As filed with the Securities and Exchange Commission
on November 24, 1997
Registration No. 333-
=================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
Del Monte Foods Company
(Exact Name of Registrant as Specified in Its Charter)
Maryland 13-3542950
(State or Other (I.R.S. Employer
Jurisdiction of Identification
Incorporation or Number)
or Organization)
One Market
San Francisco, California 94105
(415) 247-3000
(Address of Registrant's Principal Executive Offices)
EMPLOYEE STOCK PURCHASE PLAN
1997 STOCK INCENTIVE PLAN
(Full Titles of the Plans)
--------------------------
William R. Sawyers, Esq.
Vice President, General Counsel and Secretary
Del Monte Foods Company
One Market
San Francisco, California 94105
(415) 247-3000
(Name, Address, and Telephone Number,
Including Area Code, of Agent for Service)
--------------------------
CALCULATION OF REGISTRATION FEE
=================================================================
Title of
each class Proposed Proposed Amount
of maximum maximum of
securities Amount offering aggregate regis-
to be to be price offering tration
registered registered per share price (1) fee
- ----------------------------------------------------------------
Common
Stock,
par value
$.01
per share 14,508(2) $1,000 $14,508,000 $4,397
- -----------------------------------------------------------------
(1) Estimated solely for the purposes of calculating the
registration fee pursuant to Rule 457(h) under the Securities
Act of 1933, as amended (the "Act"), based on the book value
of such securities as of November 20, 1997.
(2) Together with an indeterminate number of shares that may be
necessary to adjust the number of shares reserved for
issuance pursuant to the Employee Stock Purchase Plan and the
1997 Stock Incentive Plan as the result of a stock split,
stock dividend or similar adjustment of the outstanding
common stock of Del Monte Foods Company.
<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following information shall be deemed to be incorporated
by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents: (i) the Annual
Report on Form 10-K for the Fiscal Year ended June 30, 1997, of
Del Monte Foods Company (the "Company"), (ii) the Company's
Quarterly Report on Form 10-Q for the Quarter ended September 30,
1997, and (iii) all documents filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the
termination of the offering of its common stock offered hereby.
Any statement contained in a document incorporated or deemed to
be incorporated herein by reference, or contained in this
Registration Statement, shall be deemed to be modified or
superseded for purposes of this Registration Statement to the
extent that a statement contained in any subsequently filed
document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
The securities being offered hereby are shares of common
stock, par value $.01 per share, of the Company. As of the date
hereof, the charter of the Company authorized the Company to
issue capital stock consisting of 1,000,000 shares of common
stock, $.01 par value ("Common Stock"), and 1,000,000 shares of
new preferred stock which may be issued in multiple series, the
terms, provisions and preferences of which may be designated from
time to time by the Board of Directors of the Company.
As of the date hereof, the Company issued and had
outstanding 140,000 shares of Common Stock, and 37,253.388 shares
of preferred stock. TPG Partners, L.P., a Delaware partnership
("TPG"), and certain of its affiliates or partners hold
109,248.36 shares of Common Stock and 17,500 shares of the
Company's preferred stock. In addition, TPG and certain of its
affiliates or partners hold warrants to purchase an additional
1,428.57 shares of Common Stock.
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<PAGE>
Common Stock
Holders of Common Stock are entitled to one vote for each
share held on all matters submitted to a vote of stockholders and
do not have cumulative voting rights. Accordingly, TPG and
certain of its affiliates or partners may elect all of the
directors standing for election. Holders of Common Stock are
entitled to receive ratably such dividends, if any, as may be
declared by the board of directors of the Company out of funds
legally available therefor, subject to any preferential dividend
rights of outstanding preferred stock. Upon the liquidation,
dissolution or winding up of the Company, the holders of Common
Stock are entitled to receive ratably the net assets of the
Company available after the payment of all debts and other
liabilities, subject to the prior rights of any outstanding
preferred stock. Holders of the Common Stock have no preemptive,
subscription, redemption or conversion rights. The outstanding
shares of Common Stock are, and the shares offered by the Company
hereby will be, when issued and paid for, fully paid and
nonassessable. The rights, preferences and privileges of holders
of Common Stock are subject to, and may be adversely affected by,
the rights of the holders of shares of any series of preferred
stock that the Company may designate and issue in the future.
The Company and the holders of its Common Stock as of the
date hereof have entered into a stockholders' agreement dated as
of April 18, 1997. Among other things, the Stockholders'
Agreement (i) imposes certain restrictions on the transfer of
shares of Common Stock and (ii) gives such holders registration
rights under certain circumstances. Purchasers of shares of
Common Stock offered hereby will also be required to enter into a
stockholders' agreement with the Company and TPG that (i) imposes
substantial restrictions on the transfer of shares of Common
Stock, (ii) gives the Company certain rights to purchase the
Common Stock upon the termination of the employment with the
Company and its affiliates of such purchaser and (iii) gives such
purchaser registration rights under certain circumstances.
Preferred Stock
As of the date hereof, the Company has authorized three
series of preferred stock (Series A and Series B and Series C)
(together, the "Preferred Stock"). As of the date hereof, no
shares of Series A or Series B preferred stock are outstanding.
The Preferred Stock accumulates dividends at the rate of 14% per
annum, which dividends will be payable in cash or additional
shares of Preferred Stock, at the option of the Company, subject
to availability of funds and the terms of its loan agreements, or
through a corresponding increase in the liquidation value of such
stock. The Preferred Stock has an initial liquidation preference
of $1,000 per share.
The Series A and Series B preferred stock may be redeemed at
the option of the Company, in whole at any time or in part from
time to time, at a redemption price equal to the liquidation
preference thereof plus accumulated and unpaid dividends to the
redemption date. The Series C preferred stock may be redeemed at the
option of the Company, in whole at any time or in part from time
to time, at redemption prices ranging from 103% of the liquidation
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<PAGE>
preference thereof, if redeemed prior to October 1998, to 100% of
the liquidation preference thereof, if redeemed after October
2000, in each case plus accumulated and unpaid dividends to the
redemption date. The Company is required to redeem all
outstanding shares of Preferred Stock on or before April 17, 2008
at redemption prices determined in accordance with the foregoing.
In certain other circumstances, including the occurrence of a
change of control of the Company, the Company will be required to
redeem shares of Series A and Series B preferred stock at 101% of
the liquidation preference thereof plus accumulated and unpaid
dividends to the redemption date and the holders of Series C
preferred stock will have the right (but not the obligation) to
require the Company to repurchase shares of such stock at 101% of
the liquidation preference thereof plus accumulated and unpaid
dividends to the repurchase date.
Holders of Preferred Stock will not have any voting rights
with respect thereto, except for such rights as are provided
under applicable law, the right to elect, as a class, two
directors of the Company in the event that six consecutive
quarterly dividends are in arrears and class voting rights with
respect to transactions adversely affecting the rights,
preferences or powers of the Preferred Stock.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company's Charter provides that the Company will
indemnify each of its directors and officers to the full extent
permitted by the laws of the State of Maryland and may indemnify
certain other persons as authorized by the Maryland General
Corporation Law (the "MGCL").
Section 2-418 of the MGCL provides as follows:
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND
AGENTS. -- (a) In this section the following words have
the meaning indicated.
(1) "Director" means any person who is or was a
director of a corporation and any person who, while a
director of a corporation, is or was serving at the
request of the corporation as a director, officer,
partner, trustee, employee, or agent of another
foreign or domestic corporation, partnership, joint
venture, trust, other enterprise, or employee benefit
plan.
(2) "Corporation" includes any domestic or
foreign predecessor entity of a corporation in a
merger, consolidation, or other transaction in which
the predecessor's existence ceased upon consummation
of the transaction.
(3) "Expenses" include attorney's fees.
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<PAGE>
(4) "Official capacity" means the following:
(i) When used with respect to a director,
the office of director in the corporation; and
(ii) When used with respect to a person
other than a director as contemplated in
subsection (j), the elective or appointive office
in the corporation held by the officer, or the
employment or agency relationship undertaken by
the employee or agent in behalf of the
corporation.
(iii) "Official capacity" does not include
service for any other foreign or domestic
corporation or any partnership, joint venture,
trust, other enterprise, or employee benefit
plan.
(5) "Party" includes a person who was, is, or is
threatened to be made a named defendant or respondent
in a proceeding.
(6) "Proceeding" means any threatened, pending or
completed action, suit or proceeding, whether civil,
criminal, administrative, or investigative.
(b) (1) A corporation may indemnify any director made
a party to any proceeding by reason of service in that
capacity unless it is established that:
(i) The act or omission of the director was
material to the matter giving rise to the proceeding;
and
1. Was committed in bad faith; or
2. Was the result of active and deliberate
dishonesty; or
(ii) The director actually received an improper
personal benefit in money, property, or services; or
(iii) In the case of any criminal proceeding,
the director had reasonable cause to believe that
the act or omission was unlawful.
(2) (i) Indemnification may be against judgments,
penalties, fines, settlements, and reasonable
expenses actually incurred by the director in
connection with the proceeding.
(ii) However, if the proceeding was one by
or in the right of the corporation,
indemnification may not be made in respect of any
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<PAGE>
proceeding in which the director shall have been
adjudged to be liable to the corporation.
(3) (i) The termination of any proceeding by
judgment, order, or settlement does not create a
presumption that the director did not meet the
requisite standard of conduct set forth in this
subsection.
(ii) The termination of any proceeding by
conviction, or a plea of nolo contendere or its
equivalent, or an entry of an order of probation
prior to judgment, creates a rebuttable
presumption that the director did not meet that
standard of conduct.
(c) A director may not be indemnified under subsection
(B) of this section in respect of any proceeding charging
improper personal benefit to the director, whether or not
involving action in the director's official capacity, in
which the director was adjudged to be liable on the basis
that personal benefit was improperly received.
(d) Unless limited by the charter:
(1) A director who has been successful, on the
merits or otherwise, in the defense of any proceeding
referred to in subsection (B) of this section shall be
indemnified against reasonable expenses incurred by
the director in connection with the proceeding.
(2) A court of appropriate jurisdiction upon
application of a director and such notice as the court
shall require, may order indemnification in the
following circumstances:
(i) If it determines a director is entitled
to reimbursement under paragraph (1) of this
subsection, the court shall order
indemnification, in which case the director shall
be entitled to recover the expenses of securing
such reimbursement; or
(ii) If it determines that the director is
fairly and reasonably entitled to indemnification
in view of all the relevant circumstances,
whether or not the director has met the standards
of conduct set forth in subsection (b) of this
section or has been adjudged liable under the
circumstances described in subsection (c) of this
section, the court may order such indemnification
as the court shall deem proper. However,
indemnification with respect to any proceeding by
or in the right of the corporation or in which
liability shall have been adjudged in the
circumstances described in subsection (c) shall
be limited to expenses.
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<PAGE>
(3) A court of appropriate jurisdiction may be
the same court in which the proceeding involving the
director's liability took place.
(e) (1) Indemnification under subsection (b) of this
section may not be made by the corporation unless
authorized for a specific proceeding after a
determination has been made that indemnification
of the director is permissible in
the circumstances because the director has met the
standard of conduct set forth in subsection (b) of this
section.
(2) Such determination shall be made:
(i) By the board of directors by a majority
vote of a quorum consisting of directors not, at
the time, parties to the proceeding, or, if such
a quorum cannot be obtained, then by a majority
vote of a committee of the board consisting
solely of two or more directors not, at the time,
parties to such proceeding and who were duly
designated to act in the matter by a majority
vote of the full board in which the designated
directors who are parties may participate:
(ii) By special legal counsel selected by
the board of directors or a committee of the
board by vote as set forth in subparagraph (i) of
this paragraph, or, if the requisite quorum of
the full board cannot be obtained and therefor
the committee cannot be established, by a
majority vote of the full board in which
directors who are parties may participate; or
(iii) By the stockholders.
(3) Authorization of indemnification and
determination as to reasonableness of expenses shall
be made in the same manner as the determination that
indemnification is permissible. However, if the
determination that indemnification is permissible is
made by special legal counsel, authorization or
indemnification and determination as to reasonableness
of expenses shall be made in the manner specified in
subparagraph (ii) of paragraph (2) of this subsection
for selection of such counsel.
(4) Shares held by directors who are parties to
the proceeding may not be voted on the subject matter
under this subsection.
(f) (1) Reasonable expenses incurred by a director who
is a party to a proceeding may be paid or reimbursed
by the corporation in advance of the final disposition
of the proceeding upon receipt by the corporation of:
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<PAGE>
(i) A written affirmation by the director of
the director's good faith belief that the
standard of conduct necessary for indemnification
by the corporation as authorized in this section
has been met; and
(ii) A written undertaking by or on behalf
of the director to repay the amount if it shall
ultimately be determined that the standard of
conduct has not been met.
(2) The undertaking required by subparagraph (ii)
of paragraph (1) of this subsection shall be an
unlimited general obligation of the director but need
not be secured and may be accepted without reference
to financial ability to make the repayment.
(3) Payments under this subsection shall be made
as provided by the charter, bylaws, or contract or as
specified in subsection (e) of this section.
(g) The indemnification and advancement of expenses
provided or authorized by this section may not be deemed
exclusive of any other rights, by indemnification or
otherwise, to which a director may be entitled under the
charter, the bylaws, a resolution of stockholders or
directors, an agreement or otherwise, both as to action in
an official capacity and as to action in another capacity
while holding such office.
(h) This section does not limit the corporation's
power to pay or reimburse expenses incurred by a director
in connection with an appearance as a witness in a
proceeding at a time when the director has not been made a
named defendant or respondent in the proceeding.
(i) For purposes of this section:
(1) The corporation shall be deemed to have
requested a director to serve an employee benefit plan
where the performance of the director's duties to the
corporation also imposes duties on, or otherwise
involves services by, the director to the plan or
participants or beneficiaries of the plan:
(2) Excise taxes assessed on a director with
respect to an employee benefit plan pursuant to
applicable law shall be deemed fines; and
(3) Action taken or omitted by the director with
respect to an employee benefit plan in the performance
of the director's duties for a purpose reasonably
believed by the director to be in the interest of the
participants and beneficiaries of the plan shall be
deemed to be for a purpose which is not opposed to the
best interests of the corporation.
II-7
<PAGE>
(j) Unless limited by the charter:
(1) An officer of the corporation shall be indem-
nified as and to the extent provided in subsection (d) of
this section for a director and shall be entitled, to
the same extent as a director, to seek indemnification
pursuant to the provisions of subsection (d);
(2) A corporation may indemnify and advance
expenses to an officer, employee, or agent of the
corporation to the same extent that it may indemnify
directors under this section; and
(3) A corporation, in addition, may indemnify and
advance expenses to an officer, employee, or agent who
is not a director to such further extent, consistent
with law, as may be provided by its charter, bylaws,
general or specific action of its board of directors
or contract.
(k) (1) A corporation may purchase and maintain
insurance on behalf of any person who is or was a
director, officer, employee, or agent of the
corporation, or who, while a director, officer,
employee, or agent of the corporation, is or was
serving at the request of the corporation as a
director, officer, partner, trustee, employee, or
agent of another foreign or domestic corporation,
partnership, joint venture, trust, other enterprise,
or employee benefit plan against any liability
asserted against and incurred by such person in any
such capacity or arising out of such person's
position, whether or not the corporation would have
the power to indemnify against liability under the
provisions of this section.
(2) A corporation may provide similar protection,
including a trust fund, letter of credit, or surety
bond, not inconsistent with this section.
(3) The insurance or similar protection may be
provided by a subsidiary or an affiliate of the
corporation.
(1) Any indemnification of, or advance of expenses to,
a director in accordance with this section, if arising out
of a proceeding by or in the right of the corporation,
shall be reported in writing to the stockholders with the
notice of the next stockholders' meeting or prior to the
meeting.
The Company maintains directors' and officers' liability
insurance.
II-8
<PAGE>
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed with or incorporated by
reference into this Registration Statement (numbering corresponds
to Exhibit Table in Item 601 of Regulation S-K):
4.1 Del Monte Foods Company Employee Stock Purchase Plan
4.2 Del Monte Foods Company 1997 Stock Incentive Plan
4.3 Charter of Del Monte Foods Company (filed as Exhibit 3.4
to the Company's Registration Statement on Form S-4 (No.
333-29079) and incorporated herein by reference)
4.4 Articles Supplementary to Charter of Del Monte Foods
Company (filed as Exhibit 3 to the Company's Quarterly Report on
Form 10-Q for the Quarter ended September 30, 1997 and
incorporated herein by reference)
4.5 By-Laws of Del Monte Foods Company
5.1 Opinion of Cleary, Gottlieb, Steen & Hamilton regarding
the validity of securities being registered
23.1 Consent of Independent Auditors
23.2 Consent of Independent Auditors
23.3 Consent of Cleary, Gottlieb, Steen & Hamilton (included
in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement: (i) to include any prospectus required by
Section 10(a)(3) of the Securities Act; (ii) to reflect in the
prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; (iii) to include any material information
II-9
<PAGE>
with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change
to such information in the Registration Statement; provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the Registrant's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act (and, where applicable, each
filing of the employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Registrant has duly caused this Registration Statement to
be signed on its behalf, thereunto duly authorized, in the City of
San Francisco, State of California, on November 20, 1997.
DEL MONTE FOODS COMPANY
By:/s/ Richard G. Wolford
--------------------------------
Richard G. Wolford,
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below on this
Registration Statement hereby constitutes and appoints Richard G.
Wolford, Wesley J. Smith and William R. Sawyers, and each of
them, with full power to act without the other, his true and
lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (unless revoked in writing)
to sign any and all amendments (including post-effective
amendments thereto) to this Registration Statement to which this
power of attorney is attached, and to file the same, with all
exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as
full to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the
following persons in the capacities indicated, on November 20,
1997.
Signature Title
- --------- -----
/s/ Richard G. Wolford Chief Executive Officer
- -------------------------- (Principal Executive Officer);
Richard G. Wolford Director
/s/ David L. Meyers Executive Vice President,
- -------------------------- Administration and Chief
David L. Meyers Financial Officer (Principal
Financial Officer)
/s/ Richard L. French Vice President and Chief
- -------------------------- Accounting Officer (Principal
Richard L. French Accounting Officer)
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<PAGE>
/s/ Richard W. Boyce Director; Chairman of the Board
- --------------------------
Richard W. Boyce
/s/ Timothy G. Bruer Director
- --------------------------
Timothy G. Bruer
/s/ Al Carey Director
- --------------------------
Al Carey
/s/ Patrick Foley Director
- --------------------------
Patrick Foley
/s/ Brian E. Haycox Director
- --------------------------
Brian E. Haycox
/s/ Denise O'Leary Director
- --------------------------
Denise O'Leary
/s/ William S. Price, III Director
- --------------------------
William S. Price, III
/s/ Jeffrey A. Shaw Director
- --------------------------
Jeffrey A. Shaw
/s/ Wesley J. Smith Director
- --------------------------
Wesley J. Smith
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<PAGE>
EXHIBIT INDEX
-------------
Sequentially
Exhibit Numbered
No. Description Method of Filing Page Location
- ------- ----------- ---------------- -------------
4.1 Del Monte Foods Company Filed herewith 15
Employee Stock Purchase
Plan
4.2 Del Monte Foods Company Filed herewith 27
1997 Stock Incentive
Plan
4.3 Charter of Del Monte Filed as Exhibit 3.4 --
Foods Company to the Company's
Registration
Statement on Form S-4
(No. 333-29079) and
incorporated
herein by reference
4.4 Articles Supplementary Filed as Exhibit 3 --
to Charter of Del Monte to the Company's
Foods Company Quarterly Report
on Form 10-Q for the
Quarter ended
September 30, 1997
and incorporated
herein by reference
4.5 By-Laws of Del Monte Filed herewith 46
Foods Company
5.1 Opinion of Cleary, Filed herewith 60
Gottlieb, Steen &
Hamilton regarding
regarding the validity
of securities being
registered
23.1 Consent of Independent Filed herewith 62
Auditors
23.2 Consent of Independent Filed herewith 63
Auditors
23.3 Consent of Cleary, Filed herewith 60
Gottlieb, Steen &
Hamilton (included
in Exhibit 5.1)
24.1 Power of Attorney Filed herewith 12
(included on signature
page)
DEL MONTE FOODS COMPANY
EMPLOYEE STOCK PURCHASE PLAN
EFFECTIVE AS OF AUGUST 4, 1997
1. Purpose of the Plan
The purpose of this Del Monte Foods Company Employee
Stock Purchase Plan is to allow stock ownership by eligible
employees of Del Monte Foods Company ("DMFC") and each of its
participating subsidiaries, thereby increasing eligible
employees' personal interest in DMFC's continued success and
progress.
2. Definitions
For purposes of the Plan, the following terms shall
have the meanings indicated herein.
(a) "Committee" shall mean the Compensation Committee
of the Board of Directors or such other committee as the Board of
Directors shall appoint from time to time.
(b) "Common Stock" shall mean DMFC's common stock, par
value $.01 per share.
(c) "Company" shall mean DMFC and its subsidiaries.
(d) "Participant" shall mean an eligible employee who
purchases shares of Common Stock pursuant to this Plan.
(e) "Plan" shall mean this Del Monte Foods Company
Employee Stock Purchase Plan.
(f) 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 Securities Exchange Act of
1934, as amended, 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).
(g) "Securities Act" shall mean the Securities Act
of 1933, as amended.
(h) "Stockholders' Agreement" shall mean an agreement
in substantially the form set forth as Exhibit A hereto.
<PAGE>
3. Common Stock Reserved for the Plan
There shall be reserved for issuance under the Plan a
total of 5,000 shares of Common Stock, subject to adjustment as
provided in Section 11 herein. If any person becomes entitled to
purchase shares of Common Stock pursuant to this Plan and for any
reason does not purchase such shares, such shares may be
reoffered to such person or to any other eligible employee.
Shares of Common Stock issued under the Plan may be either
authorized and unissued shares, treasury shares or both.
The adoption of this Plan by the Board of Directors of
DMFC shall not be construed as creating any limitations on the
power of the Board of Directors of DMFC to adopt such other
incentive arrangements as it may deem desirable.
4. Administration of the Plan
The Plan shall be administered by the Committee. The
Committee shall have the authority, consistent with the Plan, to
interpret the Plan, to adopt, amend and rescind rules and
regulations for the administration of the Plan and to make all
determinations in connection therewith which may be necessary or
advisable, and all such actions shall be binding for all purposes
under the Plan.
No member of the Committee shall be liable for any
action, omission or determination relating to the Plan, and DMFC
shall indemnify and hold harmless each member of the Committee,
and each other director or employee of the Company to whom any
duty or power relating to the administration or interpretation of
the Plan has been delegated, against any cost, expense (including
reasonable attorneys' fees) or liability arising out of any
action, omission or determination relating to the Plan, unless,
in either case, such action, omission or determination was taken
or made by such member, director or employee in bad faith and
without reasonable belief that it was in the best interests of
the Company.
5. Eligibility
Each key employee of the Company listed on Schedule I
attached hereto shall be eligible to participate in the Plan. The
Committee may, at any time, or from time to time, amend Schedule
I to add additional key employees.
6. Participation
The Committee shall designate those eligible employees
who shall be given an opportunity to purchase shares of Common
Stock, the number of shares of Common Stock which each such
eligible employee is entitled to purchase, the purchase price per
share of Common Stock, the timing of such purchase and the other
terms and conditions on which such purchase may be made.
<PAGE>
7. Purchases
Not later than seven (7) days (unless such time is
extended by the Committee) following the delivery of notice to an
eligible employee of his entitlement to purchase shares of Common
Stock pursuant to this Plan or, if provided in such notification,
satisfaction of each of the conditions to such purchase, such
eligible employee may purchase such shares by paying the purchase
price for such shares in cash or by certified check, bank
cashier's check or wire transfer in immediately available funds.
Certificates for shares of Common Stock purchased pursuant to
this Plan shall be issued in the name of the Participant and
delivered to the Participant as soon as practical following
receipt of payment therefor.
8. Securities Matters
(a) Prior to the existence of a Public Market for the
Common Stock, DMFC shall be under no obligation to deliver
certificates representing shares of Common Stock issued pursuant
to this Plan unless it receives a Stockholders' Agreement duly
executed by the Participant respecting such shares. Any
certificate representing shares of Common Stock issued pursuant
to this Plan shall bear the legend specified in Section 2 of such
Stockholders' Agreement, provided that the first paragraph of
such legend shall be omitted from certificates issued after the
commencement of a Public Market for the Common Stock and the
second paragraph of such legend shall be omitted from
certificates evidencing shares that have been registered under
the Securities Act.
(b) DMFC shall be under no obligation to effect the
registration pursuant to the Securities Act of any shares of
Common Stock to be issued hereunder or to effect similar
compliance under any state laws. Notwithstanding anything herein
to the contrary, DMFC shall not be obligated to cause to be
issued or delivered any certificates evidencing shares of Common
Stock pursuant to the Plan unless and until DMFC is advised by
its counsel that the issuance and delivery of such certificates
is in compliance with all applicable laws, regulations of
governmental authority and the requirements of any securities
exchange on which shares of Common Stock are traded. The
Committee may require, as a condition of the issuance and
delivery of certificates evidencing shares of Common Stock
pursuant to the terms hereof, that the recipient of such shares
make such covenants, agreements and representations, and that
such certificates bear such legends, in each case in addition to
those described in Section 8(a) above, as the Committee deems
necessary or desirable.
9. Rights as a Stockholder
No Participant shall have any rights with respect to
any shares of Common Stock arising from this Plan until the date
on which his name is entered on the books and records of DMFC as
the record holder of such shares.
10. Rights Not Transferable
Rights to purchase shares of Common Stock pursuant to
the Plan are not transferable, including by reason of the death
of the Participant.
<PAGE>
11. Adjustment for Changes in Common Stock
In the event of any change in the number of shares of
Common Stock outstanding by reason of any stock dividend or
split, recapitalization, merger, consolidation, combination or
exchange of shares or similar corporate change, the maximum
aggregate number of shares of Common Stock which may be purchased
under the Plan shall be appropriately adjusted by the Committee.
In the event of any change in the number of shares of Common
Stock outstanding by reason of any other event or transaction,
the Committee may, but need not, make such adjustments in the
number and class of shares of Common Stock which may be purchased
under the Plan as the Committee may deem appropriate.
12. Withholding Taxes
Whenever shares of Common Stock are to be issued
hereunder the Company shall have the right to require the
Participant to remit to the Company in cash an amount sufficient
to satisfy federal, state and local withholding tax requirements,
if any, attributable to such issuance prior to the delivery of
any certificate or certificates for such shares.
13. No Special Employment Rights
(a) Nothing contained in the Plan shall confer upon
any Participant or eligible employee any right with respect to
the continuation of his employment by the Company or interfere in
any way with the right of the Company at any time to terminate
such employment or to increase or decrease the compensation of
the Participant or eligible employee.
(b) No person shall have any claim or right to
participate in this Plan. The Committee's offering to sell shares
of Common Stock to a Participant at any time shall neither
require the Committee to make any additional offer to such
Participant or to make an offer to any other Participant or other
person at any time nor preclude the Committee from making
subsequent offers to such Participant or any other Participant or
other person.
14. Amendment; Termination
The Board of Directors of DMFC may at any time suspend
or terminate the Plan, and may at any time, or from time to time,
revise or amend the Plan in any respect whatsoever.
15. Applicable Law
The Plan will be administered in accordance with the
laws of the State of California, without reference to its
principles of conflicts of law.
<PAGE>
Schedule I
Eligible Participants
EXHIBIT A
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT (this "Agreement"), dated as
of ________, 199__, between Del Monte Foods Company (the
"Company") and ________________________ (the "Stockholder").
WHEREAS, the Stockholder is an employee of the Company
and in such capacity was granted the opportunity to purchase
shares of common stock of the Company, par value $.01 per share
("Common Stock"), pursuant to the Company's Employee Stock
Purchase Plan (the "Purchase Plan");
WHEREAS, as a condition to the issuance of shares of
Common Stock pursuant to the Purchase Plan, the Stockholder is
required under the Purchase Plan to execute this Agreement;
WHEREAS, the Stockholder desires to purchase _________
shares of Common Stock pursuant to the Purchase Plan; and
WHEREAS, the Stockholder and the Company desire to
enter this Agreement and to have this Agreement apply to the
shares to be purchased pursuant to the Purchase Plan and to any
shares of Common Stock acquired after the date hereof by the
Stockholder from whatever source, subject to any future agreement
between the Company and the Stockholder to the contrary (in the
aggregate, the "Shares").
NOW THEREFORE, in consideration of the premises
hereinafter set forth, and other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereto
agree as follows.
1. Investment. The Stockholder represents that the Shares
are being acquired for investment and not with a view toward the
distribution thereof.
2. Issuance of Shares. The Stockholder acknowledges
and agrees that the certificate for the Shares shall bear the
following legends (except that the second paragraph of this
legend shall not be required after the Shares have been
registered and except that the first paragraph of this legend
shall not be required after the termination of this Agreement):
The shares represented by this certificate are subject to
the terms and conditions of a Stockholders' Agreement dated
as of ______________, 19__ and may not be sold,
transferred, hypothecated, assigned or encumbered, except
as may be permitted by the aforesaid Agreement. A copy of
the Stockholders' Agreement may be obtained from the
Secretary of the Company.
<PAGE>
The shares represented by this certificate have not been
registered under the Securities Act of 1933. The shares
have been acquired for investment and may not be sold,
transferred, pledged or hypothecated in the absence of an
effective registration statement for the shares under the
Securities Act of 1933 or an opinion of counsel for the
Company that registration is not required under said Act.
Upon the termination of this Agreement, or upon
registration of the Shares under the Securities Act of 1933 (the
"Securities Act"), the Stockholder shall have the right to
exchange any Shares containing the above legend (i) in the case
of the registration of the Shares, for Shares legended only with
the first paragraph described above and (ii) in the case of the
termination of this Agreement, for Shares legended only with the
second paragraph described above.
3. Transfer of Shares; Put and Call Options.
(a) The Stockholder agrees that he will not cause or
permit the Shares or his interest in the Shares to be sold,
transferred, hypothecated, assigned or encumbered except as
expressly permitted by this Section 3; provided, however, that
the Shares or any such interest may be transferred (i) on the
Stockholder's death by bequest or inheritance to the
Stockholder's executors, administrators, testamentary trustees,
legatees or beneficiaries, (ii) to a trust or custodianship the
beneficiaries of which may include only the Stockholder, the
Stockholder's spouse, or the Stockholder's lineal descendants (by
blood or adoption), (iii) in accordance with Section 4 of this
Agreement, and (iv) to the Company pursuant to Section 6(e)(2) or
Section 11(b) of the Del Monte Foods Company 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 employment of the Stockholder with
the Company for any other reason at any time, to purchase from
the Stockholder, and upon the exercise of such right the
Stockholder shall sell to the Company (or its designated
assignee), all or any portion of the Shares held by the
Stockholder as of the date as of which such right is exercised at
a per Share price equal to the value of a share of Common Stock
as determined by the Board of Directors of the Company (the
"Board of Directors") as of the date as of which such right is
exercised. The Company (or its designated assignee) shall
exercise such right by delivering to the Stockholder a written
notice specifying its intent to purchase Shares held by the
Stockholder, the date as of which such right is to be exercised
and the number of Shares to be purchased. Such purchase and sale
shall occur on such date as the Company (or its designated
assignee) and the Stockholder shall agree, which date shall not
be later than the earlier of (i) ninety (90) days after the
fiscal quarter-end immediately following the date as of which the
Company's right is exercised and (ii) thirty (30) days after the
date on which such value is determined by the Board of Directors.
<PAGE>
(c) The Stockholder shall have the right, during the
(x) one-year period following the termination of the Stockholder's
employment as a result of death or Permanent Disability or (y)
ninety-day period immediately following the termination of the
employment of the Stockholder with the Company for any other
reason at any time, to sell to the Company (or its designated
assignee), and upon the exercise of such right the Company (or
its designated assignee) shall purchase from the Stockholder, all
or any portion of the Shares held by the Stockholder as of the
date as of which such right is exercised at a per Share price
equal to the value of a share of Common Stock as determined by
the Board of Directors as of the date as of which such right is
exercised. The Stockholder shall exercise such right by
delivering to the Company a written notice specifying its intent
to sell Shares held by the Stockholder, the date as of which such
right is to be exercised and the number of Shares to be sold.
Such purchase and sale shall occur on such date as the Company
(or its designated assignee) and the Stockholder shall agree,
which date shall not be later than the earlier of (i) ninety (90)
days after the fiscal quarter-end immediately following the date
as of which the Stockholder's right is exercised and (ii) thirty
(30) days after the date on which such value is determined by the
Board of Directors. For purposes of this Section 3(c), "Permanent
Disability" shall mean physical or mental disability as a result
of which the Stockholder is unable to perform his duties with the
Company on substantially a full-time basis for any period of six
(6) consecutive months. Any dispute as to whether or not the
Stockholder is so disabled shall be resolved by a physician
reasonably acceptable to the Stockholder and the Company whose
determination shall be final and binding upon both the
Stockholder and the Company. Notwithstanding the foregoing
provisions, "Permanent Disability," when used in connection with
the termination of the employment with the Company of a
Stockholder who at the time of such termination is a party to a
written employment or retention agreement with the Company, shall
have the meaning assigned to such term in such agreement.
4. Certain Rights.
(a) Drag Along Rights. If TPG Partners, L.P. ("TPG")
desires to sell its shares of Common Stock to a good faith
independent purchaser (a "Purchaser") (other than any other
investment partnership, limited liability company or other entity
established for investment purposes and controlled by the
principals of TPG) and said Purchaser desires to acquire all of
the issued and outstanding shares of Common Stock upon such terms
and conditions as agreed to with TPG, the Stockholder agrees to
sell all of his Shares to said Purchaser (or to vote in favor of
any merger or other transaction which would effect such a sale)
at the same price per share of Common Stock and pursuant to the
same terms and conditions with respect to payment for the shares
of Common Stock as agreed to by TPG. In such case, TPG shall give
written notice of such sale to the Stockholder at least 30 days
prior to the consummation of such sale, setting forth (i) the
consideration to be received by the holders of shares of Common
Stock, (ii) the identity of the Purchaser, (iii) any other
material items and conditions of the proposed transfer and (iv)
the date of the proposed transfer.
(b) Tag Along Rights. If TPG or its affiliates proposes to
transfer any of its shares of Common Stock to a Purchaser other than
an affiliate or employee of TPG or its affiliates, then TPG or such af-
filiate (hereinafter referred to as a "Selling Stockholder") shall give
<PAGE>
written notice of such proposed transfer to the Stockholder at
least 30 days prior to the consummation of such proposed
transfer, setting forth (i) the number of shares of Common Stock
offered, (ii) the consideration to be received by such Selling
Stockholder, (iii) the identity of the Purchaser, (iv) any other
material items and conditions of the proposed transfer and (v)
the date of the proposed transfer.
The Stockholder may elect to sell a Pro Rata Portion
(as hereinafter defined) of his Shares, at the same price per
share of Common Stock and pursuant to the same terms and
conditions with respect to payment for the shares of Common Stock
as agreed to by the Selling Stockholder, by sending written
notice to the Selling Stockholder within 15 days of the date of
the Selling Stockholder's notice, indicating a desire to sell
such Pro Rata Portion of his Shares in the same transaction.
Following such 15 day period, the Selling Stockholder shall be
permitted to sell to the Purchaser additional Shares representing
Shares not sold by other stockholders of the Company.
For purposes of Sections 4(b) and 4(c) hereof, "Pro
Rata Portion" shall mean a number equal to the product of (x) the
total number of Shares owned by the Stockholder and (y) a
fraction, the numerator of which shall be the total number of
shares of Common Stock offered (for sale or registration, as
applicable) by the Selling Stockholder, and the denominator of
which shall be the total number of shares of Common Stock owned
by the Selling Stockholder (including the shares of Common Stock
proposed to be sold or registered by the Selling Stockholder);
provided, however, that any fraction of a share resulting from
such calculation shall be disregarded for purposes of determining
the Pro Rata Portion.
(c) Piggyback Registration Rights.
(i) Notice to Stockholder. If the Company determines
that it will file a registration statement under the Securities
Act, other than a registration statement on Form S-4 or Form S-8
or any successor form, for an offering which includes shares of
Common Stock held by TPG or its affiliates (hereinafter referred
to as a "Selling Stockholder"), then the Company shall give
prompt written notice to the Stockholder that such filing is
expected to be made (but in no event less than 30 days nor more
than 60 days in advance of filing such registration statement),
the jurisdiction or jurisdictions in which such offering is
expected to be made, and the underwriter or underwriters (if any)
that the Company (or the person requesting such registration)
intends to designate for such offering. If the Company, within 15
days after giving such notice, receives a written request for
registration of any Shares from the Stockholder, then the Company
shall include in the same registration statement the number of
Shares to be sold by the Stockholder as shall have been specified
in his request, except that the Stockholder shall not be
permitted to register more than a Pro Rata Portion of his Shares.
The Company shall bear all costs of preparing and filing the
registration statement, and shall indemnify and hold harmless, to
the extent customary and reasonable, pursuant to indemnification
and contribution provisions to be entered into by the Company at
the time of filing of the registration statement, the seller of
any shares of Common Stock covered by such registration
statement.
<PAGE>
Notwithstanding anything herein to the contrary, the
Company, on prior notice to the participating Stockholder, may
abandon its intention to file a registration statement under this
Section 4(c) at any time prior to such filing.
(ii) Allocation. If the managing underwriter shall
inform the Company in writing that the number of shares of Common
Stock requested to be included in such registration exceeds the
number which can be sold in (or during the time of) such offering
within a price range acceptable to TPG, then the Company shall
include in such registration such number of shares of Common
Stock which the Company is so advised can be sold in (or during
the time of) such offering. All holders of shares of Common Stock
proposing to sell shares of Common Stock shall share pro rata in
the number of shares of Common Stock to be excluded from such
offering, such sharing to be based on the respective numbers of
shares of Common Stock as to which registration has been
requested by such holders.
(iii) Permitted Transfer. Notwithstanding anything to
the contrary contained herein, sales of Shares pursuant to a
registration statement filed by the Company may be made without
compliance with any other provision of this Agreement.
5. Termination. This Agreement shall terminate
immediately following the commencement of a Public Market for the
Common Stock, except that (i) the requirements contained in
Section 2 hereof shall survive the termination of this Agreement
and (ii) the provisions contained in Section 3 hereof shall
continue with respect to each Share during such period of time,
if any, as the Stockholder is precluded from selling such Share
pursuant to Rule 144 of the Securities Act. For this purpose, a
"Public Market" for the Common Stock shall be deemed to exist if
the Common Stock is registered under Section 12(b) or 12(g) of
the Exchange Act, or if trading regularly occurs in such Common
Stock in, on or through the facilities of securities exchanges
and/or inter-dealer quotation systems in the United States
(within the meaning of Section 902(n) of the Securities Act) or
any designated offshore securities market (within the meaning of
Rule 902(a) of the Securities Act).
6. Distributions With Respect To Shares. As used
herein, the term "Shares" includes securities of any kind
whatsoever distributed with respect to the Common Stock acquired
by the Stockholder pursuant to the Purchase Plan or any such
securities resulting from a stock split or consolidation
involving such Common Stock.
7. Amendment; Assignment. This Agreement may be
amended, superseded, cancelled, renewed or extended, and the
terms hereof may be waived, only by a written instrument signed
by authorized representatives of the parties or, in the case of a
waiver, by an authorized representative of the party waiving
compliance. No such written instrument shall be effective unless
it expressly recites that it is intended to amend, supersede,
cancel, renew or extend this Agreement or to waive compliance
with one or more of the terms hereof, as the case may be. Except
for the Stockholder's right to assign his or her rights under
Section 3(a) or the Company's right to assign its rights under
Section 3(b) or its obligations under Section 3(c), no party to
this Agreement may assign any of its rights or obligations under
this Agreement without the prior written consent of the other
parties hereto.
<PAGE>
8. Notices. All notices and other communications here-
under shall be in writing, shall be deemed to have been given if
delivered in person or by certified mail, return receipt
requested, and shall be deemed to have been given when personally
delivered or three (3) days after mailing to the following
address:
If to the Stockholder:
If to the Company:
Del Monte Foods Company
One Market
San Francisco, CA 94105
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.
<PAGE>
14. Miscellaneous. The headings contained in this
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
* * * * * *
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the day and year first
above written.
______________________________
[Stockholder]
DEL MONTE FOODS COMPANY
______________________________
By:
Title:
TPG PARTNERS, L.P.
______________________________
By:
Title:
DEL MONTE FOODS COMPANY
1997 STOCK INCENTIVE PLAN
AS ADOPTED AUGUST 4, 1997
<PAGE>
1. Purpose of the Plan
This Del Monte Foods Company 1997 Stock Incentive Plan
is intended to promote the interests of the Company by providing
certain employees of the Company, who are
largely responsible for the management, growth and protection of
the business of the Company, with incentives and rewards to
encourage them to continue in the employ of the Company.
