Exhibit 4.1
Conformed Copy
STOCKHOLDERS' AGREEMENT
This AGREEMENT is made as of this 18th day of April,
1997, by and among Del Monte Foods Company, a Maryland
corporation (hereinafter referred to as the "Company"), and each
of the following (hereinafter severally referred to as a
"Stockholder" and collectively referred to as the
"Stockholders"): TPG Partners, L.P. ("TPG"), TPG Parallel I,
L.P., BankAmerica Investment Corporation ("BAIC"), MIG Partners
III ("MIG"), BT Investment Partners, Inc., Westar Capital, 399
Venture Partners, Inc. ("399 Venture"), TCW Capital Investment
Corporation ("TCW"), each of the individuals that are signatories
hereto and each of the parties who become parties to this
Agreement pursuant to Article V hereof as stockholders.
WHEREAS, DMFC has entered into an Agreement and Plan
of Merger among TPG, TPG Shield Acquisition Corporation, a wholly
owned subsidiary of TPG ("Shield"), and DMFC, dated as of
February 21, 1997 (the "Merger Agreement");
WHEREAS, the Merger Agreement provides for, among
other things, the merger of Shield with and into DMFC, with DMFC
being the surviving corporation, on the terms and subject to the
conditions set forth in the Merger Agreement (the "Merger");
WHEREAS, the Merger Agreement has been amended as of
April 14, 1997 pursuant to Section 6.7 thereof (the "Amended
Merger Agreement") to provide for the restructuring of the Merger
so that it will be accounted for as a recapitalization for
accounting purposes;
WHEREAS, following the consummation of the transactions
contemplated by the Amended Merger Agreement, the Stockholders
will own all of the issued and outstanding common stock of the
Company (all of the issued and outstanding shares of common stock
of the Company, together with any additional shares issued by the
Company, being hereinafter severally referred to as a "Share" and
collectively referred to as the "Shares"); and
WHEREAS, in consideration of the Amended Merger Agreement
and the transactions contemplated thereby, the parties hereto
desire to enter into an agreement regarding certain matters
described herein, including the imposition of certain
restrictions on the transferability at any time of any Shares
held by any Stockholder.
NOW, THEREFORE, in consideration of the mutual
covenants and agreements contained herein, the parties mutually
agree as follows:
ARTICLE I
Representations and Warranties
Each of the parties hereby severally represents and
warrants to each of the other parties as follows:
1.1 Authority; Enforceability. Such party has the
legal capacity or corporate power and authority to enter into
this Agreement and to carry out its obligations hereunder. Such
party is duly organized and validly existing under the laws of
its jurisdiction of organization, and the execution of this
Agreement and the consummation of the transactions contemplated
herein have been duly authorized by all necessary action, and no
other act or proceeding, corporate or otherwise, on its part is
necessary to authorize the execution of this Agreement or the
consummation of any of the transactions contemplated hereby. This
Agreement has been duly executed by such party and constitutes
its legal, valid and binding obligation, enforceable against
2
it in accordance with the terms of this Agreement, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the rights of creditors generally and to the
exercise of judicial discretion in accordance with general
principles of equity (whether applied by a court of law or of
equity).
1.2 No Breach. Neither the execution of this Agreement
nor the performance by such party of its obligations hereunder nor
the consummation of the transactions contemplated hereby does or
will:
(a) conflict with or violate its articles of
incorporation, bylaws or other organizational documents;
(b) violate, conflict with or result in the
breach or termination of, or otherwise give any other person the
right to accelerate, renegotiate or terminate or receive any
payment, or constitute a default or an event of default (or an
event which with notice, lapse of time, or both, would constitute
a default or event of default) under the terms of, any contract
or agreement to which it is a party or by which it or any of its
assets or operations are bound or affected; or
(c) constitute a violation by such party of any
laws, rules or regulations of any governmental, administrative or
regulatory authority or any judgments, orders, rulings or awards
of any court, arbitrator or other judicial authority or any
governmental, administrative or regulatory authority.
