EXHIBIT D
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT (this "Agreement"), dated as
of ________, 199__, between Del Monte Foods Company (the
"Company") and ________________________ (the "Stockholder").
WHEREAS, the Stockholder is an employee of the Company
and in such capacity was granted an option (the "Option") to
purchase shares of common stock of the Company, par value $.01
per share ("Common Stock"), pursuant to the Company's 1997 Stock
Incentive Plan (the "Option Plan");
WHEREAS, as a condition to the issuance of shares of
Common Stock pursuant to the exercise of an Option, the
Stockholder is required under the Option Plan to execute this
Agreement; and
WHEREAS, the Stockholder desires to exercise the Option
to purchase __________ shares of Common Stock; and
WHEREAS, the Stockholder and the Company desire to
enter this Agreement and to have this Agreement apply to the
shares to be purchased pursuant to the Option Plan and to any
shares of Common Stock acquired after the date hereof by the
Stockholder from whatever source, subject to any future agreement
between the Company and the Stockholder to the contrary (in the
aggregate, the "Shares").
NOW THEREFORE, in consideration of the premises
hereinafter set forth, and other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereto
agree as follows.
1. Investment. The Stockholder represents that the Shares
are being acquired for investment and not with a view toward the
distribution thereof.
2. Issuance of Shares. The Stockholder acknowledges
and agrees that the certificate for the Shares shall bear the
following legends (except that the second paragraph of this
legend shall not be required after the Shares have been
registered and except that the first paragraph of this legend
shall not be required after the termination of this Agreement):
The shares represented by this certificate are subject to
the terms and conditions of a Stockholders' Agreement dated
as of ______________, 19__ and may not be sold,
transferred, hypothecated, assigned or encumbered, except
as may be permitted by the aforesaid Agreement. A copy of
the Stockholders' Agreement may be obtained from the
Secretary of the Company.
The shares represented by this certificate have not been
registered under the Securities Act of 1933. The shares
have been acquired for investment and may not be sold,
transferred, pledged or hypothecated in the absence of an
effective registration statement for the shares under the
Securities Act of 1933 or an opinion of counsel for the
Company that registration is not required under said Act.
Upon the termination of this Agreement, or upon
registration of the Shares under the Securities Act of 1933 (the
"Securities Act"), the Stockholder shall have the right to
exchange any Shares containing the above legend (i) in the case
of the registration of the Shares, for Shares legended only with
the first paragraph described above and (ii) in the case of the
termination of this Agreement, for Shares legended only with the
second paragraph described above.
3. Transfer of Shares; Put and Call Options.
(a) The Stockholder agrees that he will not cause or
permit the Shares or his interest in the Shares to be sold,
transferred, hypothecated, assigned or encumbered except as
expressly permitted by this Section 3; provided, however, that
the Shares or any such interest may be transferred (i) on the
Stockholder's death by bequest or inheritance to the
Stockholder's executors, administrators, testamentary trustees,
legatees or beneficiaries, (ii) to a trust or custodianship the
beneficiaries of which may include only the Stockholder, the
Stockholder's spouse, or the Stockholder's lineal descendants (by
blood or adoption), (iii) in accordance with Section 4 of this
Agreement, and (iv) to the Company pursuant to Section 6(e)(2) or
Section 11(b) of the Option Plan, subject in any such case to the
agreement by each transferee (other than the Company) in writing
to be bound by the terms of this Agreement and provided in any
such case that no such transfer that would cause the Company to
be required to register the Common Stock under Section 12(g) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), shall be permitted.
(b) The Company (or its designated assignee) shall
have the right, during the ninety-day period beginning 275 days
after the termination of the employment of the Stockholder with
the Company for any other reason at any time, to purchase from
the Stockholder, and upon the exercise of such right the
Stockholder shall sell to the Company (or its designated
assignee), all or any portion of the Shares held by the
Stockholder as of the date as of which such right is exercised at
a per Share price equal to the value of a share of Common Stock
as determined by the Board of Directors of the Company (the
"Board of Directors") as of the date as of which such right is
exercised. The Company (or its designated assignee) shall
exercise such right by delivering to the Stockholder a written
notice specifying its intent to purchase Shares held by the
Stockholder, the date as of which such right is to be exercised
and the number of Shares to be purchased. Such purchase and sale
shall occur on such date as the Company (or its designated
assignee) and the Stockholder shall agree, which date shall not
be later than the earlier of (i) ninety (90) days after the
fiscal quarter-end immediately following the date as of which the
Company's right is exercised and (ii) thirty (30) days after the
date on which such value is determined by the Board of Directors.
(c) The Stockholder shall have the right, during the
(x) one-year period following the termination of the Stockholder's
employment as a result of death or Permanent Disability or (y)
ninety-day period immediately following the termination of the
employment of the Stockholder with the Company for any other
reason at any time, to sell to the Company (or its designated
assignee), and upon the exercise of such right the Company (or
its designated assignee) shall purchase from the Stockholder, all
or any portion of the Shares held by the Stockholder as of the
date as of which such right is exercised at a per Share price
equal to the value of a share of Common Stock as determined by
the Board of Directors as of the date as of which such right is
exercised. The Stockholder shall exercise such right by
delivering to the Company a written notice specifying its intent
to sell Shares held by the Stockholder, the date as of which such
right is to be exercised and the number of Shares to be sold.
Such purchase and sale shall occur on such date as the Company
(or its designated assignee) and the Stockholder shall agree,
which date shall not be later than the earlier of (i) ninety (90)
days after the fiscal quarter-end immediately following the date
as of which the Stockholder's right is exercised and (ii) thirty
(30) days after the date on which such value is determined by the
Board of Directors. For purposes of this Section 3(c), "Permanent
Disability" shall mean physical or mental disability as a result
of which the Stockholder is unable to perform his duties with the
Company on substantially a full-time basis for any period of six
(6) consecutive months. Any dispute as to whether or not the
Stockholder is so disabled shall be resolved by a physician
reasonably acceptable to the Stockholder and the Company whose
determination shall be final and binding upon both the
Stockholder and the Company. Notwithstanding the foregoing
provisions, "Permanent Disability," when used in connection with
the termination of the employment with the Company of a
Stockholder who at the time of such termination is a party to a
written employment or retention agreement with the Company, shall
have the meaning assigned to such term in such agreement.
4. Certain Rights.
(a) Drag Along Rights. If TPG Partners, L.P. ("TPG")
desires to sell its shares of Common Stock to a good faith
independent purchaser (a "Purchaser") (other than any other
investment partnership, limited liability company or other entity
established for investment purposes and controlled by the
principals of TPG) and said Purchaser desires to acquire all of
the issued and outstanding shares of Common Stock upon such terms
and conditions as agreed to with TPG, the Stockholder agrees to
sell all of his 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 of Common Stock and pursuant to the
same terms and conditions with respect to payment for the shares
of Common Stock as agreed to by TPG. In such case, TPG shall give
written notice of such sale to the Stockholder at least 30 days
prior to the consummation of such sale, setting forth (i) the
consideration to be received by the holders of shares of Common
Stock, (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 affiliates proposes to
transfer any of its shares of Common Stock to a Purchaser other than
an affiliate or employee of TPG or its affiliates, then TPG or such af-
filiate (hereinafter referred to as a "Selling Stockholder") shall give
written notice of such proposed transfer to the Stockholder at
least 30 days prior to the consummation of such proposed
transfer, setting forth (i) the number of shares of Common Stock
offered, (ii) the consideration to be received by such Selling
Stockholder, (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.
The Stockholder may elect to sell a Pro Rata Portion
(as hereinafter defined) of his Shares, at the same price per
share of Common Stock and pursuant to the same terms and
conditions with respect to payment for the shares of Common Stock
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 his 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 of the Company.
For purposes of Sections 4(b) and 4(c) hereof, "Pro
Rata Portion" shall mean a number equal to the product of (x) the
total number of Shares owned by the Stockholder and (y) a
fraction, the numerator of which shall be the total number of
shares of Common Stock offered (for sale or registration, as
applicable) by the Selling Stockholder, and the denominator of
which shall be the total number of shares of Common Stock owned
by the Selling Stockholder (including the shares of Common Stock
proposed to be sold or registered by the Selling Stockholder);
provided, however, that any fraction of a share resulting from
such calculation shall be disregarded for purposes of determining
the Pro Rata Portion.
(c) Piggyback Registration Rights.
(i) Notice to Stockholder. If the Company determines
that it will file a registration statement under the Securities
Act, other than a registration statement on Form S-4 or Form S-8
or any successor form, for an offering which includes shares of
Common Stock held by TPG or its affiliates (hereinafter referred
to as a "Selling Stockholder"), then the Company shall give
prompt written notice to the Stockholder 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 the Stockholder, then the Company
shall include in the same registration statement the number of
Shares to be sold by the Stockholder as shall have been specified
in his request, except that the Stockholder shall not be
permitted to register more than a Pro Rata Portion of his 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 of Common Stock covered by such registration
statement.
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
Section 4(c) at any time prior to such filing.
(ii) Allocation. If the managing underwriter shall
inform the Company in writing that the number of shares of Common
Stock 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 TPG, then the Company shall
include in such registration such number of shares of Common
Stock which the Company is so advised can be sold in (or during
the time of) such offering. All holders of shares of Common Stock
proposing to sell shares of Common Stock shall share pro rata in
the number of shares of Common Stock to be excluded from such
offering, such sharing to be based on the respective numbers of
shares of Common Stock as to which registration has been
requested by such holders.
(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 Agreement.
5. Termination. This Agreement shall terminate
immediately following the commencement of a Public Market for the
Common Stock, except that (i) the requirements contained in
Section 2 hereof shall survive the termination of this Agreement
and (ii) the provisions contained in Section 3 hereof shall
continue with respect to each Share during such period of time,
if any, as the Stockholder is precluded from selling such Share
pursuant to Rule 144 of the Securities Act. For this purpose, a
"Public Market" for the Common Stock shall be deemed to exist if
the Common Stock is registered under Section 12(b) or 12(g) of
the Exchange Act, or if trading regularly occurs in such Common
Stock in, on or through the facilities of securities exchanges
and/or inter-dealer quotation systems in the United States
(within the meaning of Section 902(n) of the Securities Act) or
any designated offshore securities market (within the meaning of
Rule 902(a) of the Securities Act).
6. Distributions With Respect To Shares. As used herein,
the term "Shares" includes securities of any kind whatsoever
distributed with respect to the Common Stock acquired by the
Stockholder pursuant to the Option Plan or any such securities
resulting from a stock split or consolidation involving such
Common Stock.
7. Amendment; Assignment. This Agreement may be
amended, superseded, cancelled, renewed or extended, and the
terms hereof may be waived, only by a written instrument signed
by authorized representatives of the parties or, in the case of a
waiver, by an authorized representative of the party waiving
compliance. No such written instrument shall be effective unless
it expressly recites that it is intended to amend, supersede,
cancel, renew or extend this Agreement or to waive compliance
with one or more of the terms hereof, as the case may be. Except
for the Stockholder's right to assign his or her rights under
Section 3(a) or the Company's right to assign its rights under
Section 3(b) or its obligations under Section 3(c), no party to
this Agreement may assign any of its rights or obligations under
this Agreement without the prior written consent of the other
parties hereto.
8. Notices. All notices and other communications here-
under shall be in writing, shall be deemed to have been given if
delivered in person or by certified mail, return receipt
requested, and shall be deemed to have been given when personally
delivered or three (3) days after mailing to the following
address:
If to the Stockholder:
If to the Company:
Del Monte Foods Company
Xxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Board of Directors and Secretary
If to TPG:
or to such other address as any party may have
furnished to the others in writing in accordance herewith, except
that notices of change of address shall only be effective upon
receipt.
9. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed to be an
original, but each of which together shall constitute one and the
same document.
10. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California,
without reference to its principles of conflicts of law.
11. Binding Effect. This Agreement shall be binding
upon, inure to the benefit of, and be enforceable by the heirs,
personal representatives, successors and permitted assigns of the
parties hereto. Nothing expressed or referred to in this
Agreement is intended or shall be construed to give any person
other than the parties to this Agreement, or their respective
heirs, personal representatives, successors or assigns, any legal
or equitable rights, remedy or claim under or in respect of this
Agreement or any provision contained herein.
12. Entire Agreement. This Agreement constitutes the
entire agreement between the parties hereto with respect to the
subject matter hereof.
13. Severability. If any term, provision, covenant or
restriction of this Agreement, is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no
way be affected, impaired or invalidated.
14. Miscellaneous. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
* * * * * *
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the day and year first
above written.
___________________________
[Stockholder]
DEL MONTE FOODS COMPANY
___________________________
By:
Title:
TPG PARTNERS, L.P.
___________________________
By:
Title:
