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As filed with the Securities and Exchange Commission on May 26, 1999
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Registration No. 333-
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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)
Delaware 13-3542950
(State or Other Jurisdiction of (I.R.S. Employer Identification
Incorporation or Organization) Number)
One Market
San Francisco, California 94105
(415) 247-3000
(Address of Registrant's Principal Executive Offices)
DEL MONTE FOODS COMPANY
NON-EMPLOYEE DIRECTOR AND INDEPENDENT CONTRACTOR
1997 STOCK INCENTIVE PLAN
DEL MONTE FOODS COMPANY
DIRECTORS' FEE PLAN
DEL MONTE FOODS COMPANY
1998 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)
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
maximum Proposed
offering maximum Amount of
Title of each class of securities Amount to be price per aggregate registration
to be registered registered(1) share offering price fee
---------------- ------------- ----- -------------- ---
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 148,828 shares $5.22(2) $776,883(2) $216(2)
Common Stock, par value $.01 per share 1,861,011 shares $13.00(2) $24,193,143(2) $6,726(2)
Common Stock, par value $.01 per share 1,584,676 shares $12.57(3) $19,919,378(3) $5,538(3)
Total 3,594,515 shares --- $44,889,404 $12,480
</TABLE>
(1) Together with an indeterminate number of shares that may be necessary to
adjust the number of shares reserved for issuance pursuant to the Del
Monte Foods Company Non-Employee Director and Independent Contractor 1997
Stock Incentive Plan, the Del Monte Foods Company Directors' Fee Plan, and
the Del Monte Foods Company 1998 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 (the "Registrant").
(2) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to shares of Common Stock issuable
pursuant to stock options granted under the Del Monte Foods Company
Non-Employee Director and Independent Contractor 1997 Stock Incentive Plan
and the Del Monte Foods Company 1998 Stock Incentive Plan and based on the
exercise price of such stock options. Upon cancellation, expiration,
forfeiture or other termination or settlement of such stock options (or
portions thereof) without a delivery of shares of Common Stock or upon
tender of shares of Common Stock to the Registrant in connection with the
exercise of such stock options, new stock options or other stock awards
may be granted at varying exercise prices under the Del Monte Foods
Company 1998 Stock Incentive Plan with respect to the shares of Common
Stock underlying such terminated stock options (or portions thereof) or
tendered in connection with such stock options.
(3) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act, with respect to shares
of Common Stock issuable pursuant to stock options or other stock awards
not yet granted under the Del Monte Foods Company Directors' Fee Plan and
the Del Monte Foods Company 1998 Stock Incentive Plan and based on the
average of the high and low sales prices on May 24, 1999 of a share of
Common Stock as reported on the New York Stock Exchange.
<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 Registrant's Prospectus dated February 4, 1999 filed pursuant to
Rule 424(b) of the Securities Act with respect to Post-Effective Amendment No. 2
to the Registration Statement on Form S-1 (No. 333-48235) filed by the
Registrant under the Securities Act with the Securities and Exchange Commission
(the "Commission") on January 19, 1999 (the "Registrant's Form S-1"),
(ii) the Registrant's Quarterly Report on Form 10-Q for the Quarter ended
September 30, 1998,
(iii) the Registrant's Quarterly Report on Form 10-Q for the Quarter ended
December 31, 1998,
(iv) the Registrant's Quarterly Report on Form 10-Q for the Quarter ended
March 31, 1999,
(v) the description of the Common Stock of the Registrant is contained
under the caption "Description of Capital Stock" in the Prospectus dated
February 4, 1999 filed pursuant to Rule 424(b) of the Securities Act with
respect to the Registrant's Form S-1 and incorporated by reference to the
Registration Statement on Form 8-A filed by the Registrant under the Exchange
Act with the Commission on July 23, 1998, and
(vi) all documents filed by the Registrant 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 the
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.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Certificate of Incorporation of the Registrant provides that the
Registrant will indemnify each of its directors and officers to the fullest
extent permitted by the General Corporation Law of the State of Delaware (the
"DGCL") and may indemnify certain other persons as authorized by the DGCL.
Section 145 of the DGCL provides as follows:
145 INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS; INSURANCE. --
(a) A corporation shall have power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(b) A corporation shall have power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the present or
former director, officer, employee or agent is proper in the circumstances
because the person has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made, with
respect to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (4)
by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or director
in defending any civil, criminal, administrative or investigative action, suit
or proceeding may be paid by the corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately
be determined that such person is not entitled to be indemnified by the
corporation as authorized in this section. Such expenses (including attorneys'
fees) incurred by former directors and officers or other employees and agents
may be so paid upon such terms and conditions, if any, as the corporation deems
appropriate.
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this section shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person in any such capacity or arising out of such person's status as such
whether or not the corporation would have the power to indemnify such person
against such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or granted
pursuant to, this section shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to
hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees).
The Del Monte Foods Company Directors' Fee Plan, the Del Monte Foods
Company Non-Employee Director and Independent Contractor 1997 Stock Incentive
Plan and the Del Monte Foods Company 1998 Stock Incentive Plan each provide that
no member of the Registrant's Board of Directors nor any committee thereof shall
be liable for any action or determination made in good faith with respect to
such plan. The Del Monte Foods Company Directors' Fee Plan further provides that
each such person shall be indemnified to the maximum extent permitted by
applicable law and the Registrant's Certificate of Incorporation.
The Registrant also carries liability insurance covering officers and
directors.
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 Directors' Fee Plan
4.2 Del Monte Foods Company Non-Employee Director and Independent
Contractor 1997 Stock Incentive Plan
4.3 Del Monte Foods Company 1998 Stock Incentive Plan
4.4 Certificate of Incorporation of Del Monte Foods Company (filed as
Exhibit 3.1 to the Registrant's Form S-1 and incorporated by reference herein)
4.5 Amended and Restated Bylaws of Del Monte Foods Company (filed as
Exhibit 3(ii) to the Registrant's Quarterly Report on Form 10-Q for the Quarter
ended March 31, 1999 (SEC File No. 001-14335) and incorporated by reference
herein)
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 Independent Auditors
23.4 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 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Francisco, State of California, on this 24th
day of May, 1999.
