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EXHIBIT 4.5
STOCKHOLDERS' AGREEMENT
(Form for Non-Employee Directors -- Directors' Fee Arrangement)
STOCKHOLDERS' AGREEMENT (this "Agreement"), dated as of _____ __,
199__, between Del Monte Foods Company (the "Company") and _________________
(the "Stockholder").
WHEREAS, the Stockholder is a member of the Board of Directors of
the Company (the "Board of Directors") and in such capacity was granted the
opportunity to receive his directors' fees in shares of common stock of the
Company, par value $.01 per share ("Common Stock");
WHEREAS, as a condition to the issuance of shares of Common Stock,
the Stockholder is required to execute this Agreement;
WHEREAS, the Stockholder and the Company desire to enter this
Agreement and to have this Agreement apply to all shares of Common Stock to be
acquired by the Stockholder in respect of his directors' fees, 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 hereafter 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
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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) of the Del Monte Foods Company
Non-Employee Director and Independent Contractor 1997 Stock Incentive Plan,
subject in any such case to the transferee's agreement 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
Stockholder's membership on the Board of Directors for any 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 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 membership on the Board of
Directors as a result of death or permanent disability or (y) ninety-day period
immediately following the termination
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of the Stockholder's membership on the Board of Directors 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 rights 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.
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 ail 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 affiliate
(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
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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.
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(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 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 hereunder 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
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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.
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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.
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[Stockholder]
DEL MONTE FOODS COMPANY
___________________________________
By:
Title:
TPG PARTNERS, L.P.
___________________________________
By:
Title:
