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EXHIBIT 4.6
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of ________ ___, 1998, by
and between Del Monte Foods Company, a Delaware corporation (together with its
successors, the "Company"), and TPG Partners, L.P. (together with its
successors, the "Principal Stockholder") and TPG Parallel I, L.P. (together with
its successors and the Principal Stockholder, the "Investors").
RECITALS
WHEREAS, the Company has filed a Registration Statement (as
defined below) on Form S-1 under the Securities Act (as defined below) with
respect to an initial public offering of shares of Common Stock (as defined
below) by the Company, the Investors and certain other stockholders of the
Company;
WHEREAS, as of the date hereof, the Investors are the owners of
[27,142,637] shares of Common Stock, and the Investors have agreed to facilitate
such initial public offering; and
WHEREAS, the parties desire to set forth certain registration
rights applicable to the Registrable Shares (as defined below) held from time to
time by the Principal Stockholder and its Affiliates (as defined below), and the
Company desires to indemnify each of the Investors against certain liabilities
to which they may become subject as a result of their investment in the Company.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and upon the terms and
subject to the conditions hereof, the parties hereby agree as follows:
1. Definitions. As used herein:
"Affiliate" has the meaning specified in Rule 12b-2 under the
Exchange Act. The term "Affiliated" has a correlative meaning.
"Agreement" means this Registration Rights Agreement, as the same
shall be amended, modified or supplemented from time to time.
"Claim" has the meaning specified in Section 6.3 hereof.
"Commission" means the United States Securities and Exchange
Commission, or any successor governmental agency or authority thereto.
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"Common Stock" means (i) the Company's common stock, par value
$.01 per share, (ii) each other class of capital stock of the Company that does
not have a preference over any other class of capital stock of the Company as to
dividends or upon liquidation, dissolution or winding up of the Company, (iii)
any class of capital stock or securities into which or for which the Company's
common stock, par value $.01 per share, or any other class of capital stock or
securities described in clause (ii) or (iii) may hereafter be changed, converted
or exchanged or which are issued to holders of the Company's common stock, par
value $.01 per share, or any other class of capital stock or securities
described in clause (ii) or (iii) upon any reorganization, recapitalization,
reclassification, share combination, share subdivision, share dividend, merger,
consolidation or similar transactions or events.
"Company" has the meaning specified in the preamble hereof.
"Covered Documents" means this Agreement, each Registration
Statement and each Periodic Report and any agreement or other document in
furtherance of any of the foregoing.
"Demand Registration" has the meaning assigned such term in
Section 2.1.
"Exchange Act" means the United States Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
"Governmental Entity" means any government or political
subdivision or department thereof, any governmental or regulatory body,
commission, board, bureau, agency or instrumentality, or any court or arbitrator
or alternative dispute resolution body, in each case, whether federal, state,
local or foreign.
"Group" has the meaning specified in Rule 13d-5 under the
Exchange Act.
"Indemnified Parties" has the meaning specified in Section 6.1
hereof.
"Indemnified Company Parties" has the meaning specified in
Section 6.2 hereof.
"Investors" has the meaning specified in the preamble hereof.
"Losses" has the meaning specified in Section 6.1 hereof.
"Notice of Demand" has the meaning assigned such term in Section
2.1.
"Periodic Report" means each periodic report or proxy statement
filed by the Company with the Commission under the Exchange Act.
"Person" or "Persons" means any individual, corporation, company,
association, partnership, joint venture, trust or unincorporated organization or
governmental entity.
"Preemption Notice" has the meaning assigned such term in Section
2.3(a).
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"Principal Stockholder" has the meaning specified in the preamble
hereof.