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 May 24, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Richard G. Wolford Chief Executive Officer (Principal Executive Officer); Director
- ---------------------------------
Richard G. Wolford
/s/ David L. Meyers Executive Vice President, Administration and Chief Financial
- --------------------------------- Officer (Principal Financial Officer)
David L. Meyers
/s/ Richard L. French Senior Vice President and Chief Accounting Officer (Principal
- --------------------------------- Accounting Officer)
Richard L. French
/s/ Richard W. Boyce Chairman of the Board; Director
- ---------------------------------
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 M. O'Leary Director
- ---------------------------------
Denise M. 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
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially Numbered
Exhibit No. Description Method of Filing Page Location
- ----------- ----------- ---------------- -------------
<S> <C> <C> <C>
4.1 Del Monte Foods Company Filed herewith 12
Directors' Fee Plan
4.2 Del Monte Foods Company Filed herewith 19
Non-Employee Director and
Independent Contractor 1997
Stock Incentive Plan
4.3 Del Monte Foods Company Filed herewith 30
1998 Stock Incentive Plan
4.4 Certificate of Incorporation Filed as Exhibit 3.1 to --
of Del Monte the Registrant's
Foods Company Form S-1
and incorporated
herein by reference
4.5 Amended and Restated Filed as Exhibit --
Bylaws of Del Monte 3(ii) to the Registrant's
Foods Company Quarterly Report on
Form 10-Q for the
Quarter ended
March 31, 1999 (SEC
File No. 001-14335) and
incorporated herein by reference
5.1 Opinion of Cleary, Gottlieb, Filed herewith 48
Steen & Hamilton regarding
the validity of securities
being registered
23.1 Consent of Independent Filed herewith 50
Auditors
23.2 Consent of Independent Filed herewith 51
Auditors
23.3 Consent of Independent Filed herewith 52
Auditors
23.4 Consent of Cleary, Gottlieb, Filed herewith 48
Steen & Hamilton (included
in Exhibit 5.1)
24.1 Power of Attorney (included Filed herewith 9
on signature page)
</TABLE>
Exhibit 4.1
DEL MONTE FOODS COMPANY
DIRECTORS' FEE PLAN
1. Purpose
The purpose of this Del Monte Foods Company Directors' Fee Plan (the
"Plan"), is to enable Del Monte Foods Company (the "Company") to give each
member of the Board who is not also an employee of the Company or an affiliate
of the Texas Pacific Group the opportunity to receive all or a portion of the
fees payable to him by reason of his membership on the Board or any committee
thereof in shares of Common Stock of the Company. This Plan hereby amends and
restates the resolutions adopted by the Nominating and Compensation Committee of
the Board, dated February 24, 1998, providing for the election by certain
directors of stock in lieu of cash for directors' fees (the "Resolutions").
2. Definitions
Unless the context requires otherwise, the following words as used in the
Plan shall have the meanings ascribed to each below, it being understood that
masculine, feminine and neuter pronouns are used interchangeably, and that each
comprehends the others.
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Common Stock" shall mean the common stock of the Company, $.01 par
value per share.
(c) "Eligible Director" shall mean a director of the Company who is not
also an employee of the Company or an affiliate of Texas Pacific Group.
(d) "Fair Market Value," as of any date, shall mean the value of a Share on
such date, determined as follows: (i) the average of the closing prices, as
reported on the principal securities exchange on which Shares are then listed or
admitted to trading, for the ten (10) trading days immediately preceding such
date (which ten (10) days shall include the date of determination if it is a day
on which said principal securities exchange is open for trading), or (ii) if not
so reported, the average of the closing prices for such ten (10) day period as
reported on the National Association of Securities Dealers Automated Quotation
System or (iii) if not so reported, the average of the closing prices for such
ten (10) day period as furnished by any member of the National Association of
Securities Dealers, Inc. selected by the Board. In the event that the price of a
Share shall not be so reported or furnished, the value thereof shall be
determined by the Board in good faith to reflect the fair market value of a
Share.
(e) "Fees" shall mean the fees payable to a director by reason of his
membership on the Board and by reason of his attendance at meetings of a Board
committee of which he is a member.
(f) "Share" shall mean a share of Common Stock.
3. Effective Date
The effective date of the Plan shall be April 22, 1999; provided that, with
respect to elections made by Eligible Directors with respect to the Company's
fiscal year ending June 30, 1999, such elections and the issuance of Shares
thereunder shall continue to be governed by the terms of the Resolutions.
4. Administration
(a) Except as otherwise set forth herein, this Plan shall be administered
by the Board. The Board may delegate its powers and functions hereunder to a
duly appointed committee of the Board.
(b) Except as otherwise set forth herein, the Board shall have full
authority to interpret this Plan; to establish, amend and rescind rules for
carrying out this Plan; to administer this Plan; to construe this Plan; and to
make all other determinations and to take such steps in connection with this
Plan and the Shares as the Board, in its discretion, deems necessary or
desirable for administering this Plan. Each determination, interpretation or
other action made or taken pursuant to the provisions of this Plan by the Board
shall be final and binding for all purposes and upon all persons, including,
without limitation, the Company, the directors, officers and other employees of
the Company, the Eligible Directors and their respective heirs, executors,
administrators, personal representatives and other successors in interest.
(c) The Board may designate the Secretary of the Company, other employees
of the Company or competent professional advisors to assist the Board in the
administration of this Plan and may grant authority to such persons to execute
documents on its behalf.
(d) The Board may employ such legal counsel, consultants and agents as it
may deem desirable for the administration of this Plan, and may rely upon any
opinion received from any such counsel or consultant and any computation
received from any such consultant or agent. No member or former member of the
Board, any committee thereof or any person designated pursuant to paragraph (c)
above shall be liable for any action or determination made in good faith with
respect to this Plan. To the maximum extent permitted by applicable law and the
Company's Certificate of Incorporation and Bylaws, each member or former member
of the Board, any committee thereof or any person designated pursuant to
paragraph (c) above shall be indemnified and held harmless by the Company
against any cost or expense (including counsel fees) or liability (including any
sum paid in settlement of a claim with the approval of the Company) arising out
of any act or omission to act in connection with this Plan unless arising out of
such person's own fraud or bad faith. Such indemnification shall be in addition
to any rights of indemnification the person may have as a director, officer or
employee or under the Certificate of Incorporation or the Bylaws of the Company.
Expenses incurred by the Board in the engagement of any such counsel, consultant
or agent shall be paid by the Company.
5. Shares; Adjustment Upon Certain Events
(a) Shares to be issued under this Plan shall be made available, at the
discretion of the Board, either from authorized but unissued Shares or from
treasury Shares.
(b) The aggregate number of Shares that may be issued under this Plan shall
not exceed 250,000 Shares, except as provided in this Section 5.
(c) The existence of this Plan and the Shares awarded hereunder shall not
affect in any way the right or power of the Board or the stockholders of the
Company to make or authorize any adjustment, recapitalization, reorganization or
other change in the Company's capital structure or its business, any merger or
consolidation of the Company, any issue of bonds, debentures, preferred or prior
preference stocks ahead of or affecting Common Stock, the dissolution or
liquidation of the Company or any sale or transfer of all or part of its assets
or business, or any other corporate act or proceeding.
(d) The Shares awarded under Section 6 are Shares of Common Stock as
presently constituted, but if and whenever the Company shall effect a
subdivision, recapitalization or consolidation of Shares, the payment of a stock
dividend on Shares or any other increase or decrease in the number of Shares,
the aggregate number and kind of shares of capital stock issuable under the Plan
shall be proportionately adjusted by the Board, and the Board may make any other
adjustments under the Plan, as it may deem necessary or appropriate.
6. Share Elections
(a) Pursuant to this Plan, each Eligible Director may elect to receive all
or a portion of his Fees with respect to a fiscal year of the Company in which
he serves as a director in Shares. Such election shall be made, with respect to
each such fiscal year, in writing by submission of an election form
substantially in the form attached to this Plan as Exhibit A not later than the
last business day of the immediately preceding fiscal year (unless such date is
extended by the Board); provided, that any Eligible Director not serving on the
Board prior to April 22, 1999, may, at any time within thirty (30) days of his
original election to the Board, make an irrevocable election with respect to
Fees not yet paid, effective for the then current fiscal year. Any election made
by an Eligible Director under this Section 6 shall be irrevocable. An Eligible
Director who fails to make any election shall be deemed to have elected to
receive his Fees solely in cash.
(b) With respect to any fiscal year of the Company with respect to which an
Eligible Director has made an election pursuant to this Plan, the number of
Shares to be awarded to such Eligible Director with respect to each quarter of
such fiscal year shall be determined by dividing the portion of the total Fees
earned by such Eligible Director for such fiscal quarter which such Eligible
Director has elected to receive in the form of Shares by the Fair Market Value
of a Share as of the last day of such fiscal quarter.
(c) No fractional Shares will be issued. If the calculation of the number
of Shares to be awarded to an Eligible Director would result in the issuance of
a fractional Share, in lieu thereof the Company will make a cash payment to such
Eligible Director equal to the same fraction of the Fair Market Value of a Share
used in such calculation.
(d) Shares will be distributed quarterly to each Eligible Director entitled
to receive Shares pursuant to this Plan.
(e) If an Eligible Director's membership on the Board is terminated for any
reason, Fees payable in Shares pursuant to this Plan will be treated in the same
manner as Fees payable in cash under applicable Company policies, provided that
the number of Shares awarded will be calculated in accordance with paragraph (b)
above.
7. Termination, Amendment and Modification
This Plan shall terminate at the close of business on April 22, 2009,
unless sooner terminated by the Board, and no Shares shall be issued under this
Plan thereafter. The Board at any time or from time to time may amend this Plan
to effect (a) amendments necessary or desirable in order that this Plan shall
conform to all other applicable laws and regulations and (b) any other
amendments deemed appropriate. Notwithstanding the foregoing, the Board may not
effect any amendment that would require the approval of the stockholders of the
Company under the listing requirements of the New York Stock Exchange or any
other national securities exchange (if applicable to the Company at the time
such amendment is adopted or will be effective) unless such approval is
obtained. Except as required by law, no termination, amendment or modification
of this Plan may, without the consent of a Eligible Director, alter or impair
his rights pursuant to any election made under the Plan.
8. Non-Exclusivity
The adoption of this Plan by the Board shall not be construed as creating
any limitations on the power of the Board to adopt such other incentive
arrangements as it may deem desirable, including, without limitation, the
granting or issuance of stock options, Shares and/or other incentives otherwise
than under this Plan, and such arrangements may be either generally applicable
or applicable only in specific instances.
9. General Provisions
(a) This Plan shall not impose any obligations on the Company to retain any
Eligible Director as a director nor shall it impose any obligation on the part
of any Eligible Director to remain as a director of the Company.
(b) Nothing contained in this Plan and no action taken pursuant to this
Plan shall create or be construed to create a trust of any kind or any fiduciary
relationship between the Company and any Eligible Director, the executor,
administrator or other personal representative or designated beneficiary of such
Eligible Director, or any other persons. Any reserves that may be established by
the Company in connection with this Plan shall continue to be part of the
general funds of the Company, and no individual or entity other than the Company
shall have any interest in such funds until paid to a Eligible Director. To the
extent that any Eligible Director or his executor, administrator, or other
personal representative, as the case may be, acquires a right to receive any
payment from the Company pursuant to this Plan, such right shall be no greater
than the right of an unsecured general creditor of the Company.
10. Issuance of Stock Certificates, Legends and Payment of Expenses
(a) Upon the issuance of Shares pursuant to Section 6, a certificate or
certificates for the Shares shall be issued by the Company in the name of the
person or persons receiving such Shares and shall be delivered to or upon the
order of such person or persons.
(b) Certificates for Shares issued pursuant to Section 6 shall bear such
legend or legends as the Board, in its discretion, determines to be necessary or
appropriate to prevent a violation of, or to perfect an exemption from, the
registration requirements of the Securities Act of 1933, as amended, or to
implement the provisions of any agreements between the Company and the Eligible
Director with respect to such Shares.
(c) The Company shall pay all issue or transfer taxes with respect to the
issuance of Shares hereunder, as well as all fees and expenses necessarily
incurred by the Company in connection with such issuance and with the
administration of this Plan.
11. Listing of Shares and Related Matters
If at any time the Board shall determine in its discretion that the
listing, registration or qualification of the Shares covered by this Plan upon
any national securities exchange or under any state or federal law, or the
consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the issuance of Shares under
this Plan, no Shares will be delivered unless and until such listing,
registration, qualification, consent or approval shall have been effected or
obtained, or otherwise provided for, free of any conditions not acceptable to
the Board.
12. Notices
Each Eligible Director shall be responsible for furnishing the Board with
the current and proper address for the mailing of notices and delivery of
Shares. Any notices required or permitted to be given shall be deemed given if
directed to the person to whom addressed at such address and mailed by regular
United States mail, first-class and prepaid. If any item mailed to such address
is returned as undeliverable to the addressee, mailing will be suspended until
the Eligible Director furnishes the proper address.
13. Headings and Captions
The headings and captions herein are provided for reference and convenience
only, shall not be considered part of this Plan, and shall not be employed in
the construction of this Plan.
14. Applicable Law
This Plan will be administered in accordance with the laws of the State of
California, without reference to its principles of conflicts of law.
<PAGE>
EXHIBIT A
DEL MONTE FOODS COMPANY
DIRECTORS' FEE PLAN
ELECTION FORM
Pursuant to the Del Monte Foods Company Directors' Fee Plan (the "Plan"),
the undersigned hereby elects as follows (capitalized terms used but not defined
herein are used as defined in the Plan):
I elect to receive _____% of the Fees payable to me with respect to each
quarter of fiscal year ______ of the Company in shares of common stock of the
Company, par value $.01 per share ("Shares"). I understand that any remaining
Fees with respect to each quarter of such fiscal year will be paid to me in
cash, including cash in lieu of any fractional Shares.
I understand that the number of Shares I will receive pursuant to this
election will be determined based on the Fair Market Value of a Share on the
last day of the fiscal quarter with respect to which such Fees are being paid.
I understand that in order to be effective this election must be filed with
the Company not later than the last business day of the fiscal year immediately
preceding the fiscal year of the Company to which this election relates and that
otherwise I will receive my Fees solely in cash. I understand that this election
is irrevocable.