2. Definitions
As used in the Plan, the following definitions apply
to the terms indicated below:
(a) "Board of Directors" shall mean the Board of
Directors of Del Monte or such committee of the Board of
Directors as may be designated by the Board of Directors.
(b) "Cause," when used in connection with the
termination of a Participant's employment with the Company, shall
mean (i) dishonesty; (ii) deliberate and continual refusal to
perform employment duties on substantially a full-time basis;
(iii) failure to act in accordance with any specific lawful
instructions given to the Participant in connection with the
performance of his duties for the Company or any of its
subsidiaries or affiliates, unless the Participant has an
existing Permanent Disability, or (iv) deliberate misconduct
which is reasonably likely to be materially damaging to the
Company without a reasonable good faith belief by the Participant
that such conduct was in the best interests of the Company.
Notwithstanding the foregoing provisions of this Section 2(b),
"Cause," when used in connection with the termination of the
employment with the Company of a Participant who at the time of
such termination is a party to a written employment or retention
agreement with the Company, shall have the meaning assigned to
such term in such agreement.
(c) "Change of Control" shall mean the occurrence of one
or more of the following events:
(1) any sale, lease, exchange or other transfer (in
one transaction or a series of related transactions) of all or
substantially all of the assets of the Company to any individual,
partnership, corporation, limited liability company,
unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof (a "Person")
or group of related Persons for purposes of Section 13(d) of the
Exchange Act (a "Group"), together with any Affiliates (as
defined below) thereof other than to TPG Partners, L.P. ("TPG")
or its Affiliates;
(2) the approval by the holders of any and all shares,
interests, participations or other equivalents (however
designated and whether or not voting) of corporate stock,
including each class of common stock and preferred stock, of the
Company ("Capital Stock") of any plan or proposal for the
liquidation or dissolution of the Company;
(3) (i) any Person or Group (other than TPG or its
Affiliates) shall become the owner, directly or indirectly,
beneficially or of record, of shares representing more than 40%
of the aggregate ordinary voting power represented by the issued
and outstanding Capital Stock (the
2
<PAGE>
"Voting Stock") of the Company and (ii) TPG and its Affiliates
shall beneficially own, directly or indirectly, in the aggregate
a lesser percentage of the Voting Stock of the Company than such
other Person or Group; or
(4) the replacement of a majority of the Board of
Directors over a two-year period from the directors who
constituted the Board of Directors at the beginning of such
period, and such replacement shall not have been approved by a
vote of at least a majority of the Board of Directors then still
in office who either were members of such Board of Directors at
the beginning of such period or whose election as a member of
such Board of Directors was previously so approved or who were
nominated by, or designees of TPG or its Affiliates.
For purposes of this Section 2(c), "Affiliate" shall
mean, with respect to any specified Person, any other Person who
directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with,
such specified Person. The term "control" means the possession,
directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" or "controlled" have
meanings correlative of the foregoing.
(d) "Code" shall mean the Internal Revenue Code of
1986, as amended from time to time.
(e) "Committee" shall mean the Compensation Committee
of the Board of Directors or such other committee as the Board of
Directors shall appoint from time to time to administer the Plan.
(f) "Common Stock" shall mean common stock of Del
Monte, $.01 par value per share.
(g) "Company" shall mean Del Monte and its subsidiaries.
(h) "Del Monte" shall mean Del Monte Foods Company, a
Maryland corporation.
(i) "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended.
(j) "Incentive Stock Option" shall mean an Option that
is intended to qualify as an incentive stock option within the
meaning of Section 422 of the Code.
(k) "Option" shall mean an option to purchase shares
of Common Stock granted pursuant to Section 6 hereof.
3
<PAGE>
(l) "Participant" shall mean an employee of the Company
who is eligible to participate in the Plan and to whom an Option is
granted pursuant to the Plan, and upon his death, his successors,
heirs, executors and administrators, as the case may be.
(m) "Permanent Disability" shall mean physical or
mental disability as a result of which the Participant is unable
to perform his duties with the Company on substantially a
full-time basis for any period of six (6) consecutive months. Any
dispute as to whether or not the Participant is so disabled shall
be resolved by a physician reasonably acceptable to the
Participant and the Company whose determination shall be final
and binding upon both the Participant and the Company.
Notwithstanding the foregoing provisions of this Section 2(m),
"Permanent Disability," when used in connection with the
termination of the employment with the Company of a Participant
who at the time of such termination is a party to a written
employment or retention agreement with the Company, shall have
the meaning assigned to such term in such agreement.
(n) "Plan" shall mean this Del Monte Foods Company
1997 Stock Incentive Plan, as it may be amended from time to
time.
(o) 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).
(p) "Securities Act" shall mean the Securities Act
of 1933, as amended.
3. Stock Subject to the Plan
Subject to adjustment as provided in Section 7 hereof,
the Committee may grant Options to Participants with respect to
9,508 shares of Common Stock. In the event that any outstanding
Option expires, terminates or is cancelled for any reason, the
shares of Common Stock subject to the unexercised portion of such
Option shall again be available for grants under the Plan.
Shares of Common Stock issued under the Plan may be
either newly issued shares or treasury shares, as determined by
the Committee.
4. Administration of the Plan
The Plan shall be administered by the Committee. The
Committee shall from time to time designate the key employees of
the Company who shall be granted Options, the number of shares
subject to each Option and the terms and conditions on which each
Option shall be granted.
4
<PAGE>
The Committee shall have full authority to administer the
Plan, including authority to interpret and construe any provision
of the Plan and the terms of any Option issued under it and to
adopt such rules and regulations for administering the Plan as it
may deem necessary. Decisions of the Committee shall be final and
binding on all parties and all decisions, determinations,
selections and other actions permitted or required to be taken or
made by the Committee with respect to the Plan shall be subject
to the absolute discretion of the Committee. No member of the
Committee shall be liable to any Participant for any action,
omission, or determination relating to the Plan.
Whether an authorized leave of absence, or absence in
military or government service, shall constitute termination of
employment shall be determined by the Committee.
5. Eligibility
The persons who shall be eligible to receive Options
pursuant to the Plan shall be such employees of the Company who
are largely responsible for the management, growth and protection
of the business of the Company as the Committee shall select from
time to time.
6. Options
Each Option granted pursuant to the Plan shall be
evidenced by an agreement in the form attached hereto as Exhibit
A or B, as appropriate. Options shall comply with and be subject
to the following terms and conditions:
(a) Identification of Options
All Options shall be clearly identified in the
agreement evidencing their grant as non-qualified stock options
that are not intended to qualify as "incentive stock options"
within the meaning of Section 422 of the Code or as Incentive
Stock Options.
(b) Exercise Price
The exercise price per share of each Option shall be
such price as the Committee shall determine at the time at which
the Option is granted; provided, that the exercise price per
share of any Incentive Stock Option granted under the Plan shall
be not less than 100% of the fair market value of a share of
Common Stock on the date on which such Incentive Stock Option is
granted.
(c) Term and Exercise of Options
Each Option shall be exercisable on such date or
dates, during such period and for such number of shares of Common
Stock as shall be determined by the Committee on the day on which
such Option is granted and set forth in the Option agreement with
respect to such Option; provided, however, that no Option shall
be exercisable after the expiration of ten (10) years from
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the date such Option is granted; and provided, further, that each
Option shall be subject to earlier expiration, termination,
cancellation or exercisability as provided in this Plan.
(d) Effect of Termination of Employment
(1) In the event of the termination of the employment
of a Participant with the Company for Cause, each Option then
outstanding shall expire and be cancelled upon such termination.
(2) In the event that the employment of a Participant
with the Company shall be terminated other than by the Company
for Cause or on account of Permanent Disability or death of the
Participant (i) Options granted to such Participant, to the
extent that they were exercisable at the time of such
termination, shall remain exercisable until the expiration of
ninety (90) days after such termination, on which date they shall
expire, and (ii) Options granted to such Participant, to the
extent that they were not exercisable at the time of such
termination, shall expire at the close of business on the date of
such termination; provided, however, that no Option shall be
exercisable after the expiration of its term. In the event that
the employment of a Participant with the Company shall terminate
on account of Permanent Disability or death of the Participant,
(x) Options granted to such Participant, to the extent that they
were exercisable at the time of such termination, shall remain
exercisable until the expiration of one (1) year after such
termination, on which date they shall expire, and (y) Options
granted to such Participant, to the extent that they were not
exercisable at the time of such termination, shall expire at the
close of business on the date of such termination; provided,
however, that no Option shall be exercisable after the expiration
of its term.
(e) Certain Terms and Conditions
(1) Each Option shall be exercisable in whole or in
part with respect to not less than one share of Common Stock. The
partial exercise of an Option shall not cause the expiration,
termination or cancellation of the remaining portion thereof.
(2) An Option shall be exercised by delivering notice
to Del Monte's principal office in the form attached hereto as
Exhibit C, to the attention of its Chief Financial Officer with a
copy to its General Counsel, no less than three business days in
advance of the effective date of the proposed exercise. Such
notice shall specify the number of shares of Common Stock with
respect to which the Option is being exercised and the effective
date of the proposed exercise and shall be signed by the
Participant. The Participant may withdraw such notice at any time
prior to the close of business on the business day immediately
preceding the effective date of the proposed exercise. Payment
for shares of Common Stock purchased upon the exercise of an
Option shall be made on the effective date of such exercise in
cash, by certified check, bank cashier's check or wire transfer,
or by tender to Del Monte of shares of Common Stock already owned
and held by the Participant for at least six (6) months, which
shares shall be valued as determined by the Board of Directors on
the effective date of the proposed exercise. In the event that,
prior to the existence of a Public Market for the Common Stock, a
Participant elects to pay the exercise price upon the exercise of
an Option by the tender of previously-owned shares, the
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<PAGE>
delivery by Del Monte of certificates representing the shares of
Common Stock purchased upon such exercise shall be deferred
pending a determination of the exact number of the shares of
Common Stock required to be tendered by the Participant.
(3) Certificates for shares of Common Stock purchased
upon the exercise of an Option shall be issued in the name of the
Participant and delivered to the Participant as soon as
practicable following the effective date on which the Option is
exercised.
(4) During the lifetime of a Participant, each Option
granted to him shall be exercisable only by him. No Option shall
be assignable or transferable otherwise than by will or by the
laws of descent and distribution. Notwithstanding the preceding
provisions of this Section 6(e)(4), a Participant may assign his
rights with respect to any Option other than any Incentive Stock
Option granted to him to a trust or custodianship the
beneficiaries of which may include only the Participant, the
Participant's spouse, or the Participant's lineal descendants (by
blood or adoption). In the event of any such assignment, such
trust or custodianship shall be subject to all the restrictions,
obligations and responsibilities as apply to the Participant
under the Plan and shall be entitled to all the rights of the
Participant under the Plan.
(f) Certain Terms Applicable to Incentive Stock Options
(1) The aggregate fair market value of shares of
Common Stock with respect to which Incentive Stock Options are
exercisable for the first time by a Participant during any
calendar year under the Plan and any other stock option plan of
Del Monte or any "subsidiary corporation" within the meaning of
Section 424(f) of the Code shall not exceed $100,000. Such fair
market value shall be determined as of the date on which each
such Incentive Stock Option is granted. In the event that such
aggregate fair market value exceeds $100,000, then Incentive
Stock Options granted hereunder to such Participant shall, to the
extent of such excess and in the order in which they were
granted, automatically be deemed not to be Incentive Stock
Options, but all other terms and provisions of such Incentive
Stock Options shall remain unchanged.
(2) No Incentive Stock Option may be granted to an
individual if, at the time of the proposed grant, such individual
owns stock possessing more than ten percent of the total combined
voting power of all classes of stock of Del Monte or any of its
"subsidiary corporations" within the meaning of Section 424(f) of
the Code, unless (i) the exercise price of such Incentive Stock
Option is at least one hundred and ten percent of the fair market
value of a share of Common Stock at the time such Incentive Stock
Option is granted and (ii) such Incentive Stock Option is not
exercisable after the expiration of five years from the date such
Incentive Stock Option is granted.
(g) Consequences Upon Certain Transactions
Not more than ten (10) days prior to a Change of
Control, all outstanding Options shall vest and become
immediately exercisable.
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7. Adjustment Upon Changes in Common Stock
(a) Subject to any required action by the shareholders
of Del Monte, in the event of any increase or decrease in the
number of issued shares of Common Stock resulting from a
subdivision or consolidation of shares of Common Stock or the
payment of a stock dividend (but only on the shares of Common
Stock), or any other increase or decrease in the number of such
shares effected by Del Monte without receipt or payment of
consideration, the Committee shall proportionally adjust the
number of shares of Common Stock subject to each outstanding
Option and the exercise price per share of Common Stock of each
such Option.
(b) Subject to any required action by the shareholders
of Del Monte, in the event that Del Monte shall be the surviving
corporation in any merger or consolidation (except a merger or
consolidation as a result of which the holders of shares of
Common Stock receive securities of another corporation), each
Option outstanding on the date of such merger or consolidation
shall pertain to and apply to the securities which a holder of
the number of shares of Common Stock subject to such Option would
have received in such merger or consolidation.
(c) In the event of a dissolution or liquidation of
Del Monte, a sale of all or substantially all of Del Monte's
assets, a sale of all or a substantial portion of the Common
Stock held by TPG, a merger or consolidation involving Del Monte
in which Del Monte is not the surviving corporation, a merger or
consolidation involving Del Monte in which Del Monte is the
surviving corporation but the holders of shares of Common Stock
receive securities of another corporation and/or other property,
including cash, or any other similar transaction, the Committee
shall have the power to:
(i) cancel, effective immediately prior to the
occurrence of such event, each Option outstanding immediately
prior to such event (whether or not then exercisable), and, in
full consideration of such cancellation, pay to the Participant
to whom such Option was granted an amount in cash, for each share
of Common Stock subject to such Option, equal to the excess of
(A) the value, as determined by the Committee in good faith, of
the property (including cash) received by the holder of a share
of Common Stock as a result of such event over (B) the exercise
price of such Option; or
(ii) permit Participants to exercise their Options and
participate in such transaction on a basis no less favorable than
that afforded other owners of Common Stock.