"Prospectus" means the prospectus included in the Registration
Statement at each such time as such Registration Statement is filed with the
Commission and at the time such Registration Statement is declared effective, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
"Registrable Shares" means the shares of Common Stock
beneficially owned the Principal Stockholder and its Affiliates, and any other
shares of Common Stock from time to time beneficially owned by or receivable
from time to time upon the conversion, exchange or exercise of any other
securities of the Company beneficially owned by the Principal Stockholder and
its Affiliates and, prior to the termination of the Stockholders' Agreement, by
any party (other than the Company or the Principal Stockholder or its
Affiliates) to the Stockholders' Agreement. Registrable Shares shall cease to be
such when (i) a Registration Statement with respect to the sale thereof shall
have become effective under the Securities Act and such securities shall have
been disposed of in accordance with such Registration Statement, (ii) they shall
have been sold as permitted by Rule 144 (or any successor provision) under the
Securities Act, (iii) they shall have been otherwise transferred, new
certificates for them not bearing a legend restricting further transfer shall
have been delivered by the Company and subsequent public distribution of them
shall not require registration of such distribution under the Securities Act or
(iv) they shall have ceased to be outstanding.
"Registration Expenses" has the meaning assigned such term in
Section 4.
"Registration Statement" means a registration statement of the
Company, concerning the sale of its securities to the public, on an appropriate
form under the Securities Act, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all
exhibits and all material incorporated by reference therein.
"Representatives" means, with respect to any Person, any of such
Person's officers, directors, employees, agents, attorneys, accountants,
actuaries, consultants, equity financing partners or financial advisors or other
Person associated with, or acting on behalf of, such Person.
"Securities Act" means the United States Securities Act of 1933,
as amended, and the rules and regulations promulgated thereunder.
"Securities Laws" means the Securities Act and the Exchange Act,
and the rules and regulations promulgated thereunder, and state and local "blue
sky" securities laws.
"Stockholders' Agreement" means the Stockholders' Agreement,
dated as of April 18, 1997, as amended, by and among the Company (as successor
thereunder), the Principal Stockholder and the other stockholders of the Company
parties thereto.
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2. Demand Registration.
2.1. Requests for Registration. Subject to the terms of this
Agreement, once in each nine-month period, the Principal Stockholder may request
registration of some or all of its Registrable Shares under the Securities Act
by the Company, provided that the Principal Stockholder and its Affiliates
beneficially own collectively at least 5% of the outstanding shares of Common
Stock as of the time of such request. A registration so requested is referred to
herein as a "Demand Registration". Any request for a Demand Registration (each,
a "Notice of Demand") shall specify (a) the amount of Registrable Shares
proposed to be registered and (b) the intended method or methods and plan of
disposition thereof, including whether such requested registration is to involve
an underwritten offering. It is agreed that at any time when the Company is
eligible to file a Registration Statement on Form S-3 (or any successor form),
the Principal Stockholder may request that the Company file a Registration
Statement pursuant to Rule 415 under the Securities Act to permit the offering
of the Registrable Shares on a delayed or continuous basis. The Company shall
give prompt written notice to the holders of all other Registrable Shares as
soon as practicable (but in no event less than 30 days prior to the proposed
date of filing of the Registration Statement relating to such registration) and
shall include in such Demand Registration all Registrable Shares with respect to
which the Company has received written requests for inclusion within 15 days
after delivery of such notice (it being understood that the foregoing is also
intended to permit compliance by the Company with all applicable provisions of
the Stockholders' Agreement, including, without limitation, the provisions of
Section 2.5(c) thereof, with all of which the Company shall comply). Subject to
the terms and conditions hereof, each Demand Registration shall register the
offer and sale of Registrable Shares for all cash consideration, and a
Registration Statement in connection therewith shall permit the disposition of
such Registrable Shares in accordance with the intended method or methods of
disposition specified in the Notice of Demand.
2.2. Demand Registration Expenses. The Company shall pay all
Registration Expenses in connection with each Demand Registration, whether or
not deemed effected pursuant to this Section 2.2. A registration requested
pursuant to Section 2.1 shall be deemed to have been effected and to be as a
Demand Registration, if and only if a Registration Statement with respect
thereto has become effective under the Securities Act and remains effective
during the period provided for in Section 3(b) below.
