Exhibit 9.1
EXECUTION COPY
VOTING AGREEMENT
This AGREEMENT, dated as of June 12, 2002, is made by and
among ▇. ▇. ▇▇▇▇▇ Company, a Pennsylvania corporation ("Heinz"), SKF Foods Inc.,
a Delaware corporation ("Spinco"), and each of the parties listed on the
signature page hereto (each a "Stockholder", and collectively, the
"Stockholders").
WHEREAS, Heinz, Spinco, Del Monte Foods Company, a Delaware
corporation ("Del Monte"), and Del Monte Corporation, a New York corporation and
a wholly-owned subsidiary of Del Monte ("Merger Sub"), propose to enter into an
Agreement and Plan of Merger, dated as of the date hereof (as amended in
accordance with its terms, the "Merger Agreement"; capitalized terms used but
not defined herein shall have the meanings set forth in the Merger Agreement)
providing for a merger of Merger Sub with and into Spinco, upon the terms and
subject to the conditions set forth in the Merger Agreement;
WHEREAS, each Stockholder owns, beneficially and of record,
the number of shares of Del Monte Common Stock set forth on Exhibit A hereto
(such shares of Del Monte Common Stock, together with any other shares of Del
Monte Common Stock of which such Stockholder acquires beneficial or record
ownership after the date hereof and during the term of this Agreement, whether
upon the exercise of options, warrants or rights, the conversion or exchange of
convertible or exchangeable securities, or by means of purchase, dividend,
distribution or otherwise, being collectively referred to herein as the "Subject
Shares");
WHEREAS, the Stockholders, Heinz and Spinco desire to enter
into this Agreement to provide for, among other things, (i) the obligation of
the Stockholders to vote their respective Subject Shares and any other shares of
Del Monte Common Stock which each Stockholder has the right to vote at the Del
Monte Stockholders Meeting (the "Voting Shares") to approve (A) the Share
Issuance and (B) the adoption of the Amended and Restated Certificate of
Incorporation and (ii) certain restrictions on the sale or other transfer of the
record ownership or the beneficial ownership, or both, of the Subject Shares by
the Stockholders until the termination of this Agreement; and
WHEREAS, as a condition to the willingness of Heinz and Spinco
to enter into the Merger Agreement, Heinz and Spinco have required that the
Stockholders enter into this Agreement.
NOW, THEREFORE, to induce Heinz and Spinco to enter into, and
in consideration of their entering into, the Merger Agreement, and in
consideration of the premises and the representations, warranties and agreements
contained herein, the parties agree as follows:
1. Covenants of the Stockholders. Until the termination of
this Agreement in accordance with Section 7, each Stockholder, severally and not
jointly, agrees as follows:
(a) Voting of Subject Shares. (i) At any meeting (whether
annual or special, and whether or not an adjourned or postponed
meeting) of stockholders of Del Monte, however called, or in connection
with any written consent of the stockholders of Del Monte, to vote
upon, or deliver a written consent with respect to (A) the Share
Issuance and/or (B) the adoption of the Amended and Restated
Certificate of Incorporation, or in
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any other circumstances upon which a vote or other approval with
respect to (A) the Share Issuance and/or (B) the adoption of the
Amended and Restated Certificate of Incorporation is sought, such
Stockholder shall vote all Subject Shares and Voting Shares in favor of
(A) the Share Issuance and (B) the adoption of the Amended and Restated
Certificate of Incorporation, as applicable, or any other actions
necessary or desirable in furtherance of the Merger and the Merger
Agreement and the transactions contemplated thereby. The agreements set
forth in the immediately preceding sentence shall equally apply if such
approvals were to be sought by the solicitation of written consents.
(ii) At any meeting of stockholders of Del Monte or
at any adjournment thereof or in any other circumstances upon which
such Stockholder's vote, consent or other approval is sought, such
Stockholder shall vote all Subject Shares and Voting Shares against (i)
any action or agreement that would result in a breach in any material
respect of any covenant, representation or warranty or any other
obligation or agreement of Del Monte or Merger Sub under the Merger
Agreement and (ii) except with the prior written consent of Heinz, any
action or agreement that would adversely affect or delay the Merger in
any respect including, but not limited to: (A) any Del Monte
Acquisition Proposal; (B) any amendment of Del Monte's certificate of
incorporation or amended and restated by-laws other than as
specifically contemplated by the Merger Agreement, any other proposal,
action or transaction involving Del Monte or any of its Subsidiaries,
which amendment or other proposal, action or transaction would in any
manner impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger
Agreement or change in any manner the voting rights of any class of Del
Monte's capital stock; (C) any change in the Persons who constitute the
board of directors of Del Monte that is not approved in advance by at
least a majority of the Persons who were directors of Del Monte as of
the date of this Agreement (or their successors who were so approved);
(D) any material change in the present capitalization or dividend
policy of Del Monte or Merger Sub; or (E) any other material change in
Del Monte's corporate structure or business that would adversely affect
or delay the Merger in any respect. Such Stockholder further agrees not
to commit or agree to take any action inconsistent with the foregoing.
(b) Proxies. Such Stockholder hereby irrevocably, but subject
to the termination provisions set forth in Section 7 hereof, appoints
and constitutes each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇, with full power of substitution and resubstitution, as
proxy for and attorney in fact of such Stockholder to act with respect
to and vote the Subject Shares and the Voting Shares for and in the
name, place and stead of such Stockholder at any annual, special or
other meeting of the holders of shares of Del Monte Common Stock and at
any adjournment or postponement thereof or pursuant to any written
consent in lieu of meeting, to the fullest extent that the Subject
Shares and the Voting Shares are entitled to be voted, as provided in
Section 1(a) above. Such Stockholder agrees that (i) this proxy shall
be irrevocable, but subject to the termination provisions set forth in
Section 7 hereof, and coupled with an interest and shall survive the
insolvency, incapacity, death or liquidation of such Stockholder and
(ii) such Stockholder will take such further action or execute such
other instruments as may be necessary to effectuate the intent of this
proxy and hereby revokes any proxy or power
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of attorney previously granted by such Stockholder with respect to the
Subject Shares and the Voting Shares. Without limiting such
Stockholder's obligations under Section 1(a), such Stockholder shall
not during the term of this Agreement purport to vote (or execute a
consent with respect to the Subject Shares or the Voting Shares) in
connection with any of the matters specified in Section 1(a) (the
"Specified Matters") (other than through this irrevocable proxy) or
grant any other proxy or power of attorney with respect to any of the
Subject Shares or the Voting Shares in respect of the Specified
Matters, deposit any of the Subject Shares or the Voting Shares into a
voting trust or enter into any agreement (other than this Agreement),
arrangement or understanding with any Person, directly or indirectly,
to vote, grant any proxy or give instructions with respect to the
voting of any of the Subject Shares or the Voting Shares in connection
with any of the Specified Matters. Each Stockholder will retain at all
times the right to vote the Subject Shares and Voting Shares, in such
Stockholder's discretion, on all matters other than the Specified
Matters that are at any time or from time to time presented to Del
Monte's stockholders generally. For the avoidance of doubt, the proxy
granted pursuant to this Section 1(b) shall be revoked automatically
upon termination of this Agreement pursuant to Section 7 hereof.
(c) Transfer Restrictions. From and after the date hereof and
until the termination of this Agreement pursuant to Section 7, such
Stockholder agrees not to (i) sell, transfer, pledge (except to the
extent that such Subject Shares are pledged as of the date hereof),
encumber, assign or otherwise dispose of (including by gift)
(collectively, "Transfer"), or enter into any contract, option or other
arrangement or understanding (including any profit sharing arrangement)
with respect to the Transfer of, any of the Subject Shares to any
Person other than pursuant to the Merger Agreement, except in each case
for Transfers to such of such Stockholder's controlled Affiliates as
agree to be bound hereby, (ii) deposit the Subject Shares into a voting
trust, enter into any voting arrangement or understanding, or otherwise
Transfer, whether by proxy, voting agreement or otherwise the right to
vote the Subject Shares or the Voting Shares or (iii) take any action
that would make any of its representations or warranties contained
herein untrue or incorrect or have the effect of preventing, disabling
or impeding such Stockholder from performing its obligations under this
Agreement.
(d) Legending of Certificates; Nominees Shares. Such
Stockholder shall promptly cause the following legend to be
conspicuously noted on each certificate representing the Subject
Shares:
"The shares represented by this certificate are
subject to a Voting Agreement dated as of June __, 2002. The
Voting Agreement restricts the transferability of the shares
represented by this certificate, and includes a voting
agreement, and an irrevocable proxy to vote the shares
represented by this certificate."
(e) Appraisal Rights. Such Stockholder hereby irrevocably
waives any rights of appraisal in connection with the Merger.
