taking any action on account of such defaulting Purchaser.
-24-
<PAGE>
[SIGNATURE PAGES FOLLOW]
-25-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
AURORA FOODS INC.
By: /s/ Christopher T. Sortwell
---------------------------------
Title: CFO, Secretary, and E.V.P.
<PAGE>
MCCOWN DE LEEUW & CO. III, L.P.
By: MDC Management Company III, L.P.,
Its General Partner
By: /s/ David De Leeuw
----------------------
Title: Managing Director
MCCOWN DE LEEUW & CO. III (EUROPE), L.P.
By: MDC Management Company III, L.P.,
Its General Partner
By: /s/ David De Leeuw
----------------------
Title: Managing Director
MCCOWN DE LEEUW & CO. III (ASIA), L.P.
By: MDC Management Company IIIA, L.P.,
Its General Partner
By: /s/ David De Leeuw
----------------------
Title: Managing Director
<PAGE>
GAMMA FUND LLC
By: /s/ David De Leeuw
----------------------
Title: Managing Member
<PAGE>
MCCOWN DE LEEUW & CO. IV, L.P.
By: MDC Management Company IV, L.P.,
Its General Partner
By: /s/ David De Leeuw
----------------------
Title: Managing Director
<PAGE>
DELTA FUND LLC
By: /s/ David De Leeuw
----------------------
Title: Managing Member
<PAGE>
MCCOWN DE LEEUW & CO. IV Associates, L.P.
By: MDC Management Company IV, L.P.,
Its General Partner
By: /s/ David De Leeuw
----------------------
Title: Managing Member
<PAGE>
FENWAY PARTNERS CAPITAL FUND II, L.P.
By: Fenway Partners II, LLC,
Its General Partner
By: Fenway Partners Management, Inc.,
Its General Partner
By: /s/ Andrea Geisser
---------------------
Title: Vice President
<PAGE>
UBS Capital LLC
By: /s/ Marc Unger
-----------------------
Title: Attorney in Fact
By: /s/ Michael Greene
-----------------------
Title: Attorney in Fact
<PAGE>
Schedule A
----------
PURCHASERS
----------
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------
Shares of Series A
------------------
Purchaser Address Preferred Stock Purchase Price
--------- ------- --------------- --------------
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
McCown De Leeuw & Co. III, L.P. 3000 Sand Hill Road 621,919 $ 2,487,676
Building 3, Suite 290
Menlo Park, CA 94025
----------------------------------------------------------------------------------------------------------------------
McCown De Leeuw & Co. III 3000 Sand Hill Road 44,152 $ 176,608
(Europe), L.P. Building 3, Suite 290
Menlo Park, CA 94025
----------------------------------------------------------------------------------------------------------------------
McCown De Leeuw & Co. III 3000 Sand Hill Road 10,347 $ 41,388
(Asia), L.P. Building 3, Suite 290
Menlo Park, CA 94025
----------------------------------------------------------------------------------------------------------------------
Gamma Fund LLC 3000 Sand Hill Road 13,453 $ 53,812
Building 3, Suite 290
Menlo Park, CA 94025
----------------------------------------------------------------------------------------------------------------------
McCown De Leeuw & Co. IV, L.P. 3000 Sand Hill Road 620,633 $ 2,482,532
Building 3, Suite 290
Menlo Park, CA 94025
----------------------------------------------------------------------------------------------------------------------
Delta Fund LLC 3000 Sand Hill Road 10,051 $ 40,204
Building 3, Suite 290
Menlo Park, CA 94025
----------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Schedule A
Page 2
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------
Shares of Series A
------------------
Purchaser Address Preferred Stock Purchase Price
--------- ------- --------------- --------------
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
McCown De Leeuw & Co. IV 3000 Sand Hill Road 13,087 $ 52,348
Associates, L.P. Building 3, Suite 290
Menlo Park, CA 94025
----------------------------------------------------------------------------------------------------------------------
Fenway Partners Capital c/o Fenway Partners, Inc. 1,967,193 $ 7,868,772
Fund II, L.P. 152 West 57th Street
59th Floor
New York, NY 10019
----------------------------------------------------------------------------------------------------------------------
UBS Capital LLC 299 Park Avenue 449,165 $ 1,796,660
New York, NY 10171
----------------------------------------------------------------------------------------------------------------------
Total 3,750,000 $15,000,000
========= ===========
----------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
DEFINITIONS........................................................... 1
ARTICLE II
SALE AND PURCHASE.......................................................... 6
SECTION 2.1. Agreement to Sell and to Purchase; Purchase Price....... 6
SECTION 2.2. Closing................................................. 6