I acknowledge that I have received a copy of the Plan, that I have read and
understood the terms of the Plan and that I agree to be governed thereby.
Executed this _____ day of ____________, 19__.
- ----------------------------------
Signature
Exhibit 4.2
DEL MONTE FOODS COMPANY
NON-EMPLOYEE DIRECTOR AND INDEPENDENT CONTRACTOR
1997 STOCK INCENTIVE PLAN
AS ADOPTED FEBRUARY 24, 1998
<PAGE>
1. Purpose of the Plan
This Del Monte Foods Company Non-Employee Director and Independent
Contractor 1997 Stock Incentive Plan is intended to promote the interests of the
Company by providing certain non-employee directors and independent contractors
of the Company with incentives and rewards to encourage them to continue as
service providers to 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 Board of Directors of the Board of Directors as may be designated by the
Board of Directors.
(b) "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 "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.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
(d) "Common Stock" shall mean common stock of Del Monte, $.01 par value per
share.
(e) "Company" shall mean Del Monte and its subsidiaries.
(f) "Del Monte" shall mean Del Monte Foods Company, a Maryland corporation.
(g) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(h) "Option" shall mean an option to purchase shares of Common Stock
granted pursuant to Section 6 hereof.
(i) "Participant" shall mean a person 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.
(j) "Plan" shall mean this Del Monte Foods Company Non-Employee Director
and Independent Contractor 1997 Stock Incentive Plan, as it may be amended from
time to time.
(k) 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).
(l) "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 Board of
Directors may grant Options to Participants with respect to 792 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 Board of Directors.
4. Administration of the Plan
The Plan shall be administered by the Board of Directors. The Board of
Directors shall from time to time designate the persons 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.
The Board of Directors 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 Board of
Directors 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 Board of Directors with respect to the Plan shall be subject to
the absolute discretion of the Board of Directors. No member of the Board of
Directors shall be liable to any Participant for any action, omission, or
determination relating to the Plan.
5. Eligibility
The persons who shall be eligible to receive Options pursuant to the Plan
shall be such non-employee directors of the Company and independent contractors
retained by the Company as the Board of Directors 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. 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.
(b) Exercise Price
The exercise price per share of each Option shall be such price as the
Board of Directors shall determine at the time at which the Option is granted.
<PAGE>
(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
Board of Directors 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 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 Membership on Board; Independent Contractor
Status
(1) In the event of the termination of the membership of a Participant on
the Board of Directors for any reason at any time other than 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 of the termination of membership of a
Participant on the Board of Directors on account of the 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.
The agreement evidencing the grant of an Option to any person who is not a
member of the Board of Directors shall include such terms and conditions as the
Board of Directors deems appropriate concerning the termination of the Option
prior to 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 B, 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 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 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) 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.
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 Board of Directors 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 Board of Directors 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 Board of Directors 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 Board of
Directors 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 Board of Directors 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 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 C or,
in the case of a Participant who is not a member of the Board of Directors, an
agreement in such form as the Board of Directors deems appropriate.
9. No Special 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 relationship with
the company or interfere in any way with the right of the Company at any time to
terminate such relationship.
(b) No person shall have any claim or right to receive an Option hereunder.
The Board of Directors's granting of an Option to a Participant at any time
shall neither require the Board of Directors to grant an Option to such
Participant or any other Participant or other person at any time nor preclude
the Board of Directors 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 Board of
Directors 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 Board of
Directors deems necessary or desirable.
(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 Board of Directors 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. 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.
12. 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
Board of Directors shall have been furnished with (a) written notice thereof and
with a copy of the will and/or such evidence as the Board of Directors 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.
13. No Obligation to Exercise
The grant to a Participant of an Option shall impose no obligation upon
such Participant to exercise such Option.
14. 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.
l5. 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 Board of Directors, shall be grounds for
the cancellation and forfeiture of such Option, in whole or in part, as the
Board of Directors, in its absolute discretion, may determine.
16. 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.
Exhibit 4.3
DEL MONTE FOODS COMPANY
1998 STOCK INCENTIVE PLAN,
AS AMENDED SEPTEMBER 23, 1998
<PAGE>
1. Purpose of the Plan
This Del Monte Foods Company 1998 Stock Incentive Plan is intended to
promote the interests of the Company by encouraging the Company's employees,
nonemployee directors and consultants of the Company to continue in the service
of the Company, and to provide such persons with incentives and rewards for
superior management, growth and protection of the business 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.
(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 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) "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
(d) "Committee" shall mean the Compensation Subcommittee of the Board of
Directors or such other committee as the Board of Directors shall appoint from
time to time to administer the Plan.
(e) "Common Stock" shall mean Del Monte's common stock, $0.01 par value per
share.
(f) "Company" shall mean Del Monte and each of its Subsidiaries.
(g) "Consultant" shall mean any consultant, independent contractor, or
other person who provides significant services to the Company, but who is
neither an Employee nor a Director.
(h) "Director" shall mean a member of the Board of Directors, whether or
not such individual also is an Employee.
(i) "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(i),
"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.
(j) "Employee" shall mean any employee of the Company, whether such
employee is so employed at the time the Plan is adopted or becomes so employed
subsequent to the adoption of the Plan.
(k) the "Fair Market Value" of a share of Common Stock with respect to any
day shall be (i) the average of the high and low sales prices on such day of a
share of Common Stock as reported on the principal securities exchange on which
shares of Common Stock are then listed or admitted to trading or (ii) if not so
reported, the average of the closing bid and ask prices on such day as reported
on the National Association of Securities Dealers Automated Quotation System or
(iii) if not so reported, as furnished by any member of the National Association
of Securities Dealers, Inc. selected by the Committee. In the event that the
price of a share of Common Stock shall not be so reported, the Fair Market Value
of a share of Common Stock shall be determined by the Committee in its absolute
discretion.
(l) "Incentive Award" shall mean an Option, Tandem SAR, Stand-Alone SAR or
Stock Bonus granted pursuant to the terms of the Plan.
(m) "Incentive Stock Option" shall mean an Option which is an "incentive
stock option" within the meaning of Section 422 of the Code and which is
identified as an Incentive Stock Option in the agreement by which it is
evidenced.
(n) "Non-Qualified Stock Option" shall mean an Option which is not an
Incentive Stock Option and which is identified as a Non-Qualified Stock Option
in the agreement by which it is evidenced.
(o) "Del Monte" shall mean Del Monte Foods Company, a Delaware corporation,
and its successors.
(p) "Option" shall mean an option to purchase shares of Common Stock of Del
Monte granted pursuant to Section 6 hereof. Each Option shall be identified as
either an Incentive Stock Option or a Non-Qualified Stock Option in the
agreement by which it is evidenced.