(d) In the event of any change in the capitalization
of Del Monte or corporate change other than those specifically
referred to herein, the Committee will make such adjustments in
the number and class of shares subject to Options outstanding on
the date on which such change occurs and in the per share
exercise price of each such Option as the Committee may consider
necessary or appropriate.
(e) Except as expressly provided in the Plan, no
Participant shall have any rights by reason of any subdivision or
consolidation of shares of stock of any class, the payment of any
dividend, any increase or decrease in the number of shares of
stock of any class or any
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dissolution, liquidation, merger or consolidation of Del Monte or
any other corporation. Except as expressly provided in the Plan,
no issuance by Del Monte of shares of stock of any class, or
securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with
respect to, the number of shares of Common Stock subject to an
Option or the exercise price of any Option.
8. Rights as a Stockholder
(a) No person shall have any rights as a stockholder
with respect to any shares of Common Stock covered by or relating
to any Option granted pursuant to this Plan until the date of the
issuance of a stock certificate with respect to such shares.
(b) Notwithstanding anything herein to the contrary,
prior to the existence of a Public Market, Del Monte shall not be
obligated to cause to be issued or delivered to or for the
benefit of any Participant any certificates evidencing shares of
Common Stock pursuant to the Plan unless and until such
Participant executes a Stockholders' Agreement in the form
attached hereto as Exhibit D.
9. No Special Employment Rights; No Right to Option
(a) Nothing contained in the Plan or any Option shall
confer upon any Participant any right with respect to the
continuation of his employment by the Company or interfere in any
way with the right of the Company at any time to terminate such
employment or to increase or decrease the compensation of the
Participant from the rate in effect at the time of the grant of
an Option.
(b) No person shall have any claim or right to receive
an Option hereunder. The Committee's granting of an Option to a
Participant at any time shall neither require the Committee to
grant an Option to such Participant or any other Participant or
other person at any time nor preclude the Committee from making
subsequent grants to such Participant or any other Participant or
other person.
10. Securities Matters
(a) Del Monte shall be under no obligation to effect
the registration pursuant to the Securities Act of any shares of
Common Stock to be issued hereunder or to effect similar
compliance under any state laws. Notwithstanding anything herein
to the contrary, Del Monte shall not be obligated to cause to be
issued or delivered any certificates evidencing shares of Common
Stock pursuant to the Plan unless and until Del Monte is advised
by its counsel that the issuance and delivery of such
certificates is in compliance with all applicable laws,
regulations of governmental authority and the requirements of any
securities exchange on which shares of Common Stock are traded.
The Committee may require, as a condition of the issuance and
delivery of certificates evidencing shares of Common Stock
pursuant to the terms hereof, that the recipient of such shares
make such covenants, agreements and representations, and that
such certificates bear such legends, as the Committee deems
necessary or desirable.
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<PAGE>
(b) The exercise of any Option granted hereunder shall
only be effective at such time as counsel to Del Monte shall have
determined that the issuance and delivery of shares of Common
Stock pursuant to such exercise is in compliance with all
applicable laws, regulations of governmental authority and the
requirements of any securities exchange on which shares of Common
Stock are traded. Del Monte may, in its sole discretion, defer
the effectiveness of any exercise of an Option granted hereunder
in order to allow the issuance of shares of Common Stock pursuant
thereto to be made pursuant to registration or an exemption from
registration or other methods for compliance available under
federal or state securities laws. Del Monte shall inform the
Participant in writing of its decision to defer the effectiveness
of the exercise of an Option granted hereunder. During the period
that the effectiveness of the exercise of an Option has been
deferred, the Participant may, by written notice, withdraw such
exercise and obtain the refund of any amount paid with respect
thereto.
(c) In the event that the Committee defers the
effectiveness of the exercise by a Participant of an Option
granted hereunder in order to allow the issuance of shares of
Common Stock pursuant thereto to be made pursuant to registration
or an exemption from registration or other methods for compliance
available under federal or state securities laws, such
Participant may elect, by delivery of written notice by the
Participant to the Company not later than thirty (30) days
following his receipt of notice of such deferral or the
expiration of such deferral, to surrender the exercisable portion
of such Option (or any portion thereof) to the Company in
consideration for a lump sum payment in cash in an amount equal
to the product of (A) the excess of (i) the value of a share of
Common Stock as determined by the Board of Directors as of the
date of surrender over (ii) the per share exercise price of the
Option and (B) the number of shares with respect to which such
Participant desires and is entitled to exercise such Option.
Notice shall be 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.
11. Withholding Taxes
(a) Cash Remittance
Whenever shares of Common Stock are to be issued upon
the exercise of an Option, the Company shall have the right to
require the Participant to remit to the Company in cash an amount
sufficient to satisfy federal, state and local withholding tax
requirements, if any, attributable to such exercise prior to the
delivery of any certificate or certificates for such shares. In
addition, upon the making of any cash payment pursuant to the
Plan, the Company shall have the right to withhold from such
payment an amount sufficient to satisfy the federal, state and
local withholding tax requirements, if any, attributable to such
exercise.
(b) Stock Remittance or Withholding
At the election of the Participant, when shares of
Common Stock are to be issued upon the exercise of an Option, the
Participant may tender to Del Monte a number of shares of Common
Stock previously owned by him, or direct the Company to withhold
a number of shares of Common Stock, the value of which as of the
exercise date the Committee determines to be
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sufficient to satisfy the federal, state and local withholding
tax requirements, if any, attributable to such exercise (based
upon the value of a share of Common Stock as determined by the
Board of Directors as of the exercise date) and not greater than
the Participant's estimated total federal, state and local tax
obligations associated with such exercise. Such election shall
satisfy the Participant's obligations under Paragraph 11(a)
hereof. In the event that a Participant makes an election
pursuant to this Section 11(b) prior to the existence of a Public
Market for the Common Stock, the delivery by Del Monte of
certificates representing the shares of Common Stock purchased
upon such exercise shall be deferred pending a determination of
the exact number of the shares of Common Stock required to be
tendered or withheld.
12. Termination and Amendment of the Plan
The right to grant Options under the Plan will
terminate on August 4, 2007. The Board of Directors may at any
time suspend or terminate the Plan or revise or amend it in any
respect whatsoever.
13. Transfers Upon Death
Upon the death of a Participant, outstanding Options
granted to such Participant may be exercised only by the
executors or administrators of the Participant's estate or by any
person or persons who shall have acquired such right to exercise
by will or by the laws of descent and distribution. No transfer
by will or the laws of descent and distribution of any Option, or
the right to exercise any Option, shall be effective to bind the
Company unless the Committee shall have been furnished with (a)
written notice thereof and with a copy of the will and/or such
evidence as the Committee may deem necessary to establish the
validity of the transfer and (b) an agreement by the transferee
to comply with all the terms and conditions of the Option that
are or would have been applicable to the Participant and to be
bound by the acknowledgements made by the Participant in
connection with the grant of the Option.
14. No Obligation to Exercise
The grant to a Participant of an Option shall impose
no obligation upon such Participant to exercise such Option.
15. Expenses and Receipts
The expenses of the Plan shall be paid by the Company.
Any proceeds received by the Company in connection with any
Option will be used for general corporate purposes.
l6. Failure to Comply
In addition to the remedies of the Company elsewhere
provided for herein, failure by a Participant to comply with any
of the terms and conditions of the Plan or the agreement executed
by such Participant evidencing an Option, unless such failure is
remedied by such Participant within ten (10) days after having
been notified of such failure by the Committee, shall
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<PAGE>
be grounds for the cancellation and forfeiture of such Option, in
whole or in part, as the Committee, in its absolute discretion,
may determine.
17. Applicable Law
The Plan will be administered in accordance with the
laws of the State of California, without reference to its
principles of conflicts of law.
12
EXHIBIT D
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT (this "Agreement"), dated as
of ________, 199__, between Del Monte Foods Company (the
"Company") and ________________________ (the "Stockholder").
WHEREAS, the Stockholder is an employee of the Company
and in such capacity was granted an option (the "Option") to
purchase shares of common stock of the Company, par value $.01
per share ("Common Stock"), pursuant to the Company's 1997 Stock
Incentive Plan (the "Option Plan");
WHEREAS, as a condition to the issuance of shares of
Common Stock pursuant to the exercise of an Option, the
Stockholder is required under the Option Plan to execute this
Agreement; and
WHEREAS, the Stockholder desires to exercise the Option
to purchase __________ shares of Common Stock; and
WHEREAS, the Stockholder and the Company desire to
enter this Agreement and to have this Agreement apply to the
shares to be purchased pursuant to the Option Plan and to any
shares of Common Stock acquired after the date hereof by the
Stockholder from whatever source, subject to any future agreement
between the Company and the Stockholder to the contrary (in the
aggregate, the "Shares").
NOW THEREFORE, in consideration of the premises
hereinafter set forth, and other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereto
agree as follows.
1. Investment. The Stockholder represents that the Shares
are being acquired for investment and not with a view toward the
distribution thereof.
2. Issuance of Shares. The Stockholder acknowledges
and agrees that the certificate for the Shares shall bear the
following legends (except that the second paragraph of this
legend shall not be required after the Shares have been
registered and except that the first paragraph of this legend
shall not be required after the termination of this Agreement):
The shares represented by this certificate are subject to
the terms and conditions of a Stockholders' Agreement dated
as of ______________, 19__ and may not be sold,
transferred, hypothecated, assigned or encumbered, except
as may be permitted by the aforesaid Agreement. A copy of
the Stockholders' Agreement may be obtained from the
Secretary of the Company.
<PAGE>
The shares represented by this certificate have not been
registered under the Securities Act of 1933. The shares
have been acquired for investment and may not be sold,
transferred, pledged or hypothecated in the absence of an
effective registration statement for the shares under the
Securities Act of 1933 or an opinion of counsel for the
Company that registration is not required under said Act.
Upon the termination of this Agreement, or upon
registration of the Shares under the Securities Act of 1933 (the
"Securities Act"), the Stockholder shall have the right to
exchange any Shares containing the above legend (i) in the case
of the registration of the Shares, for Shares legended only with
the first paragraph described above and (ii) in the case of the
termination of this Agreement, for Shares legended only with the
second paragraph described above.
3. Transfer of Shares; Put and Call Options.
(a) The Stockholder agrees that he will not cause or
permit the Shares or his interest in the Shares to be sold,
transferred, hypothecated, assigned or encumbered except as
expressly permitted by this Section 3; provided, however, that
the Shares or any such interest may be transferred (i) on the
Stockholder's death by bequest or inheritance to the
Stockholder's executors, administrators, testamentary trustees,
legatees or beneficiaries, (ii) to a trust or custodianship the
beneficiaries of which may include only the Stockholder, the
Stockholder's spouse, or the Stockholder's lineal descendants (by
blood or adoption), (iii) in accordance with Section 4 of this
Agreement, and (iv) to the Company pursuant to Section 6(e)(2) or
Section 11(b) of the Option Plan, subject in any such case to the
agreement by each transferee (other than the Company) in writing
to be bound by the terms of this Agreement and provided in any
such case that no such transfer that would cause the Company to
be required to register the Common Stock under Section 12(g) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), shall be permitted.
(b) The Company (or its designated assignee) shall
have the right, during the ninety-day period beginning 275 days
after the termination of the employment of the Stockholder with
the Company for any other reason at any time, to purchase from
the Stockholder, and upon the exercise of such right the
Stockholder shall sell to the Company (or its designated
assignee), all or any portion of the Shares held by the
Stockholder as of the date as of which such right is exercised at
a per Share price equal to the value of a share of Common Stock
as determined by the Board of Directors of the Company (the
"Board of Directors") as of the date as of which such right is
exercised. The Company (or its designated assignee) shall
exercise such right by delivering to the Stockholder a written
notice specifying its intent to purchase Shares held by the
Stockholder, the date as of which such right is to be exercised
and the number of Shares to be purchased. Such purchase and sale
shall occur on such date as the Company (or its designated
assignee) and the Stockholder shall agree, which date shall not
be later than the earlier of (i) ninety (90) days after the
fiscal quarter-end immediately following the date as of which the
Company's right is exercised and (ii) thirty (30) days after the
date on which such value is determined by the Board of Directors.
<PAGE>
(c) The Stockholder shall have the right, during the
(x) one-year period following the termination of the Stockholder's
employment as a result of death or Permanent Disability or (y)
ninety-day period immediately following the termination of the
employment of the Stockholder with the Company for any other
reason at any time, to sell to the Company (or its designated
assignee), and upon the exercise of such right the Company (or
its designated assignee) shall purchase from the Stockholder, all
or any portion of the Shares held by the Stockholder as of the
date as of which such right is exercised at a per Share price
equal to the value of a share of Common Stock as determined by
the Board of Directors as of the date as of which such right is
exercised. The Stockholder shall exercise such right by
delivering to the Company a written notice specifying its intent
to sell Shares held by the Stockholder, the date as of which such
right is to be exercised and the number of Shares to be sold.
Such purchase and sale shall occur on such date as the Company
(or its designated assignee) and the Stockholder shall agree,
which date shall not be later than the earlier of (i) ninety (90)
days after the fiscal quarter-end immediately following the date
as of which the Stockholder's right is exercised and (ii) thirty
(30) days after the date on which such value is determined by the
Board of Directors. For purposes of this Section 3(c), "Permanent
Disability" shall mean physical or mental disability as a result
of which the Stockholder is unable to perform his duties with the
Company on substantially a full-time basis for any period of six
(6) consecutive months. Any dispute as to whether or not the
Stockholder is so disabled shall be resolved by a physician
reasonably acceptable to the Stockholder and the Company whose
determination shall be final and binding upon both the
Stockholder and the Company. Notwithstanding the foregoing
provisions, "Permanent Disability," when used in connection with
the termination of the employment with the Company of a
Stockholder who at the time of such termination is a party to a
written employment or retention agreement with the Company, shall
have the meaning assigned to such term in such agreement.
