Exhibit 10.33


 


AMENDMENT NO. 7
TO AMENDED AND RESTATED


LIMITED LIABILITY
COMPANY AGREEMENT OF


BIRDS EYE
HOLDINGS LLC


 


This Amendment No. 7 (this “Amendment”) to
the Amended and Restated Limited Liability Company Agreement (the “Agreement”)
of Birds Eye Holdings LLC (the “Company”), dated as of August 19,
2002, as amended by that certain Amendment No. 1 to the Agreement dated as
of August 30, 2003, that certain Amendment No. 2 to the Agreement
dated as of December 22, 2003, that certain Amendment No. 3 to the
Agreement dated as of February 11, 2004, that certain Amendment No. 4
to the Agreement dated as of October 31, 2005, that certain Amendment No. 5
to the Agreement dated as of July 11, 2007, and that certain Amendment No. 6
to the Agreement dated as of August 14, 2007, is entered into as of August 14,
2007.  All capitalized terms used and not
otherwise defined herein shall have the meanings given to them in the
Agreement.


 


WHEREAS, pursuant to Section 2.8 of the
Agreement, the holders of a majority of the total voting power of the
outstanding Common Units have elected to cause the Company to create and issue
additional Common Units to certain Representatives;


 


WHEREAS, each such Representative has elected to
purchase such units pursuant to subscription agreements and related documents,
each dated as of the date hereof; and


 


WHEREAS, pursuant to Section 7.5 of the
Agreement, the Management Committee may
amend the Agreement to provide for the issuance of such units;


 


NOW THEREFORE, the Management
Committee desires to amend the Agreement in accordance with the terms of Section 7.5
of the Agreement to reflect the foregoing, and hereby agrees as follows:


 


ARTICLE I


AMENDMENTS


 


1.1                               Section 4.4(a)(iv) of
the Agreement.  Subsection (iv) of Section 4.4(a) of
the Agreement is hereby deleted in its entirety and is hereby replaced with the
following:


 


(iv)                          Fourth, after the required distributions pursuant to
subparagraph (iii) above, all remaining distributions shall be made as
follows:


 


(A)                        until the First Performance Hurdle has
been satisfied, 100% of the Distributable Assets shall be distributed as
follows:


 


(1)                           95.0483% to the Common Unitholders, pro
rata in accordance with the number of Common Units held by each such
Unitholder;


 

















 


(2)                           (i) a percentage, equal to the product
of (x) 2.3267% multiplied by (y) the Class C Fraction, to the Class C
Unitholders, pro rata in accordance with the number of Class C Units held
by each such Unitholder, and (ii) a percentage, if any, equal to the
product of (x) 2.3267% multiplied by (y) one minus the Class C
Fraction, to the Common Unitholders and Class C Unitholders, pro rata in
accordance with the number of Common Units and Class C Units held by each
such Unitholder; and


 


(3)                           (i) a percentage, equal to the
product of (x) 2.6250% multiplied by (y) the Class D Fraction,
to the Class D Unitholders, pro rata in accordance with the number of Class D
Units held by each such Unitholder, and (ii) a percentage, if any, equal
to the product of (x) 2.6250% multiplied by (y) one minus the Class D
Fraction, to the Common Unitholders and Class C Unitholders, pro rata in
accordance with the number of Common Units and Class C Units held by each
such Unitholder;


 


(B)                          after the First Performance Hurdle has
been satisfied, and until the Second Performance Hurdle has been satisfied,
100% of the Distributable Assets shall be distributed first to the Class D
Unitholders until such Unitholders have received under subsection (iv)(A) above
and this paragraph of subsection (iv)(B) an amount of all distributions
made under subsection (iv)(A) and this paragraph of subsection (iv)(B) equal
to 5.2689% multiplied by the Class D Fraction, and thereafter as follows:


 


(1)                           92.4676% to the Common Unitholders, pro
rata in accordance with the number of Common Units held by each such
Unitholder;


 


(2)                           (i) a percentage, equal to the
product of (x) 2.2635% multiplied by (y) the Class C Fraction,
to the Class C Unitholders, pro rata in accordance with the number of Class C
Units held by each such Unitholder, and (ii) a percentage, if any, equal
to the product of (x) 2.2635% multiplied by (y) one minus the Class C
Fraction, to the Common Unitholders and Class C Unitholders, pro rata in
accordance with the number of Common Units and Class C Units held by each
such Unitholder; and


 


(3)                           (i) a percentage, equal to the
product of (x) 5.2689% multiplied by (y) the Class D Fraction,
to the Class D Unitholders, pro rata in accordance with the number of Class D
Units held by each such Unitholder, and (ii) a percentage, if any, equal
to the product of (x) 5.2689% multiplied by (y) one minus the Class D
Fraction, to the Common Unitholders and Class C Unitholders, pro rata in
accordance with the number of Common Units and Class C Units held by each
such Unitholder;


 