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(f) No Solicitation. From the date of this Agreement and until
the termination of this Agreement pursuant to Section 7 hereof, such
Stockholder shall not, and such Stockholder shall cause any of its
directors, officers, partners, employees, advisors, controlled
Affiliates (other than the Company, which is subject to similar
restrictions in the Merger Agreement), representatives, agents and
other intermediaries (including any investment banker, accountant,
legal advisor or other consultant) (collectively, "Representatives")
not to (i) directly or indirectly, solicit, initiate or encourage any
inquiry or proposal regarding a Del Monte Acquisition Proposal, (ii)
provide any non-public information or data to any Person relating to a
Del Monte Acquisition Proposal, (iii) waive, amend or modify any
standstill or confidentiality agreement to which such Stockholder or
Del Monte or any of its Subsidiaries is a party, (iv) engage in any
discussions or negotiations concerning a Del Monte Acquisition
Proposal, (v) otherwise knowingly facilitate any effort or attempt to
make or implement a Del Monte Acquisition Proposal or agree to,
recommend or accept a Del Monte Acquisition Proposal or (vi) solicit or
encourage any Person to vote against any of the matters set forth in
Section 1(a)(i) or in favor of any of the matters set forth in Section
1(a)(ii). If such Stockholder receives or becomes aware of a Del Monte
Acquisition Proposal, or a request for nonpublic information relating
to Del Monte or any of its Subsidiaries or for access to the
properties, books or records of Del Monte or any of its Subsidiaries by
any Person who is considering making or has made a Del Monte
Acquisition Proposal, it shall notify Heinz, Spinco and Del Monte
promptly (and in any event by 5:00 p.m., New York time, on the next
business day) after receipt of any such inquiries, proposals or offers
received by, any such information requested from, or any such
discussions or negotiations sought to be initiated or continued with,
such Stockholder or any of its Representatives, Del Monte, any
Subsidiary of Del Monte or any of their officers, directors, employees,
advisors or agents indicating, in connection with such notice, the name
of such Person and the material terms and conditions of any proposals
or offers and shall thereafter keep Heinz fully informed of the status
and terms of such discussions or negotiations and of any modifications
to such inquiries, proposals or offers. Such Stockholder represents
that it is not in violation of its obligations under the letter
agreement dated as of May 3, 2002, among Heinz, Del Monte and
Stockholders (the "Letter Agreement"). For purposes of this Section
1(f), "Del Monte Acquisition Proposal" shall be deemed to include the
direct or indirect sale or other disposition by any Stockholder of the
Subject Shares; provided, however, that after receipt by Del Monte of
the Share Issuance Approval, "Del Monte Acquisition Proposal" shall
instead be deemed to include the direct or indirect sale or other
disposition by any Stockholder of all or substantially all of the
Subject Shares.
(g) No Restraint on Officer or Director Action.
Notwithstanding anything to the contrary herein, Heinz hereby
acknowledges and agrees that no provision in this Agreement shall limit
or otherwise restrict any Stockholder, or any officer, director,
partner or employee of any Stockholder, who is, or becomes during the
term hereof, a director or an officer of Del Monte with respect to any
act or omission that such individual may undertake or authorize in his
or her capacity as a director or an officer of Del Monte, including any
vote that such individual may make as a director of Del Monte, with
respect to any matter presented to the board of directors of Del Monte.
The agreements set forth herein shall in no way restrict any such
director or officer in the
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exercise of his or her fiduciary duties as a director or officer of Del
Monte. Each Stockholder has executed this Agreement solely in the
capacity as the record and beneficial owner of Subject Shares.
2. Representations and Warranties of the Stockholders. Each
Stockholder hereby, severally and not jointly, represents and warrants to Heinz
and Spinco as of the date hereof as follows:
(a) Good Standing. Each Stockholder that is an entity is an
entity duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization.
(b) Due Authorization; Binding Agreement. Such Stockholder has
full right, power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. This Agreement
has been duly authorized, executed and delivered by such Stockholder,
and (assuming due authorization, execution and delivery by Heinz and
Spinco) constitutes the valid and binding obligation of such
Stockholder enforceable against such Stockholder in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, and general equitable
principles (whether considered in a proceeding in equity or at law).