2.3. Preemption. (a) If not more than 30 days prior to receipt of
a Notice of Demand the Company shall have (i) circulated to prospective
underwriters and their counsel a draft of a Registration Statement for a primary
offering of equity securities on behalf of the Company, (ii) solicited bids for
a primary offering of shares of Common Stock or (iii) otherwise reached an
understanding with an underwriter with respect to a primary offering of shares
of Common Stock, the Company may preempt the Demand Registration with such
primary offering by delivering written notice of such intention (the "Preemption
Notice") to the Principal Stockholder within five days after the Company has
received the Notice of Demand. The period of preemption may be up to 30 days
following the date of the Preemption Notice.
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(b) If the Company preempts a Demand Registration, in the ensuing
registration of the primary offering of Common Stock, the Company shall (i) as
soon as practicable (but in no event less than 30 days prior to the proposed
date of filing of the related Registration Statement), give written notice to
all holders of Registrable Shares of its intention to make such primary offering
and of the right of such holders to register their Registrable Shares in
connection therewith and (ii) register under such Registration Statement all
Registrable Shares with respect to which the Company shall have received written
requests therefor within 15 days after delivery of such written notice. If at
any time after giving written notice of its intention to register a primary
offering of Common Stock and prior to the effective date of the related
Registration Statement, the Company shall determine for any reason not to
register or to delay registration of such primary offering, the Company shall
give prompt written notice of such determination to each holder of Registrable
Shares and (x) in the case of a determination not to register, shall be relieved
of its obligation to register any Registrable Shares in connection with such
registration, without prejudice, however, to the rights of holders of
Registrable Shares entitled to do so to cause such registration to be effected
pursuant to Section 2.1 and (y) in the case of a determination to delay the
registration, shall be permitted to delay registering any Registrable Shares,
for the same period as the delay in registering such primary offering.
(c) Upon the Company's preemption of a registration requested
pursuant to Section 2.1, such requested registration shall not be considered a
Demand Registration. Notwithstanding anything to the contrary herein, the
Company shall not be entitled to exercise its right to preempt a requested
registration pursuant to this Section 2.3 more than once in any 12-month period.
2.4. Priority. If a Demand Registration or any Registration
Statement filed by the Company pursuant to Section 2.3(b) involves an
underwritten offering and the managing underwriters advise the Board of
Directors of the Company in writing that they believe that the total number of
shares of Common Stock (including the Registrable Shares) is such as would have
an adverse affect on the ability of the underwriters to effect the underwritten
offering, 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 such
offering. In accordance with the provisions of Section 2.5(c) of the
Stockholders' Agreement, all sellers of Registrable Shares 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 number of shares of Common Stock as to
which registration has been requested by such sellers.
2.5. Restrictions. The Company may postpone for up to a total of
45 days the filing or the effectiveness of a Registration Statement for a Demand
Registration if the Company reasonably believes in its good faith judgment that
such Demand Registration would have a material adverse effect on any proposal or
plan by the Company or any of its subsidiaries to engage in any acquisition of
assets (other than in the ordinary course of business) or any material
financing, merger, consolidation, tender offer or other significant transaction.
Any such determination shall be evidenced by a resolution of the Board of
Directors of the Company and delivered at such time to the Principal
Stockholder. Notwithstanding any term of Section 2.3 or 2.5, in no event may the
Company exercise the rights under Sections 2.3 or 2.5 to cause
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preemption or postponement of the filing of a Registration Statement or the
effectiveness thereof for more than 60 consecutive days. Notwithstanding
anything to the contrary herein, the Company shall not be entitled to exercise
its right to postpone the filing or effectiveness of a Registration Statement
for a Demand Registration pursuant to this Section 2.5 more than once in any
12-month period.
2.6. Selection of Underwriters. If a Demand Registration involves
an underwritten offering, the underwriter or underwriters thereof shall be
selected by the Company.
