Exhibit 10.27


 


AMENDMENT
NO. 1 TO AMENDED AND RESTATED


LIMITED
LIABILITY COMPANY AGREEMENT OF


AGRILINK
HOLDINGS LLC


 


This
Amendment No. 1 (this “Amendment”) to the Amended and Restated Limited
Liability Company Agreement (the “Agreement”) of Agrilink Holdings LLC (the “Company”),
dated as of August 19, 2002, is entered into as of August 30, 2003.
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 units to certain Representatives,
including a new class of units that will be Common Units and additional
Preferred Units; and


 


WHEREAS,
the Preferred Unitholders holding at least a majority of the Preferred Units
have consented to the issuance of such additional Preferred Units; and


 


WHEREAS,
each such Representative has elected to purchase such units pursuant to a
subscription agreement, 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 1.1 of the Agreement.


 


(a) The
definition of “Common Units” in Section 1.1 of the Agreement is hereby
deleted and the following definition is hereby added to Section 1.1 of the
Agreement:


 


“Common
Units” means the Class A Units, the Class B Units and the Class E
Units.


 


(b) The
following defined term is hereby added to Section 1.1 of the Agreement:


 


“Class E
Units” means the Class E Units of the Company to be issued to certain
Representatives.


 

















 


1.2
Section 3.1(a) of the Agreement. Subsection (i) of Section 3.1(a) of
the Agreement is hereby amended by (a) adding a comma after “Class C
Unit”, (b) deleting “and/or” before “Class D Unit” and (c) adding
“and/or Class E Unit” after “Class D Unit”.


 


1.3
Section 3.2(a) of the Agreement. Subsection (i) of Section 3.2(a) of
the Agreement is hereby amended by (a) adding a comma after “Class C
Unit”, (b) deleting “and/or” before “Class D Unit” and (c) adding
“and/or Class E Unit” after “Class D Unit”.


 


1.4
Section 4.4(a) 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) 96.0067%
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) 1.9967% 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) 1.9967% 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) 1.9967% 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) 1.9967% 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 4.0351%
multiplied by the Class D Fraction, and thereafter as follows:


 


(1) 94.0098%
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) 1.9551% 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) 1.9551% multiplied by (y) one
minus the Class C Fraction, to the Common


 


2

















 


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) 4.0351% 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) 4.0351% 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;


 


(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 6.0736% multiplied by the Class D Fraction, and thereafter as follows:


 


(1) 92.0128%
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) 1.9136% 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) 1.9136% 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) 6.0736% 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) 6.0736% 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 8.1123% multiplied by the Class D
Fraction, and thereafter as follows:


 


(1) 90.0156%
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) 1.8721% 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) 1.8721% multiplied by (y) one
minus the Class C Fraction, to the Common


 


3

















 


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) 8.1123% 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) 8.1123% 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. David Vermylen, Patrick Rose and Gregg Ostrander are hereby
admitted as Additional Members.


 


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.


 


*
* * * * * * * *


 


4

















 


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


 


	
   

  	
  AGRILINK HOLDINGS LLC

  
	
   

  	
  By: its Management
  Committee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Hooper

  
	
   

  	
  Name:

  	
  David Hooper

  
	
   

  	
  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/ David Hooper

  
	
   

  	
  Name:

  	
  David Hooper

  
	
   

  	
  Title:

  	
  Managing Director