1.3 Consents. No consent, waiver, approval,
authorization, exemption, registration, license or declaration is
required to be made or obtained by such party, other than those
which have been made or obtained, in connection with (i) the
execution or enforceability of this Agreement or (ii) the
consummation of any of the transactions contemplated hereby.
3
1.4 Share Ownership. Such party will own, immediately
following the consummation of the transactions contemplated by
the Amended Merger Agreement, the number of Shares set forth
opposite such party's name in Schedule 1.4 attached hereto, free
and clear of any and all liens, claims and encumbrances, other
than those created by this Agreement.
ARTICLE II
Transfer of Shares
2.1 Restrictions on Transfers.
(a) No Stockholder may transfer by way of sale,
exchange, assignment, pledge, gift or other disposition (all of
which acts shall be deemed included in the term "transfer" as
used in this Agreement) any or all of the Shares (whether held in
its, his or her own right or by a representative of the
Stockholder, such Stockholder hereinafter being referred to as a
"Transferor") unless (i) such transfer of Shares is made on the
books of the Company and in accordance with the provisions of
Article II of this Agreement and (ii) the transferee of such
Shares (if other than the Company or another Stockholder, or a
transferee in a sale of Shares made under Rule 144 (or any
successor provision) under the Securities Act of 1933, as amended
(the "Securities Act"), that is otherwise permitted by this
Agreement) agrees to become a party to this Agreement pursuant to
Article V hereof and executes such further documents as may be
necessary, in the opinion of the Company, to make him, her or it
a party hereto.
(b) Any purported transfer of Shares other than
in accordance with this Agreement by any Transferor shall be null
and void, and the Company shall refuse to recognize any such
transfer for any purpose and shall not reflect in its records any
change in record ownership of Shares pursuant to any such
transfer.
4
(c) The Company shall not, without the written
consent of the holders of a majority, by voting power, of the
outstanding Shares, issue any Shares upon original issue or reissue
or otherwise dispose of any Shares unless the recipient or
transferee of such Shares (if other than a Stockholder) shall
agree to be added to this Agreement pursuant to Article V hereof
and executes such further documents as may be necessary, in the
opinion of the Company, to make him, her or it a party hereto.
2.2 Right of First Refusal.
(a) In the event that a Transferor desires to
sell all or part of its Shares (the "Offered Shares") to a good
faith independent purchaser (a "Purchaser"), other than pursuant
to Section 2.3, 2.4 or 2.5 of this Agreement or in reliance and
in accordance with Rule 144 (or any successor provision) under
the Securities Act, the Transferor shall give written notice (the
"Transferor's Notice") of its intention to sell the Offered
Shares to the Company and the other Stockholders at least 60 days
prior to the date of the proposed transfer setting forth (i) the
number of Offered Shares, (ii) the consideration to be received
by the Transferor, (iii) the identity of the Purchaser, (iv) any
other material items and conditions of the proposed transfer and
(v) the date of the proposed transfer.
(b) If the Transferor shall obtain the written
consent of the holders of a majority, by voting power, of the
outstanding Shares (including such Transferor and its Offered
Shares) entitled to vote at a meeting of Stockholders within 15
days after giving the Transferor's Notice, the Transferor may
freely transfer the Offered Shares to the Purchaser on the terms
and conditions set forth in such notice for a period of 90 days
after obtaining such consent without complying with the other
provisions of this Section 2.2. Thereafter, such Offered Shares
may be
5
transferred only by again complying with all of the terms and
procedures set forth in this Article II.
(c) If the Transferor does not obtain consent to
the proposed transfer as provided in Subsection 2.2(b) above,
each Stockholder (other than the Transferor) may, by written
notice given to the Transferor, the other Stockholders and the
Company within 30 days after the date of the Transferor's Notice,
elect to acquire all of the Offered Shares on the same terms and
conditions set forth in the Transferor's Notice.