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.............................. 7
SECTION 3.1. Organization and Good Standing.......................... 7
SECTION 3.2. Capital Stock........................................... 7
SECTION 3.3. Authorization; Enforceability........................... 8
SECTION 3.4. No Violation; Consents.................................. 8
SECTION 3.5. Commission Filings; Financial Statements................ 9
SECTION 3.6. No Material Adverse Changes............................. 9
SECTION 3.7. Private Offering........................................ 9
SECTION 3.8. Litigation.............................................. 10
SECTION 3.9. Permits and Licenses.................................... 10
SECTION 3.10. Title to Assets........................................ 10
SECTION 3.11. Investment Company..................................... 11
SECTION 3.12. State Takeover Statutes................................ 11
SECTION 3.13. Intellectual Property, etc............................. 11
SECTION 3.14. Compliance with Statutes, etc.......................... 11
SECTION 3.15. Labor Relations........................................ 11
SECTION 3.16. Tax Returns and Payments............................... 12
SECTION 3.17. No Default............................................. 12
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF EACH PURCHASER........................... 12
SECTION 4.1. Investment Intent....................................... 12
</TABLE>
(i)
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 4.2. Authorization........................................... 12
SECTION 4.3. Enforceability.......................................... 13
SECTION 4.4. Private Placement....................................... 13
ARTICLE V
COVENANTS APPLICABLE TO THE COMPANY WHILE THE SERIES A PREFERRED STOCK
AND/OR REGISTRABLE SECURITIES ARE HELD BY THE PURCHASERS................... 14
SECTION 5.1. Reservation of Shares................................... 14
SECTION 5.2. Use of Proceeds......................................... 14
SECTION 5.3. Listing of Shares....................................... 14
SECTION 5.4. Periodic Information.................................... 14
SECTION 5.5. Legends................................................. 15
SECTION 5.6. Conversion Price........................................ 15
SECTION 5.7. Registration Rights..................................... 15
SECTION 5.8. Notice to Holders....................................... 15
ARTICLE VI
COVENANTS OF EACH PURCHASER................................................ 15
SECTION 6.1. Agreement to Take Necessary and Desirable Actions....... 15
SECTION 6.2. Restrictions on Transfer................................ 16
SECTION 6.3. Conversion Agreement.................................... 16
ARTICLE VII
CONDITIONS PRECEDENT TO CLOSING............................................ 16
SECTION 7.1. Conditions to the Company's Obligations................. 16
SECTION 7.2. Conditions to Purchaser's Obligations................... 17
ARTICLE VIII
MISCELLANEOUS.............................................................. 18
SECTION 8.1. Survival; Indemnification............................... 18
SECTION 8.2. Notices................................................. 20
SECTION 8.3. Governing Law........................................... 21
SECTION 8.4. Termination............................................. 21
SECTION 8.5. Entire Agreement........................................ 22
SECTION 8.6. Modifications and Amendments............................ 22
SECTION 8.7. Waivers and Extensions.................................. 22
SECTION 8.8. Titles and Headings..................................... 22
SECTION 8.9. Exhibits and Schedules.................................. 22
</TABLE>
(ii)
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 8.10. Expenses............................................... 22
SECTION 8.11. Assignment; No Third Party Beneficiaries............... 23
SECTION 8.12. Severability........................................... 23
SECTION 8.13. Counterparts........................................... 23
SECTION 8.14. Further Assurances..................................... 23
SECTION 8.15. Remedies Cumulative.................................... 23
SECTION 8.16. Specific Performance................................... 23
SECTION 8.17. No Purchaser Affiliate Liability....................... 24
SECTION 8.18. Several Liability...................................... 24
</TABLE>
Schedule A Purchasers
Schedule 3.6 Material Adverse Changes
Exhibit A Amendment
Exhibit B Certificate of Designation
Exhibit C Securityholders Agreement
(iii)