(q) "Participant" shall mean an Employee, Director or Consultant to whom an
Incentive Award is granted pursuant to the Plan, and upon his death, his
successors, heirs, executors and administrators, as the case may be.
(r) "Plan" shall mean this Del Monte Foods Company 1998 Stock Incentive
Plan, as it may be amended from time to time.
(s) "Rule 16b-3" shall mean Rule 16b-3 promulgated under the Securities
Exchange Act of 1934, as amended, and any future regulation amending,
supplementing or superseding such regulation.
(t) "Section 16 Person" shall mean a person who, with respect to the Common
Stock, is subject to Section 16 of the Securities Exchange Act of 1934, as
amended.
(u) "Stand-Alone SAR" shall mean a stock appreciation right granted
pursuant to Section 8 hereof which is not related to any Option.
(v) "Stock Bonus" shall mean a grant of a bonus payable in shares of Common
Stock pursuant to Section 9 hereof.
(w) "Subsidiary" shall mean any "subsidiary corporation" within the meaning
of Section 424(f) of the Code.
(x) "Tandem SAR" shall mean a stock appreciation right granted pursuant to
Section 7 hereof which is related to an Option. Each Tandem SAR shall be
exercisable only to the extent its related Option is exercisable and only in the
alternative to the exercise of its related Option.
(y) "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 Securities Exchange Act of 1934, as amended (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 "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 was previously so approved or who
were nominated by, or designees of TPG or its Affiliates.
For purposes of this Section 2(y), "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.
(z) 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 of 1933, as amended) or any designated
offshore securities market (within the meaning of Rule 902(a) of the Securities
Act of 1933, as amended).
3. Stock Subject to the Plan
(a) Maximum Shares Available for Delivery. Subject to 10 hereof, the
maximum number of shares of Common Stock that may be delivered to Participants
and their beneficiaries under the Plan shall be equal to the sum of (i)
3,195,687, and (ii) any shares of Common Stock that are represented by awards
granted under any prior plan of the Company, which are forfeited, expire or are
canceled without the delivery of shares of Common Stock or which result in the
forfeiture of shares of Common Stock back to the Company; provided, however,
that in no event shall such maximum number of shares of Common Stock exceed a
number of shares which is equal to 30% of the then outstanding shares of Del
Monte (any convertible preferred or convertible senior common shares of Del
Monte will be counted as if on a converted basis). In addition, any shares of
Common Stock granted under the Plan which are forfeited back to the Company
because of the failure to meet an Incentive Award contingency or condition shall
again be available for delivery pursuant to new Incentive Awards granted under
the Plan. Any shares of Common Stock covered by an Incentive Award (or portion
of an Incentive Award) granted under the Plan, which is forfeited or canceled,
expires or is settled in cash, including the settlement of tax withholding
obligations using shares of Common Stock, shall be deemed not to have been
delivered for purposes of determining the maximum number of shares of Common
Stock available for delivery under the respective plan. Likewise, if any Option
is exercised by tendering shares of Common Stock, either actually or by
attestation, to the Company as full or partial payment for such exercise under
this Plan or any prior plan of the Company, only the number of shares of Common
Stock issued net of the shares of Common Stock tendered shall be deemed
delivered for purposes of determining the maximum number of shares of Common
Stock available for delivery under the Plan. Further, shares of Common Stock
issued under the Plan through the settlement, assumption or substitution of
outstanding Incentive Awards or obligations to grant future Incentive Awards as
a condition of the Company acquiring another entity shall not reduce the maximum
number of shares of Common Stock available for delivery 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.
(b) Payment Shares. Subject to the overall limitation on the number of
shares of Common Stock that may be delivered under the Plan, the Committee may,
in addition to granting Incentive Awards under Section 4, use available shares
of Common Stock as the form of payment for compensation, grants or rights earned
or due under any other compensation plans or arrangements of the Company,
including those of any entity acquired by the Company.
4. Administration of the Plan
The Plan shall be administered by a Committee of the Board of Directors
consisting of two or more persons, each of whom shall be a "nonemployee
director" within the meaning of Rule 16b-3, unless otherwise determined by the
Board of Directors. The Committee shall from time to time designate the key
employees of the Company who shall be granted Incentive Awards and the amount
and type of such Incentive Awards.
The Committee shall have full discretionary authority to administer the
Plan, including authority to interpret and construe any provision of the Plan
and the terms of any Incentive Award issued under it and to adopt such rules and
regulations for administering the Plan as it may deem necessary. The Committee,
in its sole discretion and on such terms and conditions as it may provide, may
delegate all or any part of its authority and powers under the Plan to one or
more Directors. Decisions of the Committee shall be final and binding on all
parties, and shall be given the maximum deference permitted by law.
The Committee may, in its absolute discretion, accelerate the date on which
any Option or Stand-Alone SAR granted under the Plan becomes exercisable or,
subject to Section 6(c)(1) hereof, extend the term of any Option or Stand-Alone
SAR granted under 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.
No member of the Committee shall be liable for any action, omission, or
determination relating to the Plan, and Del Monte 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 or expense
(including counsel fees) or liability (including any sum paid in settlement of a
claim with the approval of the Committee) 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
The persons who shall be eligible to receive Incentive Awards pursuant to
the Plan shall be such Employees, Directors and Consultants as the Committee
shall select from time to time.
6. Options
The Committee may grant Options pursuant to the Plan to Participants, which
Options shall be evidenced by agreements in such form as the Committee shall
from time to time approve. Options shall comply with and be subject to the
following terms and conditions:
(a) Identification of Options
All Options granted under the Plan shall be clearly identified in the
agreement evidencing such Options as either Incentive Stock Options or as
Non-Qualified Stock Options.
(b) Exercise Price
The exercise price of any Non-Qualified Stock Option granted under the Plan
shall be such price as the Committee shall determine on the date on which such
Non-Qualified Stock Option is granted and shall not be less than 85% of the Fair
Market Value of a share of Common Stock on the date on which such Non-Qualified
Stock Option is granted; provided, that the exercise price of any Non-Qualified
Stock Option granted to an individual, who at the time of the proposed grant
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 Subsidiaries, shall not be
less than 110% of the Fair Market Value of a share of Common Stock on the date
on which such Non-Qualified Stock Option is granted.
(c) Term and Exercise of Options
(1) 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
will be exercisable after the expiration of ten years from the date the Option
is granted; and provided, further, that each Option shall be subject to earlier
expiration, termination, cancellation or exercisability as provided in this
Plan. Subject to earlier termination of the Option as determined by the
Committee, each Participant who is not an officer, Director or Consultant of the
Company or of a Subsidiary shall have the right to exercise an Option at the
rate of at least twenty percent over five years from the date such Option is
granted.
(2) Each Option shall be exercisable in whole or in part, subject to the
provisions of the applicable Option agreement. The partial exercise of an Option
shall not cause the expiration, termination or cancellation of the remaining
portion thereof.
(3) An Option shall be exercised by delivering written notice to Del
Monte's principal office, to the attention of the office specified by Del Monte.
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. Payment for shares of Common
Stock purchased upon the exercise of an Option shall be made on the effective
date of such exercise in full in cash or its equivalent. The Committee, in its
sole discretion, also may permit exercise (i) by tendering previously acquired
shares of Common Stock having an aggregate Fair Market Value at the time of
exercise equal to the total exercise price, or (ii) by any other means which the
Committee, in its sole discretion, determines to both provide legal
consideration for the Common Stock, and to be consistent with the purposes of
the Plan. 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 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.
(4) Any Option granted under the Plan may be exercised by a broker-dealer
acting on behalf of a Participant if (i) the broker-dealer has received from the
Participant or Del Monte a fully- and duly-endorsed agreement evidencing such
Option and instructions signed by the Participant requesting Del Monte to
deliver the shares of Common Stock subject to such Option to the broker-dealer
on behalf of the Participant and specifying the account into which such shares
should be deposited, (ii) adequate provision has been made with respect to the
payment of any withholding taxes due upon such exercise or, in the case of an
Incentive Stock Option, the disposition of such shares and (iii) the
broker-dealer and the Participant have otherwise complied with Section
220.3(e)(4) of Regulation T, 12 CFR Part 220.
(5) Certificates for shares of Common Stock purchased upon the exercise of
an Option (which may be in book entry form) 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.
(6) During the lifetime of a Participant, each Option granted to him shall
be exercisable only by him. No Option shall be assignable or transferable other
than by will, the laws of descent and distribution, or to the limited extent
provided in Paragraph 17 hereof.
(7) Subject to earlier termination pursuant to Section 7(b)(2) and 10(d),
exercise of an Option shall always be subject to the following:
(i) 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.
(ii) 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
Disability or death of the Participant (A) 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 (B) 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.
(iii) In the event that the employment of a Participant with the Company
shall terminate on account of Disability or death of the Participant, (A)
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 (B)
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 the
business on the date of such termination; provided, however, that no Option
shall be exercisable after the expiration of its term.
(d) Limitations on Grant of Incentive Stock Options
(1) The aggregate Fair Market Value of shares of Common Stock with respect
to which "incentive stock options" (within the meaning of Section 422 of the
Code) are exercisable for the first time by a Participant during any calendar
year under the Plan and any other stock option plan of the Company (or any
"subsidiary" of Del Monte as such term is defined in Section 424 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 the
aggregate Fair Market Value of shares of Common Stock with respect to such
incentive stock options exceeds $100,000, then Incentive Stock Options granted
hereunder to such Participant shall, to the extent and in the order required by
regulations promulgated under the Code (or any other authority having the force
of regulations), automatically be deemed to be Non-Qualified Stock Options, but
all other terms and provisions of such Incentive Stock Options shall remain
unchanged. In the absence of such Regulations (and authority), or in the event
such Regulations (or authority) require or permit a designation of the options
which shall cease to constitute incentive stock options, Incentive Stock Options
shall, to the extent of such excess and in the order in which they were granted,
automatically be deemed to be Non-Qualified 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 "subsidiaries" (within the meaning of Section 424 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.
(3) Only Employees are eligible to be granted Incentive Stock Options.
Directors and Consultants are not eligible to be granted Incentive Stock
Options.
(e) Cash Bonuses and Loans
(1) The Committee may, in its absolute discretion, grant to any Participant
a cash bonus in an amount determined by the Committee to enable the Participant
to pay any federal, state or local income taxes arising out of the exercise of
an Option.
(2) The Committee may, in its absolute discretion, provide a loan to any
Participant in an amount determined by the Committee to enable the Participant
to pay (i) any federal, state or local income taxes arising out of the exercise
of an Option or (ii) the exercise price with respect to any Option. Any such
loan (i) shall be for such term and at such rate of interest as the Committee
may determine, (ii) shall be evidenced by a promissory note in a form determined
by the Committee and executed by the Participant and (iii) shall be subject to
such other terms and conditions as the Committee may determine.
(f) 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.
7. Tandem Stock Appreciation Rights
The Committee may grant in connection with any Option granted hereunder one
or more Tandem SARs relating to a number of shares of Common Stock less than or
equal to the number of shares of Common Stock subject to the related Option.
Notwithstanding anything herein to the contrary, no Tandem SARs shall be granted
prior to the existence of a Public Market for the Common Stock. A Tandem SAR may
be granted at the same time as, or subsequent to the time that, its related
Option is granted. Each Tandem SAR shall be evidenced by an agreement in such
form as the Committee shall from time to time approve. Tandem SARs shall comply
with and be subject to the following terms and conditions:
(a) Benefit Upon Exercise
The exercise of a Tandem SAR with respect to any number of shares of Common
Stock shall entitle a Participant to (i) a cash payment, for each such share,
equal to the excess of (A) the Fair Market Value of a share of Common Stock on
the effective date of such exercise over (B) the exercise price of the related
Option, (ii) the issuance or transfer to the Participant of a number of shares
of Common Stock which on the date of the exercise of the Tandem SAR have a Fair
Market Value equal to such excess or (iii) a combination of cash and shares of
Common Stock in amounts equal to such excess, all as determined by the Committee
in its discretion.
(b) Term and Exercise of Tandem SAR
(1) A Tandem SAR shall be exercisable at the same time and to the same
extent (on a proportional basis, with any fractional amount being rounded down
to the immediately preceding whole number) as its related Option.
(2) The exercise of a Tandem SAR with respect to a number of shares of
Common Stock shall cause the immediate and automatic cancellation of its related
Option with respect to an equal number of shares. The exercise of an Option, or
the cancellation, termination or expiration of an Option (other than pursuant to
this Paragraph (2)), with respect to a number of shares of Common Stock shall
cause the automatic and immediate cancellation of its related Tandem SARs to the
extent that the number of shares of Common Stock subject to such Option after
such exercise, cancellation, termination or expiration is less than the number
of shares subject to such Tandem SARs. Such Tandem SARs shall be cancelled in
the order in which they became exercisable.
(3) Each Tandem SAR shall be exercisable in whole or in part, as provided
in the applicable agreement. The partial exercise of a Tandem SAR shall not
cause the expiration, termination or cancellation of the remaining portion
thereof.
(4) During the lifetime of a Participant, each Tandem SAR granted to him
shall be exercisable only by him. No Tandem SAR shall be assignable or
transferable other than by will, the laws of descent and distribution, or as
provided in Paragraph 17 hereof and otherwise than together with its related
Option.
(5) A Tandem SAR shall be exercised by delivering written notice to Del
Monte's principal office, to the attention of the office specified by Del Monte.
Such notice shall specify the number of shares of Common Stock with respect to
which the Tandem SAR is being exercised and the effective date of the proposed
exercise and shall be signed by the Participant.
8. Stand-Alone Stock Appreciation Rights
The Committee may grant Stand-Alone SARs pursuant to the Plan, which
Stand-Alone SARs shall be evidenced by agreements in such form as the Committee
shall from time to time approve. Notwithstanding anything herein to the
contrary, no Stand-Alone SARs shall be granted prior to the existence of a
Public Market for the Common Stock. Stand-Alone SARs shall comply with and be
subject to the following terms and conditions:
(a) Exercise Price
The exercise price of any Stand-Alone SAR granted under the Plan shall be
determined by the Committee at the time of the grant of such Stand-Alone SAR.
(b) Benefit Upon Exercise
The exercise of a Stand-Alone SAR with respect to any number of shares of
Common Stock shall entitle a Participant to (i) a cash payment, for each such
share, equal to the excess of (A) the Fair Market Value of a share of Common
Stock on the effective date of such exercise over (B) the exercise price of the
Stand-Alone SAR, (ii) the issuance or transfer to the Participant of a number of
shares of Common Stock which on the date of the exercise of the Stand-Alone SAR
have a Fair Market Value equal to such excess or (iii) a combination of cash and
shares of Common Stock in amounts equal to such excess, all as determined by the
Committee in its absolute discretion.
(c) Term and Exercise of Stand-Alone SARs
(1) Each Stand-Alone SAR 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 and set forth in the Stand-Alone SAR agreement with respect to
such Stand-Alone SAR. Each Stand-Alone SAR shall be subject to such termination,
expiration or cancellation provisions as provided in the agreement evidencing
such Stand-Alone SAR.
(2) Each Stand-Alone SAR may be exercised in whole or in part, as provided
in the applicable agreement. The partial exercise of a Stand-Alone SAR shall not
cause the expiration, termination or cancellation of the remaining portion
thereof.
(3) A Stand-Alone SAR shall be exercised by delivering written notice to
Del Monte's principal office, to the attention of the office designated by Del
Monte. Such notice shall specify the number of shares of Common Stock with
respect to which the Stand-Alone SAR is being exercised and the effective date
of the proposed exercise and shall be signed by the Participant.
(4) During the lifetime of a Participant, each Stand-Alone SAR granted to
him shall be exercisable only by him. No Stand-Alone SAR shall be assignable or
transferable otherwise than by will, the laws of descent and distribution, or to
the limited extent provided in Paragraph 17 hereof.
9. Stock Bonuses
The Committee may grant Stock Bonuses in such amounts as it shall determine
from time to time. A Stock Bonus shall be paid at such time and subject to such
conditions as the Committee shall determine at the time of the grant of such
Stock Bonus. Notwithstanding anything herein to the contrary, no Stock Bonus
shall be granted prior to the existence of a Public Market for the Common Stock.
Certificates for shares of Common Stock granted as a Stock
Bonus shall be issued in the name of the Participant to whom such grant was
made and delivered to such Participant as soon as practicable after the date on
which such Stock Bonus is required to be paid.
10. Adjustment Upon Changes in Common Stock
(a) Shares Available for Grants
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 with respect to which the
Committee may grant Options, Stand-Alone SARs and Stock Bonuses 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 with respect to which Options,
Stand-Alone SARs and Stock Bonuses may be granted as the Committee may deem
appropriate.
(b) Outstanding Options, Tandem SARs and Stand-Alone SARs - Increase or
Decrease in Issued Shares Without Consideration
Subject to any required action by the stockholders 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 without receipt
or payment of consideration by Del Monte, the Committee shall proportionally
adjust the number of shares of Common Stock subject to each outstanding Option,
Tandem SAR and Stand-Alone SAR and the exercise price per share of Common Stock
of each such Option, Tandem SAR and Stand-Alone SAR.
(c) Outstanding Options, Tandem SARs and Stand-Alone SARs - Certain
Mergers
Subject to any required action by the stockholders 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, Tandem SAR and Stand-Alone SAR 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, Tandem SAR or
Stand-Alone SAR would have received in such merger or consolidation.
(d) Outstanding Options, Tandem SARs and Stand-Alone SARs - Certain Other
Transactions
In the event of (i) a dissolution or liquidation of Del Monte, (ii) a sale
of all or substantially all of Del Monte's assets, (iii) a sale of all or a
substantial portion of the Common Stock held by TPG, (iv) a merger or
consolidation involving Del Monte in which Del Monte is not the surviving
corporation or (iv) 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,
the Committee shall, in its absolute discretion, have the power to:
(i) cancel, effective immediately prior to the occurrence of such event,
each Option (including each Tandem-SAR related thereto) and Stand-Alone SAR
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 or Stand-Alone SAR was granted an amount in cash, for each share of
Common Stock subject to such Option or Stand-Alone SAR, respectively, equal to
the excess of (A) the value, as determined by the Committee in its absolute
discretion, 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 Stand-Alone SAR; or
(ii) permit Participants to exercise their Options (or Tandem SARs related
thereto) and Stand-Alone SARs and participate in such transaction on a basis no
less favorable than that afforded other owners of Common Stock.
(e) Outstanding Options, Tandem SARs and Stand-Alone SARs - Other Changes
In the event of any change in the capitalization of Del Monte or corporate
change other than those specifically referred to in Sections 10(b), (c) or (d)
hereof, the Committee may, in its absolute discretion, make such adjustments in
the number and class of shares subject to Options, Tandem SARs and Stand-Alone
SARs outstanding on the date on which such change occurs and in the per share
exercise price of each such Option, Tandem SAR and Stand-Alone SAR as the
Committee may consider appropriate to prevent dilution or enlargement of rights.
(f) No Other Rights
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 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 Incentive Award or the exercise price of
any Option, Tandem SAR or Stand-Alone SAR.
11. 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 Incentive Award granted
pursuant to this Plan until the date of the issuance of a stock certificate with
respect to such shares. Except as otherwise expressly provided in Section 10
hereof, no adjustment to any Incentive Award shall be made for dividends or
other rights for which the record date occurs prior to the date such stock
certificate is issued.
(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 A. Del
Monte shall comply with Section 260.140.1 of Title 10 of the California Code of
Regulations with respect to the voting rights of Common Stock.
(c) Del Monte will provide financial statements to each Participant prior
to such Participant's purchase of shares of Common Stock under the Plan, and to
each Participant annually during the period such Participant has Options
outstanding, or as otherwise required under Section 260.140.46 of Title 10 of
the California Code of Regulations. Notwithstanding the foregoing, Del Monte
will not be required to provide such financial statements to Participants when
issuance is limited to key employees whose services in connection with Del Monte
assure them access to equivalent information.
12. No Special Employment Rights; No Right to Incentive Award
Nothing contained in the Plan or any Incentive Award 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, subject to the
terms of any separate employment agreement to the contrary, at any time to
terminate such employment or to increase or decrease the compensation of the
Participant from the rate in existence at the time of the grant of an Incentive
Award.
No person shall have any claim or right to receive an Incentive Award
hereunder. The Committee's granting of an Incentive Award to a Participant at
any time shall neither require the Committee to grant an Incentive Award 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.
13. Securities Matters
(a) Del Monte shall be under no obligation to effect the registration
pursuant to the Securities Act of 1933 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,
in its sole discretion, deems necessary or desirable.
(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 of 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.
14. Withholding Taxes
(a) Cash Remittance
Whenever shares of Common Stock are to be issued upon the exercise of an
Option or the grant of a Stock Bonus, Del Monte shall have the right to require
the Participant to remit to Del Monte 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 exercise of a Tandem SAR or Stand-Alone SAR, Del
Monte shall have the right to withhold from any cash payment required to be made
pursuant thereto an amount sufficient to satisfy the federal, state and local
withholding tax requirements, if any, attributable to such exercise.
(b) Stock Remittance
At the election of the Participant, subject to the approval of the
Committee, when shares of Common Stock are to be issued upon the exercise of an
Option or the grant of a Stock Bonus, the Participant may tender to Del Monte a
number of shares of Common Stock determined by such Participant, the Fair Market
Value of which at the tender date the Committee determines to be sufficient to
satisfy the federal, state and local withholding tax requirements, if any,
attributable to such exercise or grant and not greater than the Participant's
estimated total federal, state and local tax obligations associated with such
exercise or grant. Such election shall satisfy the Participant's obligations
under Paragraph 14(a) hereof. In the event that a Participant makes an election
pursuant to this Section 14(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.
(c) Stock Withholding
At the election of the Participant, subject to the approval of the
Committee, when shares of Common Stock are to be issued upon the exercise of an
Option or the grant of a Stock Bonus, Del Monte shall withhold a number of such
shares determined by such Participant, the Fair Market Value of which at the
exercise date the Committee determines to be sufficient to satisfy the federal,
state and local withholding tax requirements, if any, attributable to such
exercise or grant and is not greater than the Participant's estimated total
federal, state and local tax obligations associated with such exercise or grant.
Such election shall satisfy the Participant's obligations under Paragraph 14(a)
hereof.
15. Amendment of the Plan
The Board of Directors may at any time suspend or discontinue the Plan or
revise or amend it in any respect whatsoever; provided, however, that without
approval of the stockholders no revision or amendment shall except as provided
in Section 10 hereof, increase the number of shares of Common Stock that may be
issued under the Plan.
16. No Obligation to Exercise
The grant to a Participant of an Option, Tandem SAR or Stand-Alone SAR
shall impose no obligation upon such Participant to exercise such Option, Tandem
SAR or Stand-Alone SAR.
17. Transfers Upon Death
If permitted by the Committee, a Participant may name a beneficiary or
beneficiaries to whom any vested but unpaid Incentive Award shall be paid in the
event of the Participant's death. Each such designation shall revoke all prior
designations by the Participant and shall be effective only if given in a form
and manner acceptable to the Committee. In the absence of any such designation,
any vested benefits remaining unpaid at the Participant's death shall be paid to
the Participant's estate and, subject to the terms of the Plan and of the
applicable Incentive Award agreement, any unexercised vested Incentive Award may
be exercised by the administrator or executor of the Participant's estate. No
such transfer or distribution of any Incentive Award, or the right to exercise
any Incentive Award, shall be effective to bind Del Monte 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 Incentive Award 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 Incentive Award.
18. Expenses and Receipts
The expenses of the Plan shall be paid by Del Monte. Any proceeds received
by Del Monte in connection with any Incentive Award will be used for general
corporate purposes.
19. Failure to Comply
In addition to the remedies of Del Monte 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 Incentive
Award, unless such failure is remedied by such Participant within ten days after
having been notified of such failure by the Committee, shall be grounds for the
cancellation and forfeiture of such Incentive Award, in whole or in part, as the
Committee, in its absolute discretion, may determine.
20. Compliance with Rule 16b-3
Transactions under this Plan with respect to Section 16 Persons are
intended to comply with all applicable conditions of Rule 16b-3 under the
Securities Exchange Act of 1934, as amended. To the extent any provision of the
Plan, Incentive Award agreement or action by the Committee fails to so comply,
it shall be deemed null and void, to the extent permitted by law and deemed
advisable by the Committee.
21. 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.
22. Effective Date
The Plan shall commence on May 29, 1998 (the date of adoption of the Plan),
and subject to Paragraph 15 (regarding the Board's right to amend or terminate
the Plan), shall remain in effect thereafter. The Plan shall be approved by
stockholders of Del Monte within twelve months before or after the effective
date of the Plan. However, without further stockholder approval, no Incentive
Stock Option may be granted under the Plan after May 29, 2006.
Exhibit 5.1
[Letterhead of Cleary, Gottlieb, Steen & Hamilton]
Writer's Direct Dial: (212) 225-2920
May 26, 1999
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 Delaware 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 Non-Employee Director and
Independent Contractor 1997 Stock Incentive Plan, the Del Monte Foods Company
Directors' Fee Plan and the Del Monte Foods Company 1998 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 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
Exhibit 23.1
[Letterhead of KPMG LLP]
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Del Monte Foods Company
We consent to incorporation by reference in this registration statement on Form
S-8 of Del Monte Foods Company of our report dated July 24, 1998, relating to
the consolidated financial statements as of June 30, 1997 and 1998 and for each
of the years then ended, which report appears in the Registration Statement on
Form S-1 (No 333-48235), as amended.
/s/ KPMG LLP
San Francisco, California
May 24, 1999
Exhibit 23.2
[Letterhead of KPMG LLP]
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Del Monte Foods Company
We consent to the incorporation by reference in this registration statement on
Form S-8 of Del Monte Foods Company of our report dated March 16, 1998, with
respect to the combined balance sheets of Contadina (a division of Nestle USA,
Inc.) as of December 18, 1997 and December 31, 1996 and the related statements
of operations, divisional equity and cash flows for the period January 1, 1997
through December 18, 1997 and the year ended December 31, 1996, which report
appears in the Registration Statement on Form S-1 (No. 333-48235) of Del Monte
Foods Company as amended.
/s/ KPMG LLP
Los Angeles, California
May 24, 1999
Exhibit 23.3
Consent of Independent Auditors
We consent to the incorporation by reference in this Registration Statement
(Form S-8), pertaining to the Non-Employee Director and Independent Contractor
1997 Stock Incentive Plan, Directors' Fee Plan and 1998 Stock Incentive Plan of
Del Monte Foods Company, of our report dated August 29, 1996, except for Note R,
as to which the date is June 29, 1998 and the third paragraph of Note O, as to
which the date is July 22, 1998 with respect to the consolidated financial
statements of Del Monte Foods Company included in the Registration Statement on
Form S-1 (No. 333-48235) as amended.
/s/ Ernst & Young LLP
San Francisco, California
May 24, 1999