If the Stockholders electing to acquire all of
the Offered Shares (for purposes of this Section 2.2, the
"Electing Stockholders") collectively elect to acquire an
aggregate number of shares greater than the total number of
Offered Shares, each Electing Stockholder will be allocated a
number of the Offered Shares, up to the number of shares
specified in such Electing Stockholder's notice to the
Transferor, equal to such Electing Stockholder's Aggregate Pro
Rata Portion (as hereinafter defined) of the Offered Shares. If
one or more Electing Stockholders does not purchase all of its or
their Aggregate Pro Rata Portion of the Offered Shares, then the
remaining Electing Stockholders (for purposes of this Subsection
2.2(c), the "Remaining Electing Stockholders"), who based on
their notice to the Transferor still desire to purchase the
remaining Offered Shares (the "Remaining Offered Shares"), shall
have the right to purchase an Aggregate Pro Rata Portion of such
Remaining Offered Shares until all the Offered Shares are
purchased.
For purposes of this Subsection 2.2(c),
"Aggregate Pro Rata Portion" shall mean the number equal to the
product of (i) (A) the number of Offered Shares or (B) the number
of Remaining Offered Shares, as the case may be, multiplied by
(ii) a fraction, the numerator of which shall be the total number
of Shares held by the Electing Stockholder, and the denominator
6
of which shall be the total number of Shares held by (A) all
Electing Stockholders or (B) all Remaining Electing Stockholders,
as the case may be.
(d) If the Electing Stockholders collectively
elect to acquire fewer than all of the Offered Shares within 30
days after the date of the Transferor's Notice, the Company shall
thereupon have the option, exercisable by written notice given to
the Transferor and the other Stockholders within 45 days after
the date of the Transferor's Notice, to repurchase all or part of
the remaining Offered Shares on the same terms and conditions set
forth in the Transferor's Notice.
(e) Subject to Subsection 2.2(f) below, upon the
giving of the notices provided in Subsections 2.2(c) and (d)
above, the Electing Stockholders and/or the Company, as the case
may be, shall be obligated severally, but not jointly, to
acquire, and the Transferor shall be obligated to transfer to
each of them, the respective numbers of Offered Shares specified
in such notices (or determined in accordance with Subsection
2.2(c) above, as the case may be) on the terms and conditions set
forth in the Transferor's Notice; provided that, if the proposed
transfer to the Purchaser provides for the payment of non-cash
consideration for the Offered Shares, any Electing Stockholder
and/or the Company may in their discretion, in lieu thereof, pay
the Transferor in cash the fair market value of such non-cash
consideration.
(f) Notwithstanding the foregoing provisions of
Subsection 2.2(e), if the Electing Stockholders and the Company
collectively elect to acquire fewer than all of the Offered
Shares, neither the Electing Shareholders nor the Company shall
have the right to purchase any of the Offered Shares, and the
Transferor may freely transfer all (but not less than all) of the
Offered Shares to the Purchaser on the terms and conditions set
forth in the Transferor's Notice at any time after 60 days, but
within 120 days, following the date of such
7
Transferor's Notice, provided, however, if the holders of a
majority, by voting power, of the outstanding Shares notify the
Transferor in writing, within 50 days after the date of the
Transferor's Notice, of an objection to the Purchaser because the
Purchaser or one or more of its affiliates competes with one or
more of the businesses of the Company and its subsidiaries, the
Transferor shall not have the right to transfer any of the
Offered Shares to such Purchaser.
In the event that the Offered Shares are not so
transferred to the Purchaser or if the Transferor shall desire to
transfer the Offered Shares to the Purchaser upon terms and
conditions different from those set forth in the Transferor's
Notice, then such Offered Shares may be transferred only by again
complying with all of the terms and procedures set forth in this
Article II.