4. Certain Rights.
(a) Drag Along Rights. If TPG Partners, L.P. ("TPG")
desires to sell its shares of Common Stock to a good faith
independent purchaser (a "Purchaser") (other than any other
investment partnership, limited liability company or other entity
established for investment purposes and controlled by the
principals of TPG) and said Purchaser desires to acquire all of
the issued and outstanding shares of Common Stock upon such terms
and conditions as agreed to with TPG, the Stockholder agrees to
sell all of his Shares to said Purchaser (or to vote in favor of
any merger or other transaction which would effect such a sale)
at the same price per share of Common Stock and pursuant to the
same terms and conditions with respect to payment for the shares
of Common Stock as agreed to by TPG. In such case, TPG shall give
written notice of such sale to the Stockholder at least 30 days
prior to the consummation of such sale, setting forth (i) the
consideration to be received by the holders of shares of Common
Stock, (ii) the identity of the Purchaser, (iii) any other
material items and conditions of the proposed transfer and (iv)
the date of the proposed transfer.
(b) Tag Along Rights. If TPG or its affiliates proposes to
transfer any of its shares of Common Stock to a Purchaser other than
an affiliate or employee of TPG or its affiliates, then TPG or such af-
filiate (hereinafter referred to as a "Selling Stockholder") shall give
<PAGE>
written notice of such proposed transfer to the Stockholder at
least 30 days prior to the consummation of such proposed
transfer, setting forth (i) the number of shares of Common Stock
offered, (ii) the consideration to be received by such Selling
Stockholder, (iii) the identity of the Purchaser, (iv) any other
material items and conditions of the proposed transfer and (v)
the date of the proposed transfer.
The Stockholder may elect to sell a Pro Rata Portion
(as hereinafter defined) of his Shares, at the same price per
share of Common Stock and pursuant to the same terms and
conditions with respect to payment for the shares of Common Stock
as agreed to by the Selling Stockholder, by sending written
notice to the Selling Stockholder within 15 days of the date of
the Selling Stockholder's notice, indicating a desire to sell
such Pro Rata Portion of his Shares in the same transaction.
Following such 15 day period, the Selling Stockholder shall be
permitted to sell to the Purchaser additional Shares representing
Shares not sold by other stockholders of the Company.
For purposes of Sections 4(b) and 4(c) hereof, "Pro
Rata Portion" shall mean a number equal to the product of (x) the
total number of Shares owned by the Stockholder and (y) a
fraction, the numerator of which shall be the total number of
shares of Common Stock offered (for sale or registration, as
applicable) by the Selling Stockholder, and the denominator of
which shall be the total number of shares of Common Stock owned
by the Selling Stockholder (including the shares of Common Stock
proposed to be sold or registered by the Selling Stockholder);
provided, however, that any fraction of a share resulting from
such calculation shall be disregarded for purposes of determining
the Pro Rata Portion.
(c) Piggyback Registration Rights.
(i) Notice to Stockholder. If the Company determines
that it will file a registration statement under the Securities
Act, other than a registration statement on Form S-4 or Form S-8
or any successor form, for an offering which includes shares of
Common Stock held by TPG or its affiliates (hereinafter referred
to as a "Selling Stockholder"), then the Company shall give
prompt written notice to the Stockholder that such filing is
expected to be made (but in no event less than 30 days nor more
than 60 days in advance of filing such registration statement),
the jurisdiction or jurisdictions in which such offering is
expected to be made, and the underwriter or underwriters (if any)
that the Company (or the person requesting such registration)
intends to designate for such offering. If the Company, within 15
days after giving such notice, receives a written request for
registration of any Shares from the Stockholder, then the Company
shall include in the same registration statement the number of
Shares to be sold by the Stockholder as shall have been specified
in his request, except that the Stockholder shall not be
permitted to register more than a Pro Rata Portion of his Shares.
The Company shall bear all costs of preparing and filing the
registration statement, and shall indemnify and hold harmless, to
the extent customary and reasonable, pursuant to indemnification
and contribution provisions to be entered into by the Company at
the time of filing of the registration statement, the seller of
any shares of Common Stock covered by such registration
statement.
<PAGE>
Notwithstanding anything herein to the contrary, the
Company, on prior notice to the participating Stockholder, may
abandon its intention to file a registration statement under this
Section 4(c) at any time prior to such filing.
(ii) Allocation. If the managing underwriter shall
inform the Company in writing that the number of shares of Common
Stock requested to be included in such registration exceeds the
number which can be sold in (or during the time of) such offering
within a price range acceptable to TPG, then the Company shall
include in such registration such number of shares of Common
Stock which the Company is so advised can be sold in (or during
the time of) such offering. All holders of shares of Common Stock
proposing to sell shares of Common Stock shall share pro rata in
the number of shares of Common Stock to be excluded from such
offering, such sharing to be based on the respective numbers of
shares of Common Stock as to which registration has been
requested by such holders.
(iii) Permitted Transfer. Notwithstanding anything to
the contrary contained herein, sales of Shares pursuant to a
registration statement filed by the Company may be made without
compliance with any other provision of this Agreement.
5. Termination. This Agreement shall terminate
immediately following the commencement of a Public Market for the
Common Stock, except that (i) the requirements contained in
Section 2 hereof shall survive the termination of this Agreement
and (ii) the provisions contained in Section 3 hereof shall
continue with respect to each Share during such period of time,
if any, as the Stockholder is precluded from selling such Share
pursuant to Rule 144 of the Securities Act. For this purpose, a
"Public Market" for the Common Stock shall be deemed to exist if
the Common Stock is registered under Section 12(b) or 12(g) of
the Exchange Act, or if trading regularly occurs in such Common
Stock in, on or through the facilities of securities exchanges
and/or inter-dealer quotation systems in the United States
(within the meaning of Section 902(n) of the Securities Act) or
any designated offshore securities market (within the meaning of
Rule 902(a) of the Securities Act).
6. Distributions With Respect To Shares. As used herein,
the term "Shares" includes securities of any kind whatsoever
distributed with respect to the Common Stock acquired by the
Stockholder pursuant to the Option Plan or any such securities
resulting from a stock split or consolidation involving such
Common Stock.
7. Amendment; Assignment. This Agreement may be
amended, superseded, cancelled, renewed or extended, and the
terms hereof may be waived, only by a written instrument signed
by authorized representatives of the parties or, in the case of a
waiver, by an authorized representative of the party waiving
compliance. No such written instrument shall be effective unless
it expressly recites that it is intended to amend, supersede,
cancel, renew or extend this Agreement or to waive compliance
with one or more of the terms hereof, as the case may be. Except
for the Stockholder's right to assign his or her rights under
Section 3(a) or the Company's right to assign its rights under
Section 3(b) or its obligations under Section 3(c), no party to
this Agreement may assign any of its rights or obligations under
this Agreement without the prior written consent of the other
parties hereto.
<PAGE>
8. Notices. All notices and other communications here-
under shall be in writing, shall be deemed to have been given if
delivered in person or by certified mail, return receipt
requested, and shall be deemed to have been given when personally
delivered or three (3) days after mailing to the following
address:
If to the Stockholder:
If to the Company:
Del Monte Foods Company
One Market
San Francisco, CA 94105
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.
<PAGE>
14. Miscellaneous. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
* * * * * *
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the day and year first
above written.
___________________________
[Stockholder]
DEL MONTE FOODS COMPANY
___________________________
By:
Title:
TPG PARTNERS, L.P.
___________________________
By:
Title:
DEL MONTE FOODS COMPANY
BY-LAWS
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICE. The principal office of
the Corporation shall be c/o the office of The Corporation Trust
Incorporated at 32 South Street, Baltimore, Maryland.
Section 2. ADDITIONAL OFFICES. The Corporation may have
additional offices at such places, within or without the State of
Maryland, as the Board of Directors may from time to time
determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. PLACE. All meetings of stockholders shall be
held at the principal office of the Corporation or at such other
place within the United States as shall be stated in the notice of
the meeting.
Section 2. ANNUAL MEETING. An annual meeting of the
stockholders for the election of directors and the transaction of
any business within the powers of the Corporation shall be held
on a date and at the time set by the Board of Directors during
the month of February in each year.
Section 3. SPECIAL MEETINGS. The president, chief
executive officer or Board of Directors may call special meetings
of the stockholders. Special meetings of stockholders shall also
be called by the secretary of the Corporation upon the written
request of the holders of shares entitled to cast not less than a
majority of all the votes entitled to be cast at such meeting.
Such request shall state the purpose of such meeting and the
matters proposed to be acted on at such meeting. Unless requested
by the stockholders entitled to cast a majority of all the votes
entitled to be cast at such meeting, a special meeting need not
be called to consider any matter which is substantially the same
as a matter voted on at any special meeting of the stockholders
held during the preceding 12 months.
Section 4. NOTICE. Not less than 10 nor more than 90
days before each meeting of stockholders, the secretary shall
give to each stockholder entitled to vote at such meeting and to
each stockholder not entitled to vote who is entitled to notice
of the meeting written or printed notice stating the time and
place of the meeting and, in the case of a special meeting or as
otherwise may be required by any statute, the purpose for which
the meeting is called and at whose direction it is being issued,
either by mail or by presenting it to such stockholder personally
or by leaving it at his residence or
<PAGE>
usual place of business. If mailed, such notice shall be deemed
to be given when deposited in the United States mail addressed to
the stockholder at his post office address as it appears on the
records of the Corporation, with postage thereon prepaid.
Section 5. SCOPE OF NOTICE. Any business of the
Corporation may be transacted at an annual meeting of
stockholders without being specifically designated in the notice,
except such business as is required by any statute to be stated
in such notice. No business shall be transacted at a special
meeting of stockholders except as specifically designated in the
notice.
Section 6. ORGANIZATION. At every meeting of
stockholders, the chairman of the board, if there be one, shall
conduct the meeting or, in the case of vacancy in office or
absence of the chairman of the board, one of the following
officers present shall conduct the meeting in the order stated:
the vice chairman of the board, the chief executive officer, the
chief operating officer, the president, any vice president, or a
chairman chosen by the stockholders entitled to cast a majority
of the votes which all stockholders present in person or by proxy
are entitled to cast, shall act as chairman, and the secretary
or, in his absence, an assistant secretary, or in the absence of
both the secretary and assistant secretaries, a person appointed
by the chairman shall act as secretary.
Section 7. QUORUM. At any meeting of stockholders, the
presence in person or by proxy of stockholders entitled to cast a
majority of all the votes entitled to be cast at such meeting
shall constitute a quorum; but this section shall not affect any
requirement under any statute or the charter of the Corporation
for the vote necessary for the adoption of any measure.
Section 8. ADJOURNED MEETING. If a quorum shall not be
present at any meeting of the stockholders, the stockholders
entitled to vote at such meeting, present in person or by proxy,
shall have the power to adjourn the meeting from time to time to
a date not more than 120 days after the original record date
without notice other than announcement at the meeting. At such
adjourned meeting at which a quorum shall be present, any
business may be transacted which might have been transacted at
the meeting as originally notified.
Section 9. VOTING. A plurality of all the votes cast at
a meeting of stockholders duly called and at which a quorum is
present shall be sufficient to elect a director. Each share may
be voted for as many individuals as there are directors to be
elected and for whose election the share is entitled to be voted.
A majority of the votes cast at a meeting of stockholders duly
called and at which a quorum is present shall be sufficient to
approve any other matter which may properly come before the
meeting, unless more than a majority of the votes cast is
required by statute or by the charter of the Corporation. Unless
otherwise provided in the charter, each outstanding share,
regardless of class, shall be entitled to one vote on each matter
submitted to a vote at a meeting of stockholders.
Section 10. PROXIES. A stockholder may cast the votes
entitled to be cast by the shares of the stock owned of record by
him either in person or by proxy executed in writing by the
stockholder or by his duly authorized agent. Such proxy shall be
filed with the Secretary of the
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<PAGE>
Corporation before or at the time of the meeting. No proxy shall
be valid after 11 months from the date of its execution, unless
otherwise provided in the proxy.
Section 11. ACTION BY WRITTEN CONSENT OF STOCKHOLDERS.
Whenever by any provision of statute or of the charter or of
these By-laws, the vote of stockholders at a meeting thereof is
required or permitted to be taken in connection with any
corporate action, the meeting and vote of stockholders may be
dispensed with, so long as the following are filed with the
records of the stockholders meeting: (1) a unanimous written
consent which sets forth the action and is signed by each
stockholder entitled to vote on the matter; and (2) a written
waiver of any right to dissent signed by each stockholder
entitled to notice of the meeting but not entitled to vote at it.
Section 12. VOTING OF STOCK BY CERTAIN HOLDERS. Stock of
the Corporation registered in the name of a corporation, partnership,
trust or other entity, if entitled to be voted, may be voted by
the president or a vice president, a general partner or trustee
thereof, as the case may be, or a proxy appointed by any of the
foregoing individuals, unless some other person who has been
appointed to vote such stock pursuant to a bylaw or a resolution
of the governing body of such corporation or other entity or
agreement of the partners of a partnership presents a certified
copy of such bylaw, resolution or agreement, in which case such
person may vote such stock. Any director or other fiduciary may
vote stock registered in his name as such fiduciary, either in
person or by proxy.
Shares of stock of the Corporation directly or
indirectly owned by it shall not be voted at any meeting and
shall not be counted in determining the total number of
outstanding shares entitled to be voted at any given time, unless
they are held by it in a fiduciary capacity, in which case they
may be voted and shall be counted in determining the total number
of outstanding shares at any given time.
The Board of Directors may adopt by resolution a
procedure by which a stockholder may certify in writing to the
Corporation that any shares of stock registered in the name of
the stockholder are held for the account of a specified person
other than the stockholder. The resolution shall set forth the
class of stockholders who may make the certification, the purpose
for which the certification may be made, the form of
certification and the information to be contained in it; if the
certification is with respect to a record date or closing of the
stock transfer books, the time after the record date or closing
of the stock transfer books within which the certification must
be received by the Corporation; and any other provisions with
respect to the procedure which the Board of Directors considers
necessary or desirable. On receipt of such certification, the
person specified in the certification shall be regarded as, for
the purposes set forth in the certification, the stockholder of
record of the specified stock in place of the stockholder who
makes the certification.
Notwithstanding any other provision of the charter of
the Corporation or these Bylaws, Title 3, Subtitle 7 of the
Corporations and Associations Article of the Annotated Code of
Maryland (or any successor statute) shall not apply to any
acquisition by any person of shares of stock of the Corporation.
This section may be repealed, in whole or in part, at any time,
whether before or after
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<PAGE>
an acquisition of control shares and, upon such repeal, may, to
the extent provided by any successor bylaw, apply to any prior or
subsequent control share acquisition.
ARTICLE III
DIRECTORS
Section 1. NUMBER, TENURE AND QUALIFICATIONS. The
number of directors of the Corporation shall be not less than the
minimum number required by the Maryland General Corporation Law
and shall not be more than eleven (11). The directors shall hold
office for the term of one year and until the successor or
successors is or are elected and shall qualify. The number of
directors may be increased or decreased from time to time by any
regular or special meeting called for that purpose by a majority
of the Board of Directors, provided that the tenure of office of
a director shall not be affected by any decrease in the number of
directors. Directors need not be stockholders.
Section 2. POWERS. The Board of Directors may adopt
such rules and regulations for the conduct of its meetings, the
exercise of its powers and the direction of the management of the
affairs of the Corporation as it may deem proper, not
inconsistent with the laws of the State of Maryland, the Charter
or these By-laws.
In addition to the powers and authorities by these
By-laws expressly conferred upon them, the directors may exercise
all such powers of the Corporation and do such lawful acts and
things as are not by statute or by the Charter or by these
By-laws directed or required to be exercised or done by the
stockholders.
Section 3. ANNUAL AND REGULAR MEETINGS. An annual
meeting of the Board of Directors shall be held immediately after
and at the same place as the annual meeting of stockholders. The
Board of Directors may provide, by resolution, the time and
place, either within or without the State of Maryland, for the
holding of regular meetings of the Board of Directors without
other notice than such resolution.
Section 4. SPECIAL MEETINGS. Special meetings of the
Board of Directors may be called by or at the request of the
chairman of the board, the chief executive officer, the president
or by a majority of the directors then in office. The person or
persons authorized to call special meetings of the Board of
Directors may fix any place, either within or without the State
of Maryland, as the place for holding any special meeting of the
Board of Directors called by them.
Section 5. NOTICE. Notice of any special meeting of the
Board of Directors shall be delivered personally or by telephone,
facsimile transmission, United States mail or courier to each
director at his business or residence address. Notice by personal
delivery, by telephone or a facsimile transmission shall be given
at least one hour prior to the meeting. Notice by mail shall be
given at least five days prior to the meeting and shall be deemed
to be given when deposited in the United States mail properly
addressed, with postage thereon prepaid. Telephone notice shall
be deemed to be given
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<PAGE>
when the director is personally given such notice in a telephone
call to which he is a party. Facsimile transmission notice shall
be deemed to be given upon completion of the transmission of the
message to the number given to the Corporation by the director
and receipt of a completed answer-back indicating receipt.
Neither the business to be transacted at, nor the purpose of, any
annual, regular or special meeting of the Board of Directors need
be stated in the notice, unless specifically required by statute
or these By-laws.
Section 6. QUORUM. A majority of the directors shall
constitute a quorum for transaction of business at any meeting of
the Board of Directors, provided that, if less than a majority of
such directors are present at said meeting, a majority of the
directors present may adjourn the meeting from time to time
without further notice, and provided further that if, pursuant to
the charter of the Corporation or these By-laws, the vote of a
majority of a particular group of directors is required for
action, a quorum must also include a majority of such group.
The directors present at a meeting which has
been duly called and convened may continue to transact business
until adjournment, notwithstanding the withdrawal of enough
directors to leave less than a quorum.
Section 7. VOTING. The action of the majority of the
directors present at a meeting at which a quorum is present shall
be the action of the Board of Directors, unless the concurrence
of a greater proportion is required for such action by applicable
statute.
Section 8. TELEPHONE MEETINGS. Directors may
participate in a meeting by means of a conference telephone or
similar communications equipment if all persons participating in
the meeting can hear each other at the same time. Participation
in a meeting by these means shall constitute presence in person
at the meeting.
Section 9. UNANIMOUS WRITTEN CONSENT. Any action
required or permitted to be taken at any meeting of the Board of
Directors or any committee thereof may be taken without a
meeting, if a consent in writing to such action is signed by each
director or committee member and such written consent is filed
with the minutes of proceedings of the Board of Directors or such
committee.
Section 10. VACANCIES, REMOVAL. Except as otherwise
provided in the Charter or in the following paragraph, any
vacancy on the Board of Directors for any cause other than an
increase in the number of directors shall be filled by a majority
of the remaining directors, even if such majority is less than a
quorum or, if the vacancy results from the removal of a director,
may be filled by the stockholders. Any vacancy in the number of
directors created by an increase in the number of directors may
be filled by a majority vote of the entire Board of Directors.
Any individual so elected as director shall hold office until the
next annual meeting of stockholders and until his successor is
elected and qualifies.
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<PAGE>
Except where the Charter contains provisions
authorizing cumulative voting or the election of one or more
directors by class or their election by holders of bonds, or
requires all action by stockholders to be by a greater vote, any
one or more directors may be removed, either for or without
cause, at any time, by vote of the stockholders holding a
majority of the outstanding stock of the Corporation entitled to
be cast for the election of directors, present in person or by
proxy, at any special meeting of the stockholders. If the
Corporation utilizes cumulative voting for the election of
directors and less than the entire board is to be removed, a
director may not be removed without cause if the votes cast
against his removal would be sufficient to elect him if then
cumulatively voted at an election of the entire Board of
Directors or, if there is more than one class of directors, at an
election of the class of directors of which he is a member.
Section 11. LOSS OF DEPOSITS. No director shall be
liable for any loss which may occur by reason of the failure of
the bank, trust company, savings and loan association, or other
institution with whom moneys or stock have been deposited.
Section 12. SURETY BONDS. Unless required by law, no
director shall be obligated to give any bond or surety or other
security for the performance of any of his duties.
Section 13. RELIANCE. Each director, officer, employee
and agent of the Corporation shall, in the performance of his
duties with respect to the Corporation, be fully justified and
protected with regard to any act or failure to act in reliance in
good faith upon the books of account or other records of the
Corporation, upon an opinion of counsel or upon reports made to
the Corporation by any of its officers or employees or by the
adviser, accountants, appraisers or other experts or consultants
selected by the Board of Directors or officers of the
Corporation, regardless of whether such counsel or expert may
also be a director.
ARTICLE IV
COMMITTEES
Section 1. NUMBER, TENURE AND QUALIFICATIONS. The Board
of Directors may appoint from among its members an Executive
Committee, an Audit Committee, a Nominating and Compensation
Committee and any other committees, composed of one or more
directors, to serve at the pleasure of the Board of Directors.
Section 2. POWERS. The Board of Directors may delegate to
committees appointed under Section 1 of this Article any of the
powers of the Board of Directors, except as prohibited by law.
Section 3. MEETINGS. Notice of committee meetings shall be
given in the same manner as notice for special meetings of the
Board of Directors. A majority of the members of the committee
shall constitute a quorum for the transaction of business at any
meeting of the committee. The act of a majority of the committee
members present at a meeting shall be the act of such
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<PAGE>
committee. The Board of Directors may designate a chairman of any
committee, and such chairman or any two members of any committee
may fix the time and place of its meeting unless the Board shall
otherwise provide. In the absence of any member of any such
committee, the members thereof present at any meeting, whether or
not they constitute a quorum, may appoint another director to act
in the place of such absent member. Each committee shall keep
minutes of its proceedings.
Section 4. TELEPHONE MEETINGS. Members of a committee
of the Board of Directors may participate in a meeting by means
of a conference telephone or similar communications equipment if
all persons participating in the meeting can hear each other at
the same time. Participation in a meeting by these means shall
constitute presence in person at the meeting.
Section 5. INFORMAL ACTION BY COMMITTEES. Any action
required or permitted to be taken at any meeting of a committee
of the Board of Directors may be taken without a meeting, if a
consent in writing to such action is signed by each member of the
committee and such written consent is filed with the minutes of
proceedings of such committee.
Section 6. VACANCIES. Subject to the provisions hereof,
the Board of Directors shall have the power at any time to change
the membership of any committee, to fill all vacancies, to
designate alternate members to replace any absent or disqualified
member or to dissolve any such committee.
ARTICLE V
OFFICERS
Section 1. GENERAL PROVISIONS. The officers of the
Corporation shall include a president, a secretary and a
treasurer and may include a chairman of the board, a vice
chairman of the board, a chief executive officer, a chief
operating officer, a chief financial officer, one or more vice
presidents, one or more assistant secretaries and one or more
assistant treasurers. In addition, the Board of Directors may
from time to time appoint such other officers with such powers
and duties as they shall deem necessary or desirable. The
officers of the Corporation shall be elected annually by the
Board of Directors at the first meeting of the Board of Directors
held after each annual meeting of stockholders, except that the
chief executive officer may appoint one or more vice presidents,
assistant secretaries and assistant treasurers. If the election
of officers shall not be held at such meeting, such election
shall be held as soon thereafter as may be convenient. Each
officer shall hold office until his successor is elected and
qualifies or until his death, resignation or removal in the
manner hereinafter provided. Any two or more offices except
president and vice president may be held by the same person. In
its discretion, the Board of Directors may leave unfilled any
office except that of president, treasurer and secretary.
Election of an officer or agent shall not of itself create
contract rights between the Corporation and such officer or
agent.
Section 2. REMOVAL AND RESIGNATION. Any officer or agent
of the Corporation may be removed by the Board of Directors if in
its judgment the best interests of the
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<PAGE>
Corporation would be served thereby, but such removal shall be
without prejudice to the contract rights, if any, of the person
so removed. Any officer of the Corporation may resign at any time
by giving written notice of his resignation to the Board of
Directors, the chairman of the board, the president or the
secretary. Any resignation shall take effect at any time
subsequent to the time specified therein or, if the time when it
shall become effective is not specified therein, immediately upon
its receipt. The acceptance of a resignation shall not be
necessary to make it effective unless otherwise stated in the
resignation. Such resignation shall be without prejudice to the
contract rights, if any, of the Corporation.
Section 3. VACANCIES. A vacancy in any office may be
filled by the Board of Directors for the balance of the term.
Section 4. CHIEF EXECUTIVE OFFICER. The Board of
Directors may designate a chief executive officer, who may or may
not also hold the office of the president. In the absence of such
designation, the chairman of the board shall be the chief
executive officer of the Corporation. The chief executive officer
shall have general responsibility for implementation of the
policies of the Corporation, as determined by the Board of
Directors, and for the management of the business and affairs of
the Corporation.
Section 5. CHIEF OPERATING OFFICER. The Board of
Directors may designate a chief operating officer. The chief
operating officer shall have the responsibilities and duties as
set forth by the Board of Directors or the chief executive officer.
Section 6. CHIEF FINANCIAL OFFICER. The Board of
Directors may designate a chief financial officer. The chief financial
officer shall have the responsibilities and duties as set forth
by the Board of Directors or the chief executive officer.
Section 7. CHAIRMAN OF THE BOARD. The Board of
Directors shall designate a chairman of the board. The chairman
of the board shall preside over the meetings of the Board of
Directors and of the stockholders at which he shall be present.
The chairman of the board shall perform such other duties as may
be assigned to him or them by the Board of Directors.
Section 8. PRESIDENT. The president or chief executive
officer, as the case may be, shall in general supervise and
control all of the business and affairs of the Corporation.
Unless the Board of Directors shall elect another person as the
president, the chief executive officer shall be the president.
The president may execute any deed, mortgage, bond, contract or
other instrument, except in cases where the execution thereof
shall be expressly delegated by the Board of Directors or by
these By-laws to some other officer or agent of the Corporation
or shall be required by law to be otherwise executed; and in
general shall perform all duties incident to the office of
president and such other duties as may be prescribed by the Board
of Directors from time to time.
Section 9. VICE PRESIDENTS. In the absence of the
president or in the event of a vacancy in such office, the vice
president (or in the event there be more than one vice president, the
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<PAGE>
vice presidents in the order designated at the time of their
election or, in the absence of any designation, then in the order
of their election) shall perform the duties of the president and
when so acting shall have all the powers of and be subject to all
the restrictions upon the president; and shall perform such other
duties as from time to time may be assigned to him by the
president or by the Board of Directors. The Board of Directors
may designate one or more vice presidents as executive vice
president or as vice president for particular areas of
responsibility.
Section 10. SECRETARY. The secretary shall (a) keep the
minutes of the proceedings of the stockholders, the Board of
Directors and committees of the Board of Directors in one or more
books provided for that purpose; (b) see that all notices are
duly given in accordance with the provisions of these By-laws or
as required by law; (c) be custodian of the corporate records and
of the seal of the Corporation; (d) keep a register of the post
office address of each stockholder which shall be furnished to
the secretary by such stockholder; (e) have general charge of the
share transfer books of the Corporation; and (f) in general
perform such other duties as from time to time may be assigned to
him by the chief executive officer, the president or by the Board
of Directors.
Section 11. TREASURER. The treasurer shall have the
custody of the funds and securities of the Corporation and shall
keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the
Board of Directors. In the absence of a designation of a chief
financial officer by the Board of Directors, the treasurer shall
be the chief financial officer of the Corporation.
The treasurer shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, taking
proper vouchers for such disbursements, and shall render to the
president and Board of Directors, at the regular meetings of the
Board of Directors or whenever it may so require, an account of
all his transactions as treasurer and of the financial condition
of the Corporation.
If required by the Board of Directors, the treasurer
shall give the Corporation a bond in such sum and with such
surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his
office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all
books, papers, vouchers, moneys and other property of whatever
kind in his possession or under his control belonging to the
Corporation.
Section 12. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS.
The assistant secretaries and assistant treasurers, in general,
shall perform such duties as shall be assigned to them by the
secretary or treasurer, respectively, or by the president or the
Board of Directors. The assistant treasurers shall, if required
by the Board of Directors, give bonds for the faithful
performance of their duties in such sums and with such surety or
sureties as shall be satisfactory to the Board of Directors.
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<PAGE>
Section 13. SALARIES. The salaries and other
compensation of the officers shall be fixed from time to time by
the Board of Directors and no officer shall be prevented from
receiving such salary or other compensation by reason of the fact
that he is also a director.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. CONTRACTS. The Board of Directors may
authorize any officer or agent to enter into any contract or to
execute and deliver any instrument in the name of and on behalf
of the Corporation and such authority may be general or confined
to specific instances. Any agreement, deed, mortgage, lease or
other document executed by one or more of the directors or by an
authorized person shall be valid and binding upon the Board of
Directors and upon the Corporation when authorized or ratified by
action of the Board of Directors.
Section 2. CHECKS AND DRAFTS. All checks, drafts or
other orders for the payment of money, notes or other evidences
of indebtedness issued in the name of the Corporation shall be
signed by such officer or agent of the Corporation in such manner
as shall from time to time be determined by the Board of
Directors.
Section 3. DEPOSITS. All funds of the Corporation not
otherwise employed shall be deposited from time to time to the
credit of the Corporation in such banks, trust companies or other
depositories as the Board of Directors may designate.
ARTICLE VII
STOCK
Section 1. CERTIFICATES. Each stockholder shall be
entitled to a certificate or certificates which shall represent
and certify the number of shares of each class of stock held by
him in the Corporation. Each certificate shall be signed by the
chief executive officer, the president or a vice president and
countersigned by the secretary or an assistant secretary or the
treasurer or an assistant treasurer and may be sealed with the
seal, if any, of the Corporation. The signatures may be either
manual or facsimile. Certificates shall be consecutively
numbered; and if the Corporation shall, from time to time, issue
several classes of stock, each class may have its own number
series. A certificate is valid and may be issued whether or not
an officer who signed it is still an officer when it is issued.
Each certificate representing shares which are restricted as to
their transferability or voting powers, which are preferred or
limited as to their dividends or as to their allocable portion of
the assets upon liquidation or which are redeemable at the option
of the Corporation, shall have a statement of such restriction,
limitation, preference or redemption provision, or a summary
thereof, plainly stated on the certificate. If the Corporation
has authority to issue stock of more than one class, the
certificate shall contain on the face or back a full statement or
summary of the designations and any preferences, conversion and
other rights, voting powers, restrictions, limitations as to
dividends and other
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<PAGE>
distributions, qualifications and terms and conditions of
redemption of each class of stock and, if the Corporation is
authorized to issue any preferred or special class in series, the
differences in the relative rights and preferences between the
shares of each series to the extent they have been set and the
authority of the Board of Directors to set the relative rights
and preferences of subsequent series. In lieu of such statement
or summary, the certificate may state that the Corporation will
furnish a full statement of such information to any stockholder
upon request and without charge. If any class of stock is
restricted by the Corporation as to transferability, the
certificate shall contain a full statement of the restriction or
state that the Corporation will furnish information about the
restrictions to the stockholder on request and without charge.
Section 2. TRANSFERS. Upon surrender to the Corporation
or the transfer agent of the Corporation of a stock certificate
duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, the Corporation shall issue
a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
The Corporation shall be entitled to treat the holder
of record of any share of stock as the holder in fact thereof
and, accordingly, shall not be bound to recognize any equitable
or other claim to or interest in such share or on the part of any
other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the
State of Maryland.
Notwithstanding the foregoing, transfers of shares of
any class of stock will be subject in all respects to the charter
of the Corporation and all of the terms and conditions contained
therein.
Section 3. REPLACEMENT CERTIFICATE. Any officer
designated by the Board of Directors may direct a new certificate
to be issued in place of any certificate previously issued by the
Corporation alleged to have been lost, stolen or destroyed upon
the making of an affidavit of that fact by the person claiming
the certificate to be lost, stolen or destroyed. When authorizing
the issuance of a new certificate, an officer designated by the
Board of Directors may, in his discretion and as a condition
precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or the owner's legal
representative to advertise the same in such manner as he shall
require and/or to give bond, with sufficient surety, to the
Corporation to indemnify it against any loss or claim which may
arise as a result of the issuance of a new certificate.
Section 4. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD
DATE. The Board of Directors may set, in advance, a record date for
the purpose of determining stockholders entitled to notice of or to
vote at any meeting of stockholders or determining stockholders
entitled to receive payment of any dividend or the allotment of
any other rights, or in order to make a determination of
stockholders for any other proper purpose. Such date, in any
case, shall not be prior to the close of business on the day the
record date is fixed and shall be not more than 90 days and, in
the case of a meeting of stockholders, not less than 10 days,
before the date on which the meeting or particular action
requiring such determination of stockholders of record is to be
held or taken.
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<PAGE>
In lieu of fixing a record date, the Board of Directors
may provide that the stock transfer books shall be closed for a
stated period but not longer than 20 days. If the stock transfer
books are closed for the purpose of determining stockholders
entitled to notice of or to vote at a meeting of stockholders,
such books shall be closed for at least ten days before the date
of such meeting.
If no record date is fixed and the stock transfer books
are not closed for the determination of stockholders, (a) the
record date for the determination of stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the
close of business on the day on which the notice of meeting is
mailed or the 30th day before the meeting, whichever is the
closer date to the meeting; and (b) the record date for the
determination of stockholders entitled to receive payment of a
dividend or an allotment of any other rights shall be the close
of business on the day on which the resolution of the directors,
declaring the dividend or allotment of rights, is adopted.
When a determination of stockholders entitled to vote
at any meeting of stockholders has been made as provided in this
section, such determination shall apply to any adjournment
thereof, except when (i) the determination has been made through
the closing of the transfer books and the stated period of
closing has expired or (ii) the meeting is adjourned to a date
more than 120 days after the record date fixed for the original
meeting, in either of which case a new record date shall be
determined as set forth herein.
Section 5. STOCK LEDGER. The Corporation shall maintain
at its principal office or at the office of its counsel,
accountants or transfer agent, an original or duplicate share
ledger containing the name and address of each stockholder and
the number of shares of each class held by such stockholder.
Section 6. FRACTIONAL STOCK; ISSUANCE OF UNITS. The
Board of Directors may issue fractional stock or provide for the
issuance of scrip, all on such terms and under such conditions as
they may determine. Notwithstanding any other provision of the
charter or these By-laws, the Board of Directors may issue units
consisting of different securities of the Corporation. Any
security issued in a unit shall have the same characteristics as
any identical securities issued by the Corporation, except that
the Board of Directors may provide that for a specified period
securities of the Corporation issued in such unit may be
transferred on the books of the Corporation only in such unit.
ARTICLE VIII
ACCOUNTING YEAR
The Board of Directors shall have the power, from time
to time, to fix the fiscal year of the Corporation by a duly
adopted resolution.
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<PAGE>
ARTICLE IX
DISTRIBUTIONS
Section 1. AUTHORIZATION. Dividends and other
distributions upon the stock of the Corporation may be authorized
and declared by the Board of Directors, subject to the provisions
of law and the charter of the Corporation. Dividends and other
distributions may be paid in cash, property or stock of the
Corporation, subject to the provisions of law and the charter.
Section 2. CONTINGENCIES. Before payment of any dividends
or other distributions, there may be set aside out of any assets of
the Corporation available for dividends or other distributions
such sum or sums as the Board of Directors may from time to time,
in its absolute discretion, think proper as a reserve fund for
contingencies, for equalizing dividends or other distributions,
for repairing or maintaining any property of the Corporation or
for such other purpose as the Board of Directors shall determine
to be in the best interest of the Corporation, and the Board of
Directors may modify or abolish any such reserve in the manner in
which it was created.
ARTICLE X
INVESTMENT POLICY
Subject to the provisions of the charter of the
Corporation, the Board of Directors may from time to time adopt,
amend, revise or terminate any policy or policies with respect to
investments by the Corporation as it shall deem appropriate in
its sole discretion.
ARTICLE XI
SEAL
Section 1. SEAL. The Board of Directors may authorize
the adoption of a seal by the Corporation. The seal shall contain
the name of the Corporation and the year of its incorporation and
the words "Incorporated Maryland." The Board of Directors may
authorize one or more duplicate seals and provide for the custody
thereof.
Section 2. AFFIXING SEAL. Whenever the Corporation is
permitted or required to affix its seal to a document, it shall
be sufficient to meet the requirements of any law, rule or
regulation relating to a seal to place the word "(SEAL)" adjacent
to the signature of the person authorized to execute the document
on behalf of the Corporation.
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<PAGE>
ARTICLE XII
INDEMNIFICATION AND ADVANCE OF EXPENSES
To the maximum extent permitted by Maryland law in
effect from time to time, the Corporation shall indemnify and,
without requiring a preliminary determination of the ultimate
entitlement to indemnification, shall pay or reimburse reasonable
expenses in advance of final disposition of a proceeding to (a)
any individual who is a present or former director or officer of
the Corporation and who is made a party to the proceeding by
reason of his service in that capacity or (b) any individual who,
while a director of the Corporation and at the request of the
Corporation, serves or has served another corporation, real
estate investment trust, partnership, joint venture, trust,
employee benefit plan or any other enterprise as a director,
officer, partner or trustee of such corporation, real estate
investment trust, partnership, joint venture, trust, employee
benefit plan or other enterprise and who is made a party to the
proceeding by reason of his service in that capacity. The
Corporation may, with the approval of its Board of Directors,
provide such indemnification and advance for expenses to a person
who served a predecessor of the Corporation in any of the
capacities described in (a) or (b) above and to any employee or
agent of the Corporation or a predecessor of the Corporation.
Neither the amendment nor repeal of this Article, nor
the adoption or amendment of any other provision of the By-laws
or charter of the Corporation inconsistent with this Article,
shall apply to or affect in any respect the applicability of the
preceding paragraph with respect to any act or failure to act
which occurred prior to such amendment, repeal or adoption.
ARTICLE XIII
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to
the charter of the Corporation or these By-laws or pursuant to
applicable law, a waiver thereof in writing, signed by the person
or persons entitled to such notice, whether before or after the
time stated therein, shall be deemed equivalent to the giving of
such notice. Neither the business to be transacted at nor the
purpose of any meeting need be set forth in the waiver of notice,
unless specifically required by statute. The attendance of any
person at any meeting shall constitute a waiver of notice of such
meeting, except where such person attends a meeting for the
express purpose of objecting to the transaction of any business
on the ground that the meeting is not lawfully called or
convened.
ARTICLE XIV
AMENDMENT OF BY-LAWS
The Board of Directors shall have the exclusive power
to adopt, alter or repeal any provision of these By-laws and to
make new By-laws.
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[Letterhead of Cleary, Gottlieb, Steen & Hamilton]
Writer's Direct Dial: (212) 225-2920
November 24, 1997
William R. Sawyers, Esq.
Vice President, General Counsel and Secretary
Del Monte Foods Company
One Market
San Francisco, California 94105
Dear Sirs:
Del Monte Foods Company, a Maryland corporation, has
requested our opinion in connection with a Registration Statement
on Form S-8 (the "Registration Statement") to be filed by it
today with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the
"Act"), relating to the shares of Common Stock, $.01 par value,
of Del Monte Foods Company to be issued under the Del Monte Foods
Company Employee Stock Purchase Plan and the Del Monte Foods
Company 1997 Stock Incentive Plan (the "Plans").
We have examined and are relying on originals, or
copies certified or otherwise identified to our satisfaction, of
such corporate records and such other instruments, certificates
and representations of public officials, officers and
representatives of Del Monte Foods Company and such other
persons, and we have made such investigations of law, as we have
deemed appropriate as a basis for the opinion expressed below.
Based on the foregoing, it is our opinion that the
shares of Del Monte Foods Company issuable under the Plans are
duly authorized and, when issued in accordance with the
<PAGE>
William R. Sawyers, Esq., p. 2
terms of the Plans, at prices in excess of the par value thereof,
will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement. By giving such consent, we
do not thereby admit that we are experts with respect to any part
of the Registration Statement, including this exhibit, within the
meaning of the term "expert" as used in the Act or the rules and
regulations of the Commission issued thereunder.
Very truly yours,
CLEARY, GOTTLIEB, STEEN & HAMILTON
By: /s/ Arthur H. Kohn
-------------------------------
Arthur H. Kohn, a partner
[Letterhead of KPMG Peat Marwick LLP]
The Board of Directors
Del Monte Foods Company:
We consent to the use of our report incorporated herein by reference in the
Registration Statement Form S-8 of Del Monte Foods Company.
/s/ KPMG Peat Marwick LLP
San Francisco, California
November 20, 1997
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
Form S-8 pertaining to the Del Monte Foods Company Employee Stock Purchase
Plan and 1997 Stock Incentive Plan of our report dated August 29, 1996,
with respect to the consolidated financial statements and schedules of
Del Monte Foods Company and subsidiaries included in its Annual Report
(Form 10-K) for the year ended June 30, 1997, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
San Francisco, California
November 20, 1997