3. Registration Procedures. Whenever the Principal Stockholder
shall have made a Notice of Demand, the Company shall use all reasonable and
diligent efforts to effect the registration and sale of such Registrable Shares
in accordance with the intended method or methods of disposition thereof and,
pursuant thereto, the Company shall as expeditiously as possible:
(a) prepare and (as soon thereafter as possible but in any event
no later than 90 days from the date a request for registration is made) file
with the Commission a Registration Statement with respect to such Registrable
Shares and use its reasonable best efforts to cause such Registration Statement
to become effective, provided that as far in advance as practicable before
filing a Registration Statement or Prospectus, or any amendments or supplements
thereto, the Company shall furnish copies of all such documents proposed to be
filed to counsel for the Principal Stockholder;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective
until the completion of the distribution of all Registrable Shares included
therein, except in the case of a "shelf registration" for which such period
shall be the earlier of two years or until the date on which all securities
registered under such Registration Statement have been sold or withdrawn
(excluding in each case any period during which any stop order, injunction or
other order or requirement of the Commission or other governmental agency or
court interfering with the Registration Statement is in effect with respect to
such Registration Statement) and comply with the provisions of the applicable
Securities Laws with respect to the sale or other disposition of all securities
covered by such Registration Statement during such period in accordance with the
intended method or methods of disposition by the sellers thereof set forth in
such Registration Statement;
(c) furnish to each seller of Registrable Shares such number of
copies of such Registration Statement, each amendment and supplement thereto,
the Prospectus included in such Registration Statement (including each
preliminary Prospectus) and any other prospectus filed under Rule 424
promulgated under the Securities Act relating to such holder's Registrable
Shares, in conformity with the requirements of the Securities Act, and such
other documents as such seller may reasonably request to facilitate the
disposition of its Registrable Shares under such Registration Statement;
(d) use all reasonable and diligent efforts to register or
qualify such Registrable Shares under such Securities Laws of such jurisdictions
as the Principal Stockholder
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and its Affiliates reasonably request and keep such registration or
qualification in effect for so long as such Registration Statement remains in
effect, and do any and all other acts and things which may be reasonably
necessary or advisable to enable the sellers of Registrable Shares to consummate
the disposition in such jurisdictions of such securities owned by such sellers;
provided that the Company shall not be required to (i) qualify generally to do
business as a foreign Company in any jurisdiction where it would not otherwise
be required to qualify but for this subparagraph, (ii) subject itself to
taxation in any such jurisdiction or (iii) consent to general service of process
in any such jurisdiction.
(e) as soon as practicable notify each seller of Registrable
Shares at any time when a Prospectus relating thereto is required to be
delivered under the applicable Securities Laws, upon discovery of or upon the
happening of any event as a result of which the Prospectus included in such
Registration Statement contains an untrue statement of a material fact or omits
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and, at the request of any such seller, the Company shall
promptly prepare and furnish to each such seller a reasonable number of copies
of a supplement or amendment to such Prospectus so that, as thereafter delivered
to the purchasers of such securities, such Prospectus shall not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that
upon receipt of any notice delivered in accordance with the provisions of this
Section 3(e), each holder of Registrable Shares shall be deemed to have agreed
that such holder shall forthwith discontinue such disposition of Registrable
Shares pursuant to such Registration Statement and Prospectus until the receipt
of the copies of the supplemented or amended Prospectus contemplated by this
Section 3(e) and, if so directed by the Company, shall deliver to the Company
all copies, other than permanent file copies, then in its possession of the
Prospectus relating to such Registrable Shares current at the time of receipt of
such notice;
(f) cause all such Registrable Shares to be listed, on or prior
to the effective date of such Registration Statement, on each national
securities exchange or national market on which shares of Common Stock are then
listed;
(g) enter into such agreements (including underwriting
agreements) as the underwriters or their counsel reasonably request in order to
expedite or facilitate the disposition of such Registrable Shares and, to the
extent reasonably requested by the managing underwriters of any underwritten
offering, send appropriate officers of the Company to attend "road shows"
