EXHIBIT 4.7
STOCKHOLDER RIGHTS AGREEMENT
STOCKHOLDER RIGHTS AGREEMENT (this "Agreement"), dated as of June 12,
2002 (this "Agreement"), among DEL MONTE FOODS COMPANY, a Delaware corporation
("Del Monte"), TPG PARTNERS, L.P. (together with its successors, the "Principal
Stockholder") and TPG PARALLEL I, L.P. ("Parallel" and, together with its
successors and the Principal Stockholder, the "Stockholders").
WITNESSETH
WHEREAS, pursuant to an Agreement and Plan of Merger (the "Merger
Agreement"), dated as of June 12, 2002, by and among X. X. Xxxxx Company, a
Pennsylvania corporation, ("Heinz"), SKF Foods Inc., a Delaware corporation
("Spinco"), Del Monte and Del Monte Corporation, a New York corporation and a
wholly-owned direct subsidiary of Del Monte ("Merger Sub"), Merger Sub merged
with and into Spinco, with Spinco surviving the merger as a subsidiary of Del
Monte; and
WHEREAS, Del Monte and the Stockholders are entering into this
Agreement to establish certain arrangements with respect to the shares of Del
Monte Common Stock issued by Del Monte to the Stockholders pursuant to the
Merger Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
1. Definitions. Unless otherwise defined herein:
"Company Offering" has the meaning set forth in Section 2(e)(i) hereof.
"Covered Document" shall mean this Agreement, any registration
statement filed by Del Monte concerning the sale of its securities to the public
(including the prospectus included therein, all amendments and supplements
thereto including post-effective amendments and all exhibits and all material
incorporated by reference therein), and each period report or proxy statement
filed by Del Monte with the Commission under the Exchange Act.
"Company Securities" has the meaning set forth in Section 3(b) hereof.
"Del Monte Common Stock" shall mean the capital stock, par value $0.01
per share, of Del Monte.
"Demand Party" shall mean (a) the Principal Stockholder, (b) Parallel
or (c) any other Holder or Holders; provided, that to be a Demand Party under
this clause (c), a Holder or Holders must either individually or in the
aggregate with all other Holders with whom it is acting together to demand
registration own shares of Del Monte Common Stock representing, collectively, at
least 5% of the outstanding shares of Del Monte Common Stock at the time of such
request.
"Effective Date" has the meaning set forth in Section 2(a) hereof.
"Effective Time" has the meaning set forth in the Merger Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Governmental Authority" shall mean any foreign, federal, provincial,
state or local government court, administrative or regulatory agency, board,
bureau or commission or other governmental department, authority or
instrumentality.
"Group" has the meaning specified in Rule 13d-5 under the Exchange Act.
"Holder" shall mean any party hereto (other than Del Monte) and their
permitted successors and assigns, and any holder of Registrable Securities who
agrees in writing to be bound by the provisions of this Agreement.
"Indemnified Del Monte Parties" has the meaning set forth in Section
5(b) hereof.
"Indemnified Parties" has the meaning set forth in Section 5(a) hereof.
"indemnified party" has the meaning set forth in Section 5(c) hereof.
"indemnifying party" has the meaning set forth in Section 5(c) hereof.
"Other Holder" has the meaning set forth in Section 3(b) hereof.
"Other Registrable Securities" has the meaning set forth in Section
3(b) hereof.
"Person" shall mean a natural person, corporation, limited liability
company, partnership, limited partnership or other entity, including a
Governmental Authority.
"Proceeding" has the meaning set forth in Section 5(c) hereof.
"Registrable Securities" shall mean the 24,341,385 shares of Del Monte
Common Stock held by the Stockholders as of the date of this Agreement and any
Del Monte Common Stock or other securities which have been or may be issued or
distributed in respect thereof by way of stock dividend or stock split or other
distribution, recapitalization or reclassification. As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities
when (i) based on an opinion of counsel or a no-action letter of the SEC, in
either case reasonably acceptable to Del Monte, all such securities are
immediately eligible for sale pursuant to Rule 144 (or any successor provision)
under the Securities Act, (ii) such securities shall have been sold pursuant to
Rule 144 (or any successor provision) under the Securities Act, (iii) a
registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (iv) such securities
shall have been otherwise transferred and new certificates for them not bearing
a legend restricting further transfer shall have been delivered by Del Monte,
(v) such securities shall have ceased to be outstanding or (vi) such securities
have been sold or otherwise transferred to any Person who is not a Holder.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including (i) all SEC and
securities exchange or National Association of Securities Dealers, Inc.
registration and filing fees, (ii) all fees and expenses of complying with
securities or blue sky laws (including fees and disbursements of counsel for the
underwriters in connection with blue sky qualifications of the Registrable
Securities), (iii) all printing, messenger and delivery expenses, (iv) all fees
and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange pursuant to Section 4(a)(viii), (v) the
fees and disbursements of counsel for Del Monte and of its independent public
accountants, including the expenses of any special audits and/or "cold comfort"
letters required by or incident to such performance and compliance and (vi) any
fees and disbursements of underwriters customarily paid by the issuers or
sellers of securities; provided, that Registration Expenses shall exclude all
underwriting discounts and commissions, selling or placement agent or broker
fees and commissions and transfer taxes, if any.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"SEC" shall mean the Securities and Exchange Commission, or any
successor governmental body or agency.