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(C)                          after the Second Performance Hurdle has
been satisfied, and until the Third Performance Hurdle has been satisfied, 100%
of the Distributable Assets shall be distributed first to the Class D
Unitholders until such Unitholders have received under subsections (iv)(A) and
(B) above and this paragraph of subsection (iv)(C) an amount of all
distributions made under subsections (iv)(A) and (B) and this
paragraph of subsection (iv)(C) equal to 7.8788% multiplied by the Class D
Fraction, and thereafter as follows:


 


(1)                           89.92% to the Common Unitholders, pro
rata in accordance with the number of Common Units held by each such
Unitholder;


 


(2)                           (i) a percentage, equal to the
product of (x) 2.2012% multiplied by (y) the Class C Fraction,
to the Class C Unitholders, pro rata in accordance with the number of Class C
Units held by each such Unitholder, and (ii) a percentage, if any, equal
to the product of (x) 2.2012% multiplied by (y) one minus the Class C
Fraction, to the Common Unitholders and Class C Unitholders, pro rata in
accordance with the number of Common Units and Class C Units held by each
such Unitholder; and


 


(3)                           (i) a percentage, equal to the
product of (x) 7.8788% multiplied by (y) the Class D Fraction,
to the Class D Unitholders, pro rata in accordance with the number of Class D
Units held by each such Unitholder, and (ii) a percentage, if any, equal
to the product of (x) 7.8788% multiplied by (y) one minus the Class D
Fraction, to the Common Unitholders and Class C Unitholders, pro rata in
accordance with the number of Common Units and Class C Units held by each
such Unitholder; and


 


(D)                         after the Third Performance Hurdle has
been satisfied, 100% of the Distributable Assets shall be distributed first to
the Class D Unitholders until such Unitholders have received under
subsections (iv)(A), (B) and (C) above and this paragraph of
subsection (iv)(D) an amount of all distributions made under subsections
(iv)(A), (B) and (C) and this paragraph of subsection (iv)(D) equal
to 10.4554% multiplied by the Class D Fraction, and thereafter as follows:


 


(1)                           87.4051% to the Common Unitholders, pro
rata in accordance with the number of Common Units held by each such
Unitholder;


 


(2)                           (i) a percentage, equal to the
product of (x) 2.1396% multiplied by (y) the Class C Fraction,
to the Class C Unitholders, pro rata in accordance with the number of Class C
Units held by each such Unitholder, and (ii) a percentage, if any, equal
to the product of (x) 2.1396% multiplied by (y) one minus the Class C
Fraction, to the Common Unitholders and Class C Unitholders, pro rata in
accordance 


 


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with the number of Common
Units and Class C Units held by each such Unitholder; and


 


(3)                           (i) a percentage, equal to the product
of (x) 10.4554% multiplied by (y) the Class D Fraction, to the Class D
Unitholders, pro rata in accordance with the number of Class D Units held
by each such Unitholder, and (ii) a percentage, if any, equal to the
product of (x) 10.4554% multiplied by (y) one minus the Class D
Fraction, to the Common Unitholders and Class C Unitholders, pro rata in
accordance with the number of Common Units and Class C Units held by each
such Unitholder;


 


ARTICLE II


ADMISSION OF ADDITIONAL MEMBERS


 


2.1                                 Additional Members. 
Each of the Persons listed on Exhibit A attached hereto is
hereby admitted as an Additional Member.


 


ARTICLE III


MISCELLANEOUS


 


3.1                               General.  Except as expressly set forth in this Amendment,
all other terms and conditions of the Agreement shall remain in full force and
effect.


 


3.2                               Governing Law. 
THIS AMENDMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAW OF THE STATE OF DELAWARE, EXCLUDING ANY CONFLICT-OF-LAWS RULE OR
PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT
TO THE LAW OF ANOTHER JURISDICTION.


 


3.3                               Counterparts. 
This Amendment may be executed in any number of counterparts (including
by means of telecopied signature pages), all of which together shall constitute
a single instrument.


 


3.4                               Section Titles.  Section titles
and headings are for descriptive purposes only and shall not control or alter
the meaning of this Amendment as set forth in the text hereof.


 


* * * * * * * * *


 


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IN WITNESS WHEREOF, the parties have executed this
Amendment as of the day and year first above written.


 


 


	
   

  	
  BIRDS
  EYE HOLDINGS LLC

  
	
   

  	
   

  
	
   

  	
  By: its Management
  Committee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian Ratzan

  
	
   

  	
  Name:

  	
  Brian Ratzan

  
	
   

  	
  Title:

  	
  Representative

  
	
   

  	
   

  
	
   

  	
  HOLDER
  OF A MAJORITY OF THE COMMON UNITS AND THE PREFERRED UNITS:

  
	
   

  	
   

  
	
   

  	
  VESTAR/AGRILINK
  HOLDINGS LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Vestar Capital Partners
  IV, L.P.,

  
	
   

  	
   

  	
  its Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Vestar Associates IV,
  L.P.,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Vestar Associates
  Corporation IV,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian Ratzan

  
	
   

  	
  Name:

  	
  Brian Ratzan

  
	
   

  	
  Title:

  	
  Managing Director