2.3 Transfers to Permitted Transferees. A Stockholder
may transfer any or all of the Shares held by such Stockholder to
a Permitted Transferee (as hereinafter defined) of such
Stockholder without complying with any other provision of this
Article II other than Section 2.1. For purposes of this Section
2.3, a "Permitted Transferee" means (a) in the case of TPG, any
other investment partnership, limited liability company or other
entity established for investment purposes and controlled by the
principals of TPG, (b) in the case of any other Stockholder that
is a corporation, any other entity that owns, directly or
indirectly, at least 51% of the equity securities of such
Stockholder ("majority ownership") or that is under common
majority ownership with such Stockholder, (c) in the case of any
other Stockholder that is an investment partnership, limited
liability company or other entity established for investment
purposes, the partners, members, stockholders or other owners
thereof or another investment partnership, limited liability
company or other entity established for investment purposes
and controlled by such partners, members, stockholders or
other owners, (d) in the case of any other Stockholder
8
that is an individual, any successor by death or divorce, (e) in
the case of BAIC, MIG, (f) in the case of MIG, BAIC, (g) in the
case of 000 Xxxxxxx, XXX Partners IV, L.P., and (h) in the case
of TCW, any of TCW/Crescent Mezzanine Partners, L.P.,
TCW/Crescent Mezzanine Trust or TCW/Crescent Mezzanine Investment
Partners, L.P.
2.4 Bankruptcy of a Stockholder.
(a) Upon the bankruptcy (as hereinafter defined
in Subsection 2.4(d) below) of a Stockholder (the "Bankrupt
Stockholder"), each Stockholder (other than the Bankrupt
Stockholder) may, by written notice given to the Bankrupt
Stockholder, the other Stockholders and the Company within 30
days following the occurrence of the event specified in
Subsection 2.4(d) which gives rise to such bankruptcy, elect to
purchase for cash part or all of such Bankrupt Stockholder's
shares (the "Bankrupt Shares") at a price equal to the fair
market value of such shares at the time of purchase, as
determined either by agreement among the Stockholders or by an
independent appraiser to be selected by the Company. Fees and
expenses of any independent appraiser selected pursuant to this
subsection shall be shared equally by (i) the Bankrupt
Stockholder and (ii) the Stockholders electing to acquire any or
all of the Bankrupt Shares (for purposes of this Section 2.4, the
"Electing Stockholders"). The share of the fees and expenses to
be shared by the Electing Stockholders shall be in proportion to
the shares to be purchased by them.
If the Electing Stockholders collectively elect
to acquire an aggregate number of shares greater than the total
number of the Bankrupt Shares, each Electing Stockholder will be
allocated a number of the Bankrupt Shares, up to the number of
shares specified in such Electing Stockholder's notice to the
Company, equal to such Electing Stockholder's Aggregate Pro Rata
Portion (as hereinafter defined) of the Bankrupt Shares. If one
9
or more Electing Stockholder does not purchase all of its or
their Aggregate Pro Rata Portion of the Offered Shares, then the
remaining Electing Stockholders (for purposes of this Subsection
2.4(a), the "Remaining Electing Stockholders"), who based on
their notice to the Company still desire to purchase the
remaining Bankrupt Shares (the "Remaining Bankrupt Shares"),
shall have the right to purchase an Aggregate Pro Rata Portion of
such Remaining Bankrupt Shares until all the Bankrupt Shares are
purchased.
For purposes of this Subsection 2.4(a),
"Aggregate Pro Rata Portion" shall mean the number equal to the
product of (i) (A) the number of Bankrupt Shares or (B) the
number of Remaining Bankrupt Shares, as the case may be,
multiplied by (ii) a fraction, the numerator of which shall be
the total number of Shares held by the Electing Stockholder, and
the denominator of which shall be the total number of Shares held
by (A) all Electing Stockholders or (B) all Remaining Electing
Stockholders, as the case may be.
(b) If the Electing Stockholders collectively
elect to acquire fewer than all of the Bankrupt Shares within 30
days after the event giving rise to such bankruptcy, the Company
shall thereupon have the option, exercisable by written notice
given to the Bankrupt Stockholder and the other Stockholders
within 45 days after the event giving rise to such bankruptcy, to
purchase for cash all or part of the remaining Bankrupt Shares at
the price determined in accordance with Subsection 2.4(a) above.
(c) Upon the giving of the notices provided in
Subsections 2.4(a) and (b) above, the Electing Stockholders
and/or the Company, as the case may be, shall be obligated
severally, but not jointly, to purchase, and the Bankrupt Stockholder
shall be obligated to sell to each of them, the respective numbers
of such Bankrupt Shares specified in such notices (or
10
determined in accordance with Subsection 2.4(a) above, as the
case may be) for cash at the price determined in accordance with
Subsection 2.4(a) above.
(d) The bankruptcy of a Stockholder shall be
deemed to occur upon the occurrence of any of the following
events:
(i) The filing of a voluntary petition in
bankruptcy by such Stockholder;
(ii) The filing of an involuntary petition
in bankruptcy with respect to such Stockholder which remains
undismissed for a period of 90 days;
(iii) The appointment of a receiver with
respect to such Stockholder or with respect to all or substantially
all of his, her or its assets or affairs which remains undismissed
for a period of 60 days; or
(iv) The admission in writing by the Stockholder
of his, her or its inability to pay his, her or its debts generally
as they become due.
2.5 Certain Rights.
(a) Drag Along Rights. If a Stockholder or
Stockholders holding in the aggregate a majority, by voting
power, of the outstanding Shares (a "Controlling Stockholder")
desires to sell its Shares to a Purchaser (other than pursuant to
Section 2.3) and said Purchaser desires to acquire all of the
issued and outstanding Shares of the Company upon such terms and
conditions as agreed to with the Controlling Stockholder, each
other Stockholder agrees to sell all of its Shares to said
Purchaser (or to vote in favor of any merger or other transaction
which would effect such a sale) at the same price per Share and
pursuant to the same terms and conditions with respect to payment
for the Shares as agreed to by the Controlling Stockholder. In
such case, the Controlling Stockholder shall give written notice
of such sale to
11
the other Stockholders at least 30 days prior to the consummation
of such sale, setting forth (i) the consideration to be received
by the Stockholders, (ii) the identity of the Purchaser, (iii)
any other material items and conditions of the proposed transfer
and (iv) the date of the proposed transfer.
(b) Tag Along Rights. If TPG or its affililates
proposes to transfer any Shares to a Purchaser other than an
affiliate or employee of TPG or its affiliates, then such
Stockholder (hereinafter referred to as a "Selling Stockholder")
shall give written notice of such proposed transfer to the other
Stockholders (for purposes of this Subsection 2.5(b), the "Other
Stockholders") at least 30 days prior to the consummation of such
proposed transfer, setting forth (A) the number of Shares
offered, (B) the consideration to be received by such Selling
Stockholder, (C) the identity of the Purchaser, (D) any other
material items and conditions of the proposed transfer and (E)
the date of the proposed transfer.
Each Other Stockholder may elect to sell a Pro
Rata Portion (as hereinafter defined) of its Shares, at the same
price per Share and pursuant to the same terms and conditions
with respect to payment for the Shares as agreed to by the
Selling Stockholder, by sending written notice to the Selling
Stockholder within 15 days of the date of the Selling
Stockholder's notice, indicating a desire to sell such Pro Rata
Portion of its Shares in the same transaction. Following such 15
day period, the Selling Stockholder shall be permitted to sell to
the Purchaser additional Shares representing Shares not sold by
Other Stockholders.
"Pro Rata Portion" shall mean a number equal to
the product of (x) the total number of Shares owned by such Other
Stockholder and (y) a fraction, the numerator of which shall be
the total number of Shares offered (for sale or registration) by
the Selling Stockholder, and the denominator of which shall be
the total number of Shares owned by the
12
Selling Stockholder (including the Shares proposed to be sold or
registered by the Selling Stockholder).
(c) Piggyback Registration Rights.