"TPG Advisory Agreement" shall mean the Transaction Advisory Agreement,
dated as of April 18, 1997, between Merger Sub and the Principal Stockholder, as
amended by the Letter Agreement, dated as of June 12, 2002, between Merger Sub
and the Principal Stockholder.
"TPG Management Agreement" shall mean the Management Advisory
Agreement, dated as of April 18, 1997, between Merger Sub and the Principal
Stockholder.
"TPG Registration Agreement" shall mean the Registration Rights
Agreement, dated as of July 7, 1998, among Del Monte, the Principal Stockholder
and Parallel.
"TPG Stockholders' Agreement" shall mean the Stockholders' Agreement,
dated as of April 18, 1997, among Del Monte, the Principal Stockholder,
Parallel, BankAmerica Investment Corporation, MIG Partners III, BT Investment
Partners, Inc., West Capital, 399 Venture Partners, Inc. and TCW Capital
Investment Corporation.
"Transaction Delay Notice" has the meaning set forth in Section 2(e)(i)
hereof.
2. Registration on Request.
(a) Request by Holders. At any time after the date that is 60 days
following the date on which the Effective Time occurs (the "Effective Date"),
upon the written request of any Demand Party requesting that Del Monte effect
the registration under the Securities Act of all or part of such Demand Party's
Registrable Securities and specifying the amount and intended method of
disposition thereof, Del Monte thereupon will use its commercially reasonable
efforts to effect the registration under the Securities Act of such Registrable
Securities to the extent necessary to permit the disposition (in accordance with
the intended method thereof as aforesaid) of the Registrable Securities so to be
registered; provided, that Del Monte shall not be obligated to effect any
registration of Registrable Securities under this Section 2(a) unless such
Demand
Party requests that Del Monte register Registrable Securities representing at
least 1% of the outstanding Del Monte Common Stock; provided, further, that Del
Monte shall not be obligated to effect any registration of Registrable
Securities under this Section 2(a) within a period of 180 days after the
effective date of any other registration statement relating to (A) any
registration request under this Section 2(a) or (B) any registration effected
under Section 3 hereof. In no event shall Del Monte be required to effect more
than two (2) requested registrations pursuant to this Section 2, it being
understood that one of such two (2) requested registrations may be a request for
a shelf registration under Rule 415 promulgated under the Securities Act.
(b) Effective Registration Statement. A registration requested pursuant
to this Section 2 will not be deemed to have been effected unless it has become
effective; provided, that if, within 60 days after it has become effective, the
offering of Registrable Securities pursuant to such registration is interfered
with by any stop order, injunction or other order or requirement of the SEC or
other governmental agency or court, such registration will be deemed not to have
been effected.
(c) Selection of Underwriters. If a requested registration pursuant to
this Section 2 involves an underwritten offering, Del Monte shall select the
investment banker or bankers and managers to administer the offering; provided
that such selection shall be subject to the consent of the Demand Party, which
consent shall not be unreasonably withheld.
(d) Priority in Requested Registrations. If a registration pursuant to
this Section 2 involves an underwritten offering by Del Monte and the managing
underwriter with respect to such underwritten offering advises Del Monte that,
in its opinion, the number of securities requested to be included in such
registration (including securities of Del Monte or other Persons which are not
Registrable Securities) exceeds the largest number of securities which can be
sold in such offering without a reasonable likelihood of adversely affecting the
price, timing or distribution of the securities being offered, then Del Monte
will include in such registration (i) first, the maximum number of Registrable
Securities requested to be included in such registration by the Holders which,
in the underwriter's opinion, can be sold, pro rata based on the number of
Registrable Securities requested to be included by such Holders, until all of
such Registrable Securities have been registered, (ii) second, the number of
securities requested to be included in such registration by the holders of
securities of Del Monte pursuant to Section 3 hereof or pursuant to any
incidental or piggyback registration rights included in another agreement which,
in the underwriter's opinion, can be sold, pro rata based on the number of
securities requested to be included by such holders and (iii) third, the maximum
number of securities requested to be included in such registration by Del Monte
which, in the underwriter's opinion, can be sold without having such an adverse
effect.
(e) Company's Ability to Postpone.
(i) If, upon receipt of a registration request pursuant to
Section 2(a), Del Monte is advised by a nationally recognized
investment banking firm selected by Del Monte that, in such firm's
opinion, a registration at the time and on the terms requested would
adversely affect any public offering of securities of Del Monte by Del
Monte or its subsidiaries (other than in connection with employee
benefit and similar plans) or by or on behalf of any stockholder of Del
Monte exercising a demand registration right
(collectively, a "Company Offering") with respect to which Del Monte
has commenced preparations for a registration or received notice of the
exercise of such demand registration right prior to the receipt of a
registration request pursuant to Section 3(a), and Del Monte furnishes
the Principal Stockholder with a certificate signed by the chief
executive officer or chief financial officer of Del Monte to such
effect (the "Transaction Delay Notice") promptly after such request,
Del Monte shall not be required to effect a registration pursuant to
Section 2(a) until the earliest of (A) thirty (30) days after the
completion of such Company Offering, (B) promptly after the abandonment
of such Company Offering or (C) sixty (60) days after the date of the
Transaction Delay Notice; provided, however, that in any event Del
Monte shall not be required to effect any registration prior to the
termination, waiver or reduction of any "blackout period" required by
the underwriters to be applicable to the Holders or Del Monte, if any,
in connection with any Company Offering.
(ii) With respect to any registration statement to be filed in
connection with a registration request pursuant to Section 2(a), (i) if
Del Monte determines in the good faith judgment of the Board of
Directors that such registration would cause Del Monte to disclose
material non-public information which disclosure would be materially
detrimental to Del Monte or would materially interfere with any
material financing, acquisition, corporate reorganization or merger or
other transaction involving Del Monte or any of its subsidiaries and
the Board of Directors concludes, as a result of such potential
disclosure or interference, that it is in the best interests of Del
Monte to defer the filing of such registration statement at such time
and (ii) Del Monte shall furnish to the Principal Stockholder a
Transaction Delay Notice stating that in the good faith judgment of the
Board of Directors, it would be materially detrimental to Del Monte for
such registration statement to be filed in the near future and that it
is, therefore, in the best interests of Del Monte to defer the filing
of such registration statement, then Del Monte shall have the right to
defer such filing; provided, that such deferral, together with any
other postponement, deferral or suspension of its obligations under
Section 2(e), shall not be effected more than twice in any twelve-month
period or for a period of more than ninety (90) days, in the aggregate,
for all such postponements, deferrals or suspensions over such
twelve-month period.
(iii) In connection with a registration request pursuant to
Section 2(a), Del Monte may postpone for up to a total of 45 days the
filing or the effectiveness of a registration statement if Del Monte
determines in the good faith judgment of the Board of Directors that
such registration request would have a material adverse effect on any
proposal or plan by Del Monte 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 Del Monte and
delivered at such time to the Principal Stockholder. Any postponement
by Del Monte pursuant to this Section 2(e)(iii), together with any
other postponement, deferral or suspension of its obligations under
Section 2(e), shall not be effected more than twice in any twelve-month
period or for a period of more than ninety (90) days, in the aggregate,
for all such postponements, deferrals or suspensions over such
twelve-month period.
(iv) At any time when a registration statement effected
pursuant to Section 2(a) hereunder relating to Registrable Securities
is effective and a prospectus relating thereto is required to be
delivered under the Securities Act within the appropriate period
mentioned in clause (a)(ii) of Section 4 hereunder, that Del Monte
becomes aware that the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a
material fact or omits to state a 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, to the
extent that the amendment or supplement to such prospectus necessary to
correct such untrue statement of a material fact or omission to state a
material fact would require disclosure of material information which
Del Monte has a bona fide business purpose for preserving as
confidential and Del Monte provides the Holders written notice thereof
promptly after Del Monte makes such determination, the Holders shall
suspend sales of Registrable Securities pursuant to such registration
statement and Del Monte shall not be required to comply with its
obligations under Section 4(a)(vi) until the earlier of (A) the date
upon which such material information is disclosed to the public or
ceases to be material or (B) 60 days after the Holders' receipt of such
written notice.
3. Incidental Registrations.
(a) Right to Include Registrable Securities. Each time Del Monte
proposes to register the Del Monte Common Stock under the Securities Act (other
than a registration on Form S-4 or S-8, or any successor or other forms
promulgated for similar purposes), whether or not for sale for its own account,
pursuant to a registration statement on which it is permissible to register
Registrable Securities for sale to the public under the Securities Act, it will
give prompt written notice to all Holders of Registrable Securities of its
intention to do so and of the Holders' rights under this Section 3. Upon the
written request of any such Holder made within 15 days after the receipt of any
such notice (which request shall specify the number of Registrable Securities
intended to be disposed of by such Holder), Del Monte will use its commercially
reasonable efforts to effect the registration under the Securities Act of all
Registrable Securities which Del Monte has been so requested to register by the
Holders thereof; provided, that (i) if, at any time after giving written notice
of its intention to register any securities and prior to the effective date of
the registration statement filed in connection with such registration, Del Monte
shall determine for any reason not to proceed with the proposed registration,
Del Monte may, at its election, give written notice of such determination to
each Holder of Registrable Securities and thereupon shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration and (ii) if such registration involves an underwritten offering by
Del Monte (underwritten, at least in part, by Persons who are not affiliates of
Del Monte or any Holder), all Holders requesting to be included in Del Monte's
registration must sell their Registrable Securities to such underwriters who
shall have been selected by Del Monte on the same terms and conditions as apply
to Del Monte, with such differences, including any with respect to
indemnification and contribution, as may be customary or appropriate in combined
primary and secondary offerings. If a proposed registration pursuant to this
Section 3(a) involves such an underwritten public offering, any Holder making a
request to be included in such registration may elect in writing, prior to the
effective date of the registration statement filed in connection with such
registration, to withdraw such request and not to have such securities
registered in connection with such registration.