scheduled in connection with any such registration;
(h) make available for inspection by the Principal Stockholder
and its Affiliates, any underwriter participating in any sale or other
disposition pursuant to such Registration Statement, and any attorney,
accountant or other agent retained by the Principal Stockholder and its
Affiliates or any such underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants (subject to any
requesting party executing a "hold harmless" letter or any other document
reasonably requested by such independent
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accountants to furnish such information) to supply all information reasonably
requested by the Principal Stockholder and its Affiliates or any such
underwriter, attorney, accountant or agent in connection with such Registration
Statement (including the opportunity to discuss the business of the Company with
its officers and the independent public accountants who have certified its
financial statements) as shall be necessary, in the opinion of their respective
counsel, to conduct a reasonable investigation within the meaning of the
Securities Act; and give the Principal Stockholder and its Affiliates, the
underwriters and their respective attorneys, accountants or agents the
opportunity to participate in the preparation of such Registration Statement,
each Prospectus included therein or each Prospectus filed with the Commission in
connection therewith;
(i) promptly notify each seller of Registrable Shares and each
underwriter, if any:
(i) when such Registration Statement or any Prospectus
used in connection therewith has been filed and, with respect to such
Registration Statement or any post-effective amendment thereto, when the same
has become effective;
(ii) of any written comments from the Commission with
respect to any filing referred to in clause (i) and of any written request by
the Commission for amendments or supplements to such Registration Statement or
Prospectus;
(iii) of the notification to the Company by the Commission
or any other regulatory authority of its initiation of any proceeding with
respect to, or of the issuance by the Commission or any other regulatory
authority of, any stop order suspending the effectiveness of such Registration
Statement; and
(iv) of the receipt by the Company of any notification
with respect to the suspension of the qualification of any Registrable Shares
for sale under the applicable securities or blue sky laws of any jurisdiction;
and, in the case of clauses (ii), (iii) and (iv), promptly use all reasonable
and diligent efforts (A) to respond satisfactorily to any such comments and to
file promptly any necessary amendments or supplements, (B) to prevent the
issuance of any stop order or to obtain its withdrawal if such stop order should
be issued and (C) to obtain the withdrawal of any such suspension of
qualification, respectively;
(j) furnish to each seller of Registrable Shares a signed
counterpart, addressed to such seller (and each underwriter, if any) of:
(i) an opinion of counsel to the Company, dated the
effective date of such Registration Statement (and, if such registration
includes an underwritten public offering, dated the date of the closing under
the underwriting agreement), reasonably satisfactory in form and substance to
such seller (and such underwriter); and
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(ii) a "comfort" letter, dated the effective date of such
Registration Statement (and, if such registration includes an underwritten
public offering, dated the date of the closing under the underwriting
agreement), signed by the independent public accountants who have certified the
Company's financial statements included in such Registration Statement, provided
that such seller of Registrable Shares provides such accountants with such
certificates as are reasonably and customarily requested by such accountants;
in each case covering substantially the same matters with respect to such
Registration Statement (and the Prospectus included therein) and, in the case of
the accountants' letter, with respect to events subsequent to the date of such
financial statements and other financial matters, as are customarily covered in
opinions of issuer's counsel and in accountants' letters delivered to the
underwriters in underwritten public offerings of securities;
(k) otherwise use all reasonable and diligent efforts to comply
with all applicable Securities Laws and make available to its security holders,
as soon as reasonably practicable an earning statement satisfying the provisions
of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder; and
(l) cooperate with the Principal Stockholder and its Affiliates
and each underwriter or agent participating in the disposition of such
Registrable Shares and their respective counsel in connection with any filings
required to be made with the National Association of Securities Dealers, Inc.
In the event the Company shall give any notice referred to in
Section 3(e) above, the period referred to in Section 3(b) above shall be
extended by a number of days equal to the number of days during the period from
the date of the giving of such notice to such sellers to and including the date
when each such seller receives the copies of the supplemented or amended
Prospectus contemplated by Section 3(e) above.
4. Registration Expenses. All expenses incident to the Company's
performance of or compliance with this Agreement, including without limitation
(a) all registration, filing and listing fees and all fees of the National
Association of Securities Dealers, Inc., (b) all registration, filing,
qualification and other fees and expenses of complying with securities or blue
sky laws, (c) all word processing, duplicating, printing, messenger and delivery
expenses, (d) the reasonable fees and disbursements of counsel for the Company
and of its independent public accountants, including, without limitation, the
expenses of any "comfort letters" required by or incident to such performance
and compliance, (e) the reasonable fees and disbursements of one legal counsel
selected by the Principal Stockholder, (f) to the extent obtained, in the
discretion of the Company, reasonable premiums and other reasonable costs of
policies of insurance against liabilities arising out of the public offering of
the Registrable Shares being registered, (g) any reasonable fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities (but excluding underwriting discounts and commissions and transfer
taxes, if any, relating to any securities not being sold or otherwise disposed
of by the Company) including, without limitation, reasonable fees and
disbursements of counsel for the underwriter or underwriters or selling holders
in connection with blue sky qualifications of the
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Registrable Shares and determination of their eligibility for investment under
the laws of such jurisdictions and (h) reasonable fees and expenses of other
Persons retained or employed by the Company (all such expenses being herein
called "Registration Expenses"), shall be borne by the Company.
5. Other Agreements. If requested by the underwriters for any
underwritten offering pursuant to a Demand Registration, the Company shall enter
into an underwriting agreement with such underwriter for such offering, such
agreement to contain such representations and warranties by the Company and such
other terms as are generally prevailing in agreements of this type. In any such
case, the Company shall allow the Principal Stockholder and its Affiliates and
their counsel to participate in the negotiation of such underwriting agreement,
and approve its terms, such approval not to be unreasonably withheld. Each of
the holders of Registrable Shares participating in such registration shall be a
party to such underwriting agreement and may, at its option, require that any or
all of the representations and warranties by, and the other agreements on the
part of, the Company to and for the benefit of such underwriters shall also be
made to and for the benefit of such holders of Registrable Shares and that any
or all of the conditions precedent to the obligations of such underwriters under
such underwriting agreement be conditions precedent to the obligations of such
holders of Registrable Shares thereunder. Any such holder of Registrable Shares
shall not be required to make any representations or warranties to or agreements
with the Company other than representations, warranties or agreements regarding
such holder, such holder's Registrable Shares and such holder's intended method
of distribution and any other representation required by law or as reasonably
requested by the underwriters. No Person may participate in any registration
hereunder which is underwritten unless such Person (i) agrees to sell its
securities on the basis provided in such underwriting agreements and (ii)
completes and executes all questionnaires, powers of attorney (which may contain
customary terms regarding the minimum price of the Registrable Shares to be sold
in the subject offering), custody agreements, indemnities and other documents
reasonably required under the terms of such underwriting agreements.
6. Indemnification and Contribution.
6.1. Company Indemnification. The Company agrees to indemnify and
hold harmless (i) each of the Investors, each member thereof, each limited or
general partner of each such member, each limited or general partner of each
such limited or general partner, each of their respective Affiliates and each of
their respective Representatives (collectively, the "Indemnified Parties") from
and against any and all losses, penalties, judgments, suits, costs, claims,
liabilities, damages and expenses (including, without limitation, reasonable
attorneys' fees and disbursements but excluding taxes imposed as a result of
being a direct or indirect owner of the Common Stock or realizing income or gain
with respect thereto) (collectively, "Losses"), incurred by, imposed upon or
asserted against any of the Indemnified Parties as a result of, relating to or
arising out of, the breach of any representation, warranty, agreement or
covenant made by the Company in any Covered Document or in any certificate
delivered by the Company pursuant to any Covered Document (each of which shall
be deemed to have been made for the benefit of such Investor); and (ii) each of
the Indemnified Parties to the fullest extent permitted by law, against any and
all Losses incurred by, imposed upon or asserted against any
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such Indemnified Party as a result of, relating to or arising out of any
litigation, claims, suits or proceedings to which such Indemnified Party is made
a party (other than as a plaintiff) or any penalties, costs, claims,
liabilities, damages or expenses suffered by such Indemnified Party, in each
case in its capacity as a direct or indirect holder or owner of shares of the
Common Stock; provided that unless and until a final and non-appealable judicial
determination shall be made that such Indemnified Party is not entitled to
indemnification under clause (ii) above, each such Indemnified Party shall be
reimbursed for all indemnified Losses under clause (ii) above as they are
incurred; provided, further, that if a final and non-appealable judicial
determination shall be made that such Indemnified Party is not entitled to be
indemnified for Losses under clause (ii) above, such Indemnified Party shall
repay to the Company the amount of such Losses for which the Company shall have
reimbursed such Indemnified Party.