(i) Notice to Stockholders. If the Company
determines that it will file a registration statement under the
Securities Act, other than a Form S-8 under the Securities Act or
any similar form under the Securities Act, for an offering which
includes Shares held by TPG or its affiliates (a "Registering
Stockholder"), then the Company shall give prompt written notice
to each of the other Stockholders (for purposes of this
Subsection 2.5(c), the "Other Stockholders") that such filing is
expected to be made (but in no event less than 30 days nor more
than 60 days in advance of filing such registration statement),
the jurisdiction or jurisdictions in which such offering is
expected to be made, and the underwriter or underwriters (if any)
that the Company (or the person requesting such registration)
intends to designate for such offering. If the Company, within 15
days after giving such notice, receives a written request for
registration of any Shares from any of the Other Stockholders,
then the Company shall include in the same registration statement
the number of additional Shares to be sold by each Other
Stockholder as shall have been specified in its request, except
that each Other Stockholder shall not be permitted to register
more than a Pro Rata Portion of its Shares. The Company shall
bear all costs of preparing and filing the registration
statement, and shall indemnify and hold harmless, to the extent
customary and reasonable, pursuant to indemnification and
contribution provisions to be entered into by the Company at the
time of filing of the registration statement, the seller of any
Shares covered by such registration statement.
13
Notwithstanding anything herein to the contrary, the Company, on
prior notice to the participating Stockholder, may abandon its
intention to file a registration statement under this Subsection
2.5(c) at any time prior to such filing.
(ii) Allocation. If the managing underwriter shall
inform the Company (or the person requesting such registration) in
writing that the number of shares requested to be included in such
registration exceeds the number which can be sold in (or during
the time of) such offering within a price range acceptable to the
Company (or, if the offering is not for the Company's account,
such person), then the Company shall include in such registration
such number of Shares which the Company (or such person) is so
advised can be sold in (or during the time of) such offering. All
Stockholders proposing to sell Shares shall share pro rata in the
number of Shares to be excluded from such offering, such sharing
to be based on the respective numbers of Shares as to which
registration has been requested by such Stockholders.
(iii) Permitted Transfer. Notwithstanding
anything to the contrary contained herein, sales of Shares pursuant
to a registration statement filed by the Company may be made without
compliance with any other provision of this Article II.
ARTICLE III
Legends on Share Certificates
3.1 The certificates representing the Shares shall
include an endorsement typed conspicuously thereon of the
following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NO REGISTRATION OF TRANSFER OF SUCH SECURITIES WILL BE MADE
ON THE BOOKS OF THE ISSUER UNLESS SUCH TRANSFER IS MADE IN
CONNECTION WITH AN EFFECTIVE REGISTRATION STATEMENT
14
UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT OR SUCH ACT DOES NOT
APPLY.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO CERTAIN RESTRICTIONS ON TRANSFER AS SET FORTH IN A
STOCKHOLDERS' AGREEMENT DATED AS OF APRIL 18, 1997 AS THE
SAME MAY BE AMENDED FROM TIME TO TIME, A COPY OF WHICH IS
ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER.
NO REGISTRATION OF TRANSFER OF SUCH SECURITIES WILL BE MADE
ON THE BOOKS OF THE ISSUER UNLESS AND UNTIL SUCH
RESTRICTIONS SHALL HAVE BEEN COMPLIED WITH."
In the event that any Shares shall cease to be
Restricted Shares (as hereinafter defined), the Company shall,
upon the written request of the holder thereof, issue to such
holder a new certificate representing such Shares without the
first paragraph of the legend required by this Section 3.1. In
the event that any Shares shall cease to be subject to the
restrictions on transfer set forth in this Agreement, the Company
shall, upon the request of the holder thereof, issue to such
holder a new certificate representing such Shares without the
second paragraph of the legend required by Section 3.1.
"Restricted Shares" shall mean all Shares other than
(a) Shares that have been registered under a registration
statement pursuant to the Securities Act and sold thereunder, (b)
Shares with respect to which a sale or other disposition has been
made in reliance on and in accordance with Rule 144 (or any
successor provision) under the Securities Act, or (c) Shares with
respect to which the holder thereof shall have delivered to the
Company either (i) an opinion, in form and substance satisfactory
to the Company, of counsel, who shall be satisfactory to the
Company, or (ii) a "no action" letter from the Securities and
Exchange Commission, to the effect that subsequent transfers of
such Shares may be effected without registration under the
Securities Act.
15
3.2 All certificates for Shares hereafter issued, whether
upon transfer or original issue, shall be endorsed with a like
legend.
3.3 Upon the exercise of any option to purchase
described herein, the certificates representing the Shares
purchased shall be delivered to the Secretary of the Company and
properly endorsed for transfer on the stock book of the Company.
ARTICLE IV
Covenants
4.1 Financial Information. The Company shall, at its
expense, provide to each Stockholder signatory hereto at the date
hereof, promptly following the final preparation thereof, copies
of consolidated annual, quarterly and monthly financial
statements of the Company and its subsidiaries, such statements
to include such type of information as is required to be provided
to the senior secured lenders of Del Monte Corporation at the
date hereof. The rights provided by this Section 4.1 may not be
transferred or assigned to any other person without the consent
of holders of a majority, by voting power, of the outstanding
Shares, and shall be subject as to each Stockholder to the
provision by such Stockholder of customary confidentiality
undertakings.
4.2 Affiliate Transactions. The Company shall not, and
shall not permit any of its subsidiaries to, enter into any
transaction with any affiliate of the Company (other than a
material subsidiary of the Company), except upon fair and
reasonable terms no less favorable to the Company or such
subsidiaries than would be obtainable in a comparable arm's
length transaction, unless the Company shall obtain the written
consent of a majority of the independent directors of the Company
or of the holders of a majority, by voting power, of the
outstanding Shares (excluding such affiliate and its Shares)
entitled to vote at a meeting of Stockholders; provided,
agreements in effect on the date hereof shall be deemed not to
violate this provision.
16
4.3 Exchange of Shares. The Stockholders will use all
reasonable efforts to cause the Board of Directors of the Company to
authorize the exchange of Shares held by any Stockholder subject
to the Bank Holding Company Act of 1956, as amended (the "BHCA"),
to the extent necessary, for substantially equivalent shares with
diminished voting rights, to permit the ownership of such Shares
by such Stockholder to comply with the requirements of Section
4(c)(6) or 4(c)(7) of the BHCA.
ARTICLE V
Additional Parties
Notwithstanding the provisions of Section 6.3,
additional Stockholders may be added to and be bound by this
Agreement upon the signing and delivery of a counterpart of this
Agreement by the Company and the acceptance thereof by such
additional Stockholders. Promptly thereafter, the Company will
deliver a conformed copy thereof to the Stockholders.
ARTICLE VI
Miscellaneous Provisions
6.1 Specific Performance. The parties hereby declare
and acknowledge that it is impossible to measure in money the
damages which will accrue to any party hereto or to a
representative of a Stockholder by reason of a failure to perform
any of the obligations under this Agreement. Therefore, if any
party hereto or the representative of a Stockholder shall
institute any action or proceeding to enforce the provisions
hereof, the person against whom such action or proceeding is
brought hereby waives the claim or defense that such party or
such representative has an adequate remedy at law, and such
person shall not urge in any such action or proceeding the claim
or defense that such party or such representative has an adequate
remedy at law. The parties hereto agree that this Agreement shall
be specifically enforceable.
17
6.2 Notices. Any and all notices, designations, offers,
acceptances or other communications provided for herein shall be
given in writing by registered or certified mail, which shall be
addressed, in the case of the Company, to its principal office,
and, in the case of any Stockholder, to such Stockholder's
address appearing on the stock book of the Company or to such
other address as may be designated by such Stockholder in writing
to the Company.
6.3 Entire Agreement. This Agreement constitutes the
only agreement between the parties hereto respecting restrictions
on the transferability of the Shares and supersedes all prior
agreements, expressed or implied, between the parties.
6.4 Governing Law. The validity, construction and
performance of this Agreement shall be governed by the laws of the
State of Maryland, without giving effect to principles of conflicts
of laws.
6.5 Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the parties hereto, and their successors
and assigns.