(b) Priority in Incidental Registrations. If a registration pursuant to
this Section 3 involves an underwritten offering by Del Monte (as described in
Section 3(a)(ii)) and the managing underwriter with respect to such offering
advises Del Monte that, in its opinion, the number of securities requested to be
included in such registration exceeds the largest number of securities which can
be sold in such offering without a reasonable likelihood of adversely affecting
the price, timing or distribution of the securities being offered, then Del
Monte will include in such registration (i) first, all the securities Del Monte
initially proposes to sell for its own account if Del Monte initiates such
registration or for the account of any stockholder pursuant to any contractual
requirement to register securities (unless such stockholder is exercising
incidental registration rights subject to a proration provision similar to the
provisions set forth in this Section 3(b) or demand registration rights subject
to a proration provision similar to the provisions applicable to a Demand Party
as set forth in Section 2(d) hereof, in which case the provisions of the
following clause (ii) shall apply to the securities of such stockholder), (ii)
second, to the extent that the number of securities referred to in clause (i) is
less than the number of securities which Del Monte has been advised can be sold
in such offering without having the adverse effect referred to above, all
Registrable Securities requested to be included in such registration by the
Holders pursuant to Section 3(a), all securities of the class then being
registered ("Other Registrable Securities") requested to be included by any
holder (each, an "Other Holder") of Other Registrable Securities pursuant to any
similar registration rights agreement and, if Del Monte does not initiate the
registration, securities of the class then being registered which Del Monte
proposes to sell for its own account ("Company Securities"), provided, that if
the number of Registrable Securities, Other Registrable Securities and Company
Securities so requested to be included in such registration, together with the
number of securities to be included in such registration pursuant to clause (i)
of this Section, exceeds the number which Del Monte has been advised can be sold
in such offering without having the adverse effect referred to above, the number
of such Registrable Securities, Other Registrable Securities and Company
Securities requested to be included in such registration by the Holders pursuant
to Section 3(a), the Other Holders pursuant to any similar registration rights
agreement and Del Monte shall be limited to such extent and shall be allocated
pro rata among (A) all Holders requesting such registration pursuant to Section
3(a), (B) all Other Holders requesting such registration pursuant to any similar
registration rights agreement and (C) Del Monte, on the basis of the relative
number of securities requested to be included in such registration.
(c) Other Agreements. Each Holder agrees that they will execute such
other agreements as Del Monte may reasonably request to further accomplish the
purposes of this Section 3.
4. Registration Procedures
(a) Obligations With Respect to Registration. If and whenever Del Monte
is required to use its commercially reasonable efforts to effect or cause the
registration of any Registrable Securities under the Securities Act as provided
in this Agreement, Del Monte shall, as expeditiously as possible:
(i) prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its commercially
reasonable efforts to cause such registration statement to become and
remain effective; provided, that Del Monte may
discontinue any registration of its securities which is being effected
pursuant to Section 3 at any time prior to the effective date of the
registration statement relating thereto;
(ii) prepare and file with the SEC 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 for a period not in excess of 180 days or such
lesser period of time as Del Monte or any Holder may be required under
the Securities Act to deliver a prospectus in connection with any sale
of Registrable Securities and to comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by such registration statement during such period in accordance
with the intended methods of disposition by the Holders set forth in
such registration statement; provided, however, that in the case of any
registration of Registrable Securities which are intended to be offered
on a continuous or delayed basis, such 180 day period shall be extended
until all such Registrable Securities are sold or become saleable
pursuant to Rule 144(k) under the Securities Act, provided, that Rule
415, or any successor rule under the Securities Act, permits an
offering on a continuous or delayed basis; provided, further, that
applicable rules under the Securities Act governing the obligation to
file a post-effective amendment permit, in lieu of filing a
post-effective amendment which (y) includes any prospectus required by
Section 10(a) of the Securities Act or (z) reflects facts or events
representing a material or fundamental change in the information set
forth in the registration statement, the incorporation by reference of
information required to be included in (y) and (z) above to be
contained in periodic reports filed pursuant to Section 13 or 15(d) of
the Exchange Act in the registration statement; and provided, further,
that before filing a registration statement or any prospectus naming
the Holders, or any amendments or supplements thereto, Del Monte will
furnish to counsel for the Principal Stockholder copies of all
documents proposed to be filed;
(iii) furnish to each seller of such Registrable Securities
such number of copies of such registration statement and of each
amendment and supplement thereto (in each case including all exhibits),
such number of copies of the prospectus included in such registration
statement (including each preliminary prospectus and summary prospectus
and prospectus supplement, as applicable), in conformity with the
requirements of the Securities Act, and such other documents as such
seller may reasonably request in order to facilitate the disposition of
the Registrable Securities by such seller;
(iv) use its reasonable efforts to register or qualify such
Registrable Securities covered by such registration statement under
such other securities or blue sky laws of such jurisdictions as the
Principal Stockholder shall reasonably request, and do any and all
other acts and things which may be reasonably necessary or advisable to
enable the sellers of Registrable Securities pursuant to such
registration statement to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such sellers,
except that Del Monte shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any
jurisdiction where, but for the requirements of this Section 4(a)(iv),
it would not be obligated to be so qualified, to
subject itself to taxation in any such jurisdiction, or to consent to
general service of process in any such jurisdiction;
(v) use its reasonable efforts to cause such Registrable
Securities covered by such registration statement to be registered with
or approved by such other governmental agencies or authorities as may
be necessary to enable the seller or sellers thereof to consummate the
disposition of such Registrable Securities;
(vi) notify each seller of any such Registrable Securities
covered by such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act
within the appropriate period mentioned in Section 4(a)(ii), upon
becoming aware that the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a
material fact or omits to state a 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 prepare and furnish to such seller a
reasonable number of copies of an amended or supplemental prospectus as
may be necessary so that, as thereafter delivered to the purchasers of
such Registrable Securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a 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;
(vii) otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable (but not more than
18 months) after the effective date of the registration statement, an
earnings statement which shall satisfy the provisions of Section 11(a)
of the Securities Act and the rules and regulations promulgated
thereunder;
(viii) use its reasonable efforts to cause all such
Registrable Securities to be listed on any securities exchange on which
the Del Monte Common Stock is then listed, if such Registrable
Securities are not already so listed and if such listing is then
permitted under the rules of such exchange, and provide a transfer
agent and registrar for such Registrable Securities covered by such
registration statement no later than the effective date of such
registration statement;
(ix) in the case of an underwritten offering, enter into such
customary agreements (including an underwriting agreement in customary
form) and take such other actions as (x) the Principal Stockholder or
(y) the underwriters, if any, reasonably request in order to expedite
or facilitate the disposition of such Registrable Securities and, to
the extent reasonably requested by the managing underwriters of any
underwritten offering, send appropriate officers of Del Monte to attend
"road shows" scheduled in connection with any such registration, except
to the extent such activity would materially interfere with the conduct
of Del Monte's business;
(x) in the case of an underwritten offering, use its
commercially reasonable efforts to obtain a "cold comfort" letter or
letters from Del Monte's independent public accountants in customary
form and covering matters of the type
customarily covered by "cold comfort" letters as the Principal
Stockholder shall reasonably request; and
(xi) in the case of an underwritten offering, make available
for inspection by representatives of the Principal Stockholder, by any
underwriter participating in any disposition to be effected pursuant to
such registration statement and by any attorney, accountant or other
agent retained by the Principal Stockholder or any such underwriter, at
the offices where normally kept, during reasonable business hours, all
pertinent financial and other records, corporate documents and
properties of Del Monte, and cause all of Del Monte's officers and
accountants to supply all information reasonably requested by the
Principal Stockholder or any such underwriter, attorney, accountant or
agent in connection with such registration statement as shall be
necessary, in the opinion of their respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act;
provided, however, that (i) the Principal Stockholder and the
underwriters and their respective counsel, accountants and other agents
shall have entered into a confidentiality agreement reasonably
acceptable to Del Monte and (ii) the Principal Stockholder and the
underwriters and their respective counsel, accountants and other agents
shall use their reasonable best efforts to minimize the disruption to
Del Monte's business and coordinate any such investigation of the
books, records and properties of Del Monte and any discussions with Del
Monte's officers and accountants so that all such investigations occur
at the same time and all such discussions occur at the same time; and
provided, further that any information that is delivered to the
Principal Stockholder or the underwriters or their respective counsel,
accountants and other agents shall be kept confidential by the
Principal Stockholder or any such underwriter, attorney, accountant or
agent unless (i) disclosure of such information is required by court or
administrative order, (ii) disclosure of such information, in the
opinion of counsel to any such inspecting party, is necessary to avoid
or correct a misstatement or omission of a material fact in the
registration statement, prospectus or any supplement or post-effective
amendment thereto or disclosure is otherwise required by law or (iii)
such information becomes generally available to the public other than
as a result of a disclosure or failure to safeguard by any such
inspecting party; without limiting the foregoing, no such information
shall be used by any such inspecting party as the basis for any market
transactions in securities of Del Monte or its subsidiaries in
violation of law.
Del Monte may require each seller of Registrable Securities as to which
any registration is being effected to furnish Del Monte with such information
regarding such seller and pertinent to the disclosure requirements relating to
the registration and the distribution of such securities as Del Monte may from
time to time reasonably request in writing.
Each seller of Registrable Securities agrees that, upon receipt of any
notice from Del Monte of the happening of any event of the kind described in
Section 4(a)(vi), such seller will forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such seller's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 4(a)(vi) and, if so
directed by Del Monte, such seller will deliver to Del Monte (at Del Monte's
expense) all copies, other than permanent file copies then in such seller's
possession, of the prospectus covering such Registrable Securities current at
the time of receipt of such notice. In the event Del Monte shall
give any such notice, the period mentioned in Section 4(a)(ii) shall be extended
by the number of days during the period from the date of the giving of such
notice pursuant to Section 4(a)(vi) and through the date when each seller of
Registrable Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated by
Section 4(a)(vi).
(b) Expenses. Del Monte will pay all Registration Expenses in
connection with each registration of Registrable Securities requested pursuant
to Section 2 or Section 3 hereof, and the Holders on whose behalf Registrable
Securities are being sold shall pay all underwriting discounts and commissions,
selling or placement agent or broker fees and commissions and transfer taxes, if
any, relating to the sale or disposition of such Holders' Registrable Securities
pursuant to a registration statement effected pursuant to Section 2 or Section 3
hereof.
5. Indemnification.
(a) Indemnification by Del Monte. In the event of any registration of
any securities of Del Monte under the Securities Act pursuant to Sections 2 or
3, Del Monte hereby indemnifies and agrees to hold harmless, to the full extent
permitted by law, the seller of any Registrable Securities covered by such
registration statement, each affiliate of such seller and their respective
general and limited partners (and the directors, officers, affiliates and
controlling Persons thereof), each other Person who participates as an
underwriter in the offering or sale of such securities and each other Person, if
any, who controls such seller or any such underwriter (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act)
(collectively, the "Indemnified Parties"), from and against any and all losses,
claims, damages or liabilities, joint or several, and expenses (including,
without limitation, reasonable attorneys' fees and disbursements) to which such
Indemnified Party may become subject under the Securities Act, common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof, whether or not such Indemnified Party is a party
thereto) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in any registration statement
under which such securities were registered under the Securities Act, any
preliminary, final or summary prospectus contained therein, any form of
prospectus or any amendment or supplement thereto or (ii) any omission or
alleged omission to state therein a material fact required to be stated therein,
except to the extent that the same arise out of or are based upon information
furnished to Del Monte by such Indemnified Party or the related Holder for use
therein, or necessary to make the statements therein not misleading (or, in the
case of any preliminary, final or summary prospectus, form of prospectus or
amendment or supplement thereto, necessary to make the statements made, in the
light of the circumstances under which they were made, not misleading);
provided, that Del Monte shall not be liable to any Indemnified Party in any
such case to the extent that any such loss, claim, damage, liability (or action
or proceeding in respect thereof) or expense arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement or any amendment or supplement thereto or in
any such preliminary, final or summary prospectus in reliance upon and in
conformity with information with respect to such Indemnified Party furnished to
Del Monte by such Indemnified Party for use in the preparation thereof;
provided, further, that Del Monte shall not be liable to any Indemnified Party
to the extent that any such losses, claims, damages or liabilities arise out of
or are based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary prospectus
if (x) such Indemnified Party or the related Holder failed to send or deliver
(if it had a duty to do so) a copy of the prospectus with or prior to the
delivery of written confirmation of the sale by such Indemnified Party or the
related Holder to the Person asserting the claim from which such losses, claims,
damages or liabilities arise, (y) the prospectus would have corrected such
untrue statement or alleged untrue statement or such omission or alleged
omission and (z) Del Monte has complied with its obligations under Section
4(a)(vi). For purposes of the last proviso to the immediately preceding
sentence, the term "prospectus" shall not be deemed to include the documents
incorporated by reference therein.
(b) Indemnification by the Holders. In the event of any registration of
any securities of Del Monte in which a Holder is participating, such Holder
hereby indemnifies and agrees to hold harmless, to the full extent permitted by
law, Del Monte and its affiliates, directors, officers, agents and employees,
each Person who controls Del Monte (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act) and the affiliates,
directors, officers, agents or employees of such controlling persons
(collectively, the "Indemnified Del Monte Parties"), from and against all
losses, claims, damages or liabilities and expenses to which such Indemnified
Del Monte Party may become subject under the Securities Act, common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof, whether or not such Indemnified Del Monte Party
is a party thereto) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement, preliminary, final or summary prospectus contained therein, any form
of prospectus or any amendment or supplement thereto, or arising out of or based
upon any omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein not misleading (in
the case of any preliminary, final or summary prospectus, any form of prospectus
or amendment or supplement thereto, necessary to make the statements made, in
the light of the circumstances under which they were made, not misleading), to
the extent, but only to the extent, that such untrue statement or alleged untrue
statement is contained in, or such omission or alleged omission is required to
be contained in, any information furnished by such Holder to Del Monte for use
in such registration statement, preliminary, final or summary prospectus, form
of prospectus or any amendment or supplement thereto; provided, however, that
such Holder shall not be liable in any such case to the extent that the Holder
has furnished to Del Monte in writing within a reasonable period of time prior
to the filing of any such registration statement, preliminary, final or summary
prospectus, form of prospectus or amendment or supplement thereto information
expressly for use in such registration statement, preliminary, final or summary
prospectus, form of prospectus or any amendment or supplement thereto which
corrected or made not misleading information previously furnished to Del Monte,
and Del Monte failed to include such information therein; provided further,
however, that the obligation to indemnify shall be several, and not joint and
several, among such Holders.
(c) Conduct of Indemnification Proceedings. If any Person shall be
entitled to indemnity hereunder (an "indemnified party"), such indemnified party
shall give prompt notice to the party or parties from which such indemnity is
sought (the "indemnifying parties") of the commencement of any action, suit,
proceeding or investigation or written threat thereof (a "Proceeding") with
respect to which such indemnified party seeks indemnification or contribution
pursuant hereto; provided, however, that the failure to so notify the
indemnifying parties shall not relieve the indemnifying parties from any
obligation or liability except to the
extent that the indemnifying parties have been materially prejudiced by such
failure. The indemnifying parties shall have the right, exercisable by giving
written notice to an indemnified party promptly after the receipt of written
notice from such indemnified party of such Proceeding, to assume, at the
indemnifying parties' expense, the defense of any such Proceeding with counsel
reasonably satisfactory to such indemnified party; provided, however, that an
indemnified party or parties (if more than one such indemnified party is named
in any Proceeding) shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such indemnified party or parties
unless: (1) the indemnifying parties agree to pay such fees and expenses; (2)
the indemnifying parties fail promptly to assume the defense of such Proceeding
or fail to employ counsel reasonably satisfactory to such indemnified party or
parties; or (3) the named parties to any such Proceeding (including any
impleaded parties) include both such indemnified party or parties and the
indemnifying parties or an affiliate of the indemnifying parties or such
indemnified parties, and there may be one or more defenses available to such
indemnified party or parties that are different from or additional to those
available to the indemnifying parties, in which case, if such indemnified party
or parties notifies the indemnifying parties in writing that it elects to employ
separate counsel at the expense of the indemnifying parties, the indemnifying
parties shall not have the right to assume the defense thereof and such counsel
shall be at the expense of the indemnifying parties, it being understood,
however, that, unless there exists a conflict among indemnified parties, the
indemnifying parties shall not, in connection with any such Proceeding and any
substantially similar or related Proceedings in the same jurisdiction, arising
out of the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (together with appropriate
local counsel) at any time for such indemnified party or parties. Whether or not
such defense is assumed by the indemnifying parties, such indemnifying parties
or indemnified party or parties will not be subject to any liability for any
settlement made without its or their consent (which consent shall not be
unreasonably withheld or delayed). The indemnifying parties shall not consent to
entry of any judgment or enter into any settlement which (i) provides for other
than monetary damages without the consent of the indemnified party or parties
(which consent shall not be unreasonably withheld or delayed) or (ii) that does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party or parties of a release, in form and
substance satisfactory to the indemnified party or parties, from all liability
in respect of such Proceeding for which such indemnified party would be entitled
to indemnification hereunder.
(d) Contribution. If recovery is not available under the foregoing
indemnification provisions of this Section 5 for any reason other than as
expressly specified therein, the parties entitled to indemnification by the
terms thereof shall be entitled to contribution to liabilities and expenses
except to the extent that contribution is not permitted under Section 11(f) of
the Securities Act. In determining the amount of contribution to which the
respective parties are entitled, there shall be considered the relative fault of
each party in connection with the actions which resulted in the indemnified
losses, the relative benefits received by each party from the offering of the
Registrable Securities (taking into account the portion of the proceeds received
by each), the parties' relative knowledge and access to information concerning
the matter with respect to which the claim was asserted, the opportunity to
correct and prevent any misstatement or omission and any other equitable
considerations appropriate under the circumstances. The amount paid or payable
by a party under this Section 5(d) as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. 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.
(e) Non-Exclusivity. The obligations of the parties under this Section
5 shall be in addition to any liability which any party may otherwise have to
any other party.
(f) Rule 144. Del Monte covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder (or, if Del Monte is not
required to file such reports, it will, upon the request of any Holder of
Registrable Securities, make publicly available such information), all to the
extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (i) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (ii) any similar rule or regulation
hereafter adopted by the SEC. Notwithstanding anything contained in this Section
5, Del Monte may deregister under Section 12 of the Exchange Act if it is then
permitted to do so pursuant to the Exchange Act and the rules and regulations
thereunder.
6. Restrictions on Transfer. Neither of the Stockholders shall,
directly or indirectly, sell, transfer any beneficial interest in, pledge,
hypothecate or otherwise dispose of (i) any Del Monte Common Stock during the
period from the Effective Date until the date which is 60 days after the
Effective Date or (ii) during the period beginning on the date which is 60 days
after the Effective Date and ending on the date which is 120 days after the
Effective Date, a number of shares of Del Monte Common Stock which is greater
than 50% of the total number of shares of Del Monte Common Stock which such
Stockholder holds as of the Effective Date (which number shall be adjusted from
time to time to take account of any stock split, dividend, spin-off or
combination, or any reclassification, recapitalization, merger, consolidation,
exchange or other similar reorganization or business combination).
7. Termination of Agreements. Each party hereto hereby agrees that each
of the TPG Advisory Agreement, the TPG Management Agreement, the TPG
Stockholders' Agreement and the TPG Registration Agreement, and any other
agreement between Del Monte or any of its subsidiaries, on the one hand, and
either of the Stockholders or any of their respective affiliates (other than Del
Monte and its subsidiaries), on the other hand, is terminated as of Effective
Date, except for this Agreement.
8. Effective Date. The parties hereto hereby agree that this Agreement
shall become effective at the Effective Time.
9. Miscellaneous.
(a) Holdback Agreement. If any registration of Registrable Securities
shall be in connection with an underwritten public offering, each Holder of
Registrable Securities agrees not to effect any public sale or distribution,
including any sale pursuant to Rule 144 under the Securities Act, of any equity
securities of Del Monte, or of any security convertible into or exchangeable or
exercisable for any equity security of Del Monte (in each case, other than as
part of such underwritten public offering), during the seven days prior to, and
during the 90-day period (or such lesser period as the managing underwriters may
permit) beginning on, the effective date of such registration, and Del Monte
hereby also so agrees.
(b) Amendments. No amendment, modification, termination or waiver of
any provision of this Agreement shall be effective against any party to this
Agreement unless it shall be in writing and signed and delivered by or on behalf
of Del Monte and such party. Each Holder of any shares of Registrable Securities
agrees to be bound by any consent given by the Stockholders in this Section
9(b).