6.2. Contribution.
(a) To the extent the indemnification provided for in Section 6.1
hereof is unavailable to an indemnified party or insufficient in respect of any
Losses referred to therein, then the Company, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such Losses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the indemnified party or parties on the other hand or (ii) if the
allocation provided by clause (i) of this Section 6.3(a) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) in this Section 6.3(a) but also the
relative fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the acts,
statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. In connection with any Registration Statement
filed with the Commission by the Company, (x) the relative benefits received by
the Company on the one hand and the Investors on the other hand shall be deemed
to be in the same respective proportions as the net proceeds from the offering
of any securities registered thereunder the shares of Common Stock (before
deducting expenses) received by the Company and the net proceeds from the
offering of any shares of Common Stock (before deducting expenses) received by
the Investors, bear to the aggregate public offering price of the securities
registered thereunder, (y) the relative fault of the Company on the one hand and
the Investors on the other hand shall be determined by reference to, among other
things, whether any untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Investors and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission and (z) the Investors' respective obligations to
contribute pursuant to this Section 6 are several in proportion to the
respective number of shares of Common Stock they sell under any such
Registration Statement, and not joint.
(b) The Company and the Investors agree that it would not be just
or equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation (even if the Investors were treated as one entity for such
purposes) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 6.2(a) hereof. The amount paid
or payable by an indemnified party as a result of the Losses referred to in
Section
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6.2(a) shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, in connection with any
Registration Statement filed by the Company, none of the Investors shall be
required to contribute any amount in excess of the net proceeds from the
offering of the shares of Common Stock (before deducting expenses) received by
such Investor under any Registration Statement, by reason of any untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
6.3. Procedures. The following provisions shall apply to claims
for Losses from claims by a third party ("Claim"). The indemnifying party shall
have the absolute right, in its sole discretion and expense, to elect to defend,
contest or otherwise protect against any such Claim with legal counsel of its
own selection. The Indemnified Parties or the Indemnified Company Parties, as
the case may be, shall have the right, but not the obligation, to participate,
at their own expense, in the defense thereof through counsel of their own choice
and shall have the right, but not the obligation, to assert any and all
cross-claims or counterclaims they may have. The Indemnified Parties or the
Indemnified Company Parties, as the case may be, shall, and shall cause their
Affiliates to, at all times cooperate in all reasonable ways with, make their
relevant files and records available for inspection and copying by, and make
their employees available or otherwise render reasonable assistance to, the
indemnifying party (i) in its defense of any action for which indemnity is
sought hereunder; and (ii) its prosecution under the last sentence of this
section of any related claim, cross-complaint, counterclaim or right of
subrogation. In the event the indemnifying party fails timely to defend, contest
or otherwise protect against any such suit, action, investigation, claim or
proceeding, the Indemnified Parties or the Indemnified Company Parties, as the
case may be, shall have the right, but not the obligation, to defend, contest,
assert cross-claims or counterclaims or otherwise protect against the same. No
claim or action subject hereto may be settled unless the Indemnified Parties or
the Indemnified Company Parties, as the case may be, and the indemnifying party
consent thereto, such consent not to be unreasonably withheld. The indemnifying
party shall be subrogated to the claims or rights of the Indemnified Parties or
the Indemnified Company Parties, as the case may be, as against any other
Persons with respect to any Loss paid by the indemnifying party under this
section.