6.6 Severability. If any portion of this Agreement
shall be declared void or unenforceable by any court or
administrative body of competent jurisdiction, such portion shall
be deemed severable from the remainder of this Agreement, which
shall continue in all respects valid and enforceable.
6.7 Amendment and Waiver. Any amendment of this Agreement
or any waiver of any provision hereof shall be in writing and signed
by all of the parties hereto. The addition of a Transferee of Shares or
a recipient of any Shares as a party hereto pursuant to Article IV
hereof shall not constitute an amendment hereto and need be signed
only by the Company and such Transferee or recipient. Any failure
by any party at any time to enforce any
18
of the provisions of this Agreement shall not be construed a
waiver of such provision or any other provisions hereof.
6.8 Termination. This Agreement shall terminate on the
earlier of (a) the date on which more than 50% of the issued and
outstanding Shares at such date shall have been registered and
sold pursuant to one or more registration statements filed under
the Securities Act and (b) the tenth anniversary of the date
hereof. Notwithstanding the foregoing, in connection with the
underwritten initial public offering by the Company of any
Shares, the holders of a majority, by voting power, of the
outstanding Shares may, by written notice to each of the parties
to this Agreement and to each party who becomes a party to this
Agreement, terminate this Agreement within 30 days after giving
such notice, provided, however, termination pursuant to this
second sentence of Section 6.8. shall not terminate the rights,
if any, of Stockholders set forth in Subsection 2.5(c) of this
Agreement.
6.9 Counterparts. This Agreement may be signed by each
party hereto upon a separate copy of this Agreement in which
event all of said copies shall constitute a single counterpart of
this Agreement. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and it
shall not be necessary in making proof of this Agreement to
produce or account for more than one such counterpart.
Each Stockholder in agreement with the foregoing
should sign the form of acceptance in the space provided for such
Stockholder's signature on this copy of this Agreement delivered
to such Stockholder. This Agreement will become a binding
agreement among such Stockholders and the Company when signed by
the Company and so accepted by such Stockholders.
19
The foregoing Agreement is hereby accepted as of the
day and year first above written.
DEL MONTE FOODS COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name:
Title:
Stockholders:
TPG PARTNERS, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Xxxxxx Xxxxxxx
--------------------------
Name:
Title:
TPG PARALLEL I, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Xxxxxx Xxxxxxx
--------------------------
Name:
Title:
S-1
399 VENTURE PARTNERS, INC.
By: /s/ Xxxxx Xxxx
--------------------------
Name:
Title:
S-2
BANKAMERICA INVESTMENT CORPORATION
By: /s/ Xxxxxx X. XxXxxxx
--------------------------
Name: Xxxxxx X. XxXxxxx
Title: Managing Director
MIG PARTNERS III
By: /s/ Xxxxxx X. XxXxxxx
--------------------------
Name: Xxxxxx X. XxXxxxx
Title: Managing Director
S-3
BT INVESTMENT PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxx
--------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director
S-4
WESTAR CAPITAL
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: General Partner
S-5
TCW CAPITAL INVESTMENT CORPORATION
By: TCW Asset Management Company
its general partner
By: /s/ Xxxxx X. Xxxx, Xx. By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxx, Xx. Name: Xxxxx X. Xxxxxx
Title: Executive Vice President, Title: Assistant Secretary
Finance & Administration Address: 000 Xxxxx Xxxxxxxx Xxxxxx
Address: 000 Xxxxx Xxxxxxxx Xxxxxx Xxxxx 0000
Xxxxx 0000 Xxx Xxxxxxx, Xxxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
90017
S-6
/s/ Xxxxxx X. Xxxxxxxxx
------------------------------
XXXXXX X. XXXXXXXXX
/s/ Xxxxxxx Xxxxxx
------------------------------
XXXXXXX XXXXXX
/s/ Xxxxxxx Xxxxxxxx
------------------------------
XXXXXXX XXXXXXXX
/s/ Xxxxx Xxxxxx
------------------------------
XXXXX XXXXXX
S-7