(c) Assignment; Binding Effect. Neither this Agreement nor any of the
rights, benefits or obligations hereunder may be assigned by any of the parties
hereto, whether by operation of law or otherwise, without the prior written
consent of the other parties; provided, that each Holder may assign any of its
rights and obligations hereunder to any of its respective affiliates that is
directly or indirectly controlled by it or to any of its fund investors to whom
it distributes the Registrable Securities. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns. In addition, and whether or not any express assignment
shall have been made, the provisions of this Agreement which are for the benefit
of the parties hereto other than Del Monte shall also be for the benefit of and
enforceable by any subsequent Holder of any shares of Registrable Securities,
subject to the provisions contained herein.
(d) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given upon (a) a transmitter's confirmation of a
receipt of a facsimile transmission (but only if followed by confirmed delivery
of a standard overnight courier the following business day or if delivered by
hand the following business day), (b) confirmed delivery of a standard overnight
courier or when delivered by hand or (c) the expiration of five business days
after the date mailed by certified or registered mail (return receipt
requested), postage prepaid, to the parties at the addresses set forth below:
If to Del Monte Foods Company:
One Market @ The Landmark
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Secretary
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxx & Xxxxxxxx L.L.P.
Xxx Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
If to either of the Stockholders:
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx Xxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxx, Xxxx & Xxxxxxx, P.C.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
(e) Interpretation. The article and section headings and the table of
contents contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. As used
in this Agreement, unless otherwise provided to the contrary, (a) all references
to days or months shall be deemed references to calendar days or months and (b)
any reference to a "Section," "Article," "Exhibit" or "Letter" shall be deemed
to refer to a section or article of this Agreement or an exhibit or schedule to
this Agreement. The words "hereof," "herein" and "hereunder" and words of
similar import referring to this Agreement refer to this Agreement as a whole
and not to any particular provision of this Agreement. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation." Unless otherwise
specifically provided for herein, the term "or" shall not be deemed to be
exclusive.
(f) Severability. If any term or provision of this Agreement or the
application of any such term or provision to any Person or circumstance is
determined by a nonappealable decision by a court, administrative agency or
arbitrator to be invalid, illegal or unenforceable by any rule of law or public
policy, all other terms and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or
provision is invalid, illegal or unenforceable, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
(g) Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original but all of which shall constitute one
agreement binding on each of the parties hereto, notwithstanding that not all
parties are signatories to the original or
the same counterpart. This Agreement may be executed by facsimile signatures of
the parties hereto.
(h) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware without giving effect to
the conflicts of law principles thereof. EACH OF THE PARTIES TO THIS AGREEMENT
HEREBY IRREVOCABLY AND UNCONDITIONALLY (i) AGREES TO BE SUBJECT TO, AND HEREBY
CONSENTS AND SUBMITS TO, THE JURISDICTION OF THE COURTS OF THE STATE OF DELAWARE
AND OF THE FEDERAL COURTS SITTING IN THE STATE OF DELAWARE, (ii) TO THE EXTENT
SUCH PARTY IS NOT OTHERWISE SUBJECT TO SERVICE OF PROCESS IN THE STATE OF
DELAWARE, HEREBY APPOINTS THE CORPORATION TRUST COMPANY AS SUCH PARTY'S AGENT IN
THE STATE OF DELAWARE FOR ACCEPTANCE OF LEGAL PROCESS AND (iii) AGREES THAT
SERVICE MADE ON ANY SUCH AGENT SET FORTH IN (ii) ABOVE SHALL HAVE THE SAME LEGAL
FORCE AND EFFECT AS IF SERVED UPON SUCH PARTY PERSONALLY WITHIN THE STATE OF
DELAWARE.
(i) Specific Performance; Remedies. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any court of the
United States located in the State of Delaware or in any Delaware state court.
Except for the foregoing remedy of specific performance, the parties agree that
they shall have no rights or claims against one another for breaches of this
Agreement except in the case of fraud or any willful and material breach by a
party of any covenant or other agreement included in this Agreement.
(j) Further Assurances. From time to time, at the reasonable request of
any other party hereto and without further consideration, each party hereto
shall execute and deliver such additional documents and take all such further
action as may be necessary or desirable to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement.
(k) No Third-Party Rights. Nothing in this Agreement, expressed or
implied, shall or is intended to confer upon any Person other than the parties
hereto or their respective successors or assigns, any rights or remedies of any
nature or kind whatsoever under or by reason of this Agreement.
(l) Entire Agreement. This Agreement constitutes the entire agreement
of the parties hereto and supersedes all prior and contemporaneous agreements
and understandings (including any term sheets), both written and oral, between
the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be executed on its behalf as of the date
first written above.
DEL MONTE FOODS COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Treasurer
TPG PARTNERS, L.P.
By: TPG Genpar, L.P., as general partner
By: TPG Advisors, Inc., as general
partner
By: /s/ Xxxx Xxxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
TPG PARALLEL I, L.P.
By: TPG Genpar, L.P., as general partner
By: TPG Advisors, Inc., as general
partner
By: /s/ Xxxx Xxxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