7. Miscellaneous.
7.1. No Inconsistent Agreements. The Company shall not hereafter
enter into any agreement with respect to its securities which is inconsistent
with the rights granted to the holders of Registrable Shares in this Agreement
or otherwise conflicts with the provisions hereof. The Company represents and
warrants that, as of the date hereof, the rights granted to the holders of
Registrable Shares hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under any agreement in effect on the date hereof.
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7.2. Authority; Enforceability. Each party has the corporate
power and authority to enter into this Agreement and to carry out its
obligations hereunder. Each 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 each party and constitutes its
legal, valid and binding obligation, enforceable against 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).
7.3. Amendments and Waivers. This Agreement may be amended,
supplemented or modified at any time, and any term or condition of the Agreement
may be waived at any time by the party hereto that is entitled to the benefit
thereof, in each case by a written instrument duly executed by each of the
parties hereto, in the case of any such amendment, supplement or modification,
or by the party waiving such term or condition, in the case of any such waiver.
No waiver by any party of any term or condition of this Agreement, in one or
more instances, shall be deemed to be or construed as a waiver of the same term
or condition of this Agreement on any future occasion.
7.4. Successors and Assigns. The terms and provisions of this
Agreement shall be binding on and inure to the benefit of each of the parties
hereto and their respective successors. Nothing in this Agreement, express or
implied, is intended or shall be construed to confer upon any Person (other than
each other Person entitled to indemnity or contribution under Section 6 hereof
and, prior to the termination of the Stockholders' Agreement, the parties
thereto) any right, remedy or claim under or by virtue of this Agreement.
7.5. Assignment. Except by operation of law, this Agreement shall
not be assigned by any party without the prior written consent of the other
parties hereto; provided that each of the Investors may assign its rights under
Section 6 hereof to any Affiliate to which such Investor may transfer its
ownership of all or any of its Common Stock without such prior written consent.
Any assignment made in violation of the foregoing shall be null and void for all
purposes.
7.6. Term. Section 6 hereof shall remain in effect with respect
to an Investor so long as such Investor may, in the reasonable judgment of
counsel for such Investor as evidenced by a written opinion to such effect,
constitute a "controlling person" with respect to the Company, or be part of a
Group that may constitute such a "controlling person", within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act; provided
that the termination of Section 6 hereof shall not be effective as to any Loss
or Claim that relates to any Covered Document that was executed or filed, or to
any related facts that arose, while Section 6 shall have been in effect, and as
to each of such Losses and Claims the parties' rights and obligations hereunder
shall survive.
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7.7. Severability. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under any present or future law, (a) such
provision shall be fully severable, (b) this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, (c) the remaining provisions of this Agreement shall
remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance here from and (d) in lieu
of such illegal, invalid or unenforceable provision, there shall be added
automatically as a part of this Agreement a legal, valid and enforceable
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible.
7.8. Notices. All notices, requests and other communications
hereunder must be in writing and shall be deemed to have been duly given only if
(a) delivered personally, (b) given by facsimile transmission, (c) mailed by
FedEx or other nationally recognized courier service or (d) mailed (first class
postage prepaid) to the parties at the following addresses or facsimile numbers:
If to the Company, to:
Del Monte Foods Company
Xxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to the Investors, to:
c/o TPG Advisors, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Facsimile No.: 000-000-0000
7.9. CONSTRUCTION. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
7.10. Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which when so executed and delivered
shall be deemed an original, and such counterparts together shall constitute one
instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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The parties hereto have executed this Agreement on the date first set
forth above.
DEL MONTE FOODS COMPANY
By_______________________________________
Name:
Title:
TPG PARTNERS, L.P.
By: TPG GenPar, L.P.
By: TPG Advisors, L.P.
By_______________________________________
Name:
Title:
TPG PARALLEL I, L.P.
By: TPG GenPar, L.P.
By: TPG Advisors, L.P.
By_______________________________________
Name:
Title:
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