(c) No Conflicts. No filing with, and no permit,
authorization, consent or approval of, any Governmental Authority or
any other Person is necessary for the execution of this Agreement by
such Stockholder and the consummation by such Stockholder of the
transactions contemplated hereby, except where the failure to make such
filing or to obtain such permit, authorization, consent or approval
would not have a Material Adverse Effect on such Stockholder or
prevent, delay or impede the performance by the Stockholder of its
obligations under this Agreement. None of the execution and delivery of
this Agreement by such Stockholder, the consummation of the
transactions contemplated hereby and compliance with the terms hereof
by such Stockholder will conflict with, result in any violation of, or
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, result in the termination of or a
right of termination or cancellation under, accelerate the performance
required by or rights or obligations under, or result in the creation
of any Lien upon any of the Subject Shares of such Stockholder under,
any of the terms, conditions or provisions of any trust agreement, loan
or credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise, license,
judgment, order, writ, injunction, notice, decree, statute, law,
ordinance, rule or regulation applicable to such Stockholder or to such
Stockholder's property or assets, except for any such conflicts,
violations, defaults or other occurrences that would not have a
Material Adverse Effect on such Stockholder or prevent, delay or impede
the performance by the Stockholder of its obligations under this
Agreement. If such Stockholder is married and such Stockholder's
Subject Shares constitute community property or otherwise need spousal
or other approval for this Agreement to be legal, valid and binding
upon such Subject Shares, such Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding
agreement of, such
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Stockholder's spouse, enforceable against such spouse in accordance
with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, and general
equitable principles (whether considered in a proceeding in equity or
at law). No trust of which such Stockholder is a trustee requires the
consent of any beneficiary to the execution and delivery of this
Agreement or to the consummation of the transactions contemplated
hereby.
(d) Ownership of the Subject Shares. Such Stockholder is the
beneficial owner and the owner of record of the Subject Shares. Such
Stockholder does not own, beneficially or of record, any shares of
capital stock of Del Monte or securities convertible or exchangeable
for shares of capital stock of Del Monte, other than the Subject
Shares. Such Stockholder has the sole right and power to vote and
dispose of the Subject Shares and to vote the Voting Shares, and none
of such Subject Shares is subject to any voting trust or other
agreement, arrangement or restriction with respect to the voting or
transfer of any of the Subject Shares, except for this Agreement or as
disclosed in the Del Monte Disclosure Letter delivered in connection
with the Merger Agreement.
(e) Litigation. There is no action, suit, investigation,
complaint or other proceeding pending against such Stockholder or, to
the knowledge of such Stockholder, any other Person or, to the
knowledge of such Stockholder, threatened against such Stockholder or
any other Person that restricts in any material respect or prohibits
(or, if successful, would restrict or prohibit) the exercise by any
party or beneficiary of its rights under this Agreement or the
performance by any party of its obligations under this Agreement.
(f) Accuracy of Representations; Reliance by Heinz. The
representations and warranties contained in this Agreement are accurate
in all respects as of the date of this Agreement, will be accurate in
all respects at all times through the termination of this Agreement and
will be accurate in all respects as of the Effective Time of the Merger
as if made on that date. Each Stockholder understands and acknowledges
that Heinz and Spinco are entering into the Merger Agreement in
reliance upon each Stockholder's execution and delivery of this
Agreement.
3. Further Assurances. Each of the Stockholders, severally and
not jointly, agrees to, from time to time, execute and deliver, or cause to be
executed and delivered, such additional or further consents, documents and other
instruments as Heinz may reasonably request for the purpose of effectively
carrying out the transactions contemplated by this Agreement.
4. Stop Transfer Order. Each of the Stockholders hereby
authorizes Del Monte's counsel to notify Del Monte's transfer agent that there
is a stop transfer order with respect to all of the Subject Shares (and that
this Agreement places limits on the voting of the Subject Shares).
5. Adjustments to Prevent Dilution. In the event of a stock
dividend or distribution, or any change in Del Monte's Common Stock by reason of
any stock dividend, split-up, reclassification, recapitalization, combination or
the exchange of shares, the term
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"Subject Shares" shall be deemed to refer to and include the Subject Shares as
well as all such stock dividends and distributions and any shares into which or
for which any or all of the Subject Shares may be changed or exchanged. In such
event, the definition of "Initial Amount" shall be proportionally adjusted.
6. Assignment; Third Party Beneficiaries. Neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any of the parties hereto (whether by operation of law or otherwise)
without the prior written consent of the other parties. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns. This
Agreement (including the documents and instruments referred to herein) is not
intended to confer upon any Person other than the parties hereto any rights or
remedies hereunder.
7. Termination. This Agreement shall terminate, and no party
shall have any rights or obligations hereunder and this Agreement shall become
null and void and have no further effect upon the first to occur of (a) the
Effective Time and (b) the termination of the Merger Agreement pursuant to
Section 9.1 of the Merger Agreement; provided that if this Agreement shall
terminate as a result of the occurrence of the Effective Time, the agreements
set forth in Section 1(e) shall survive the Effective Time. Nothing in this
Section 7 shall relieve any party of liability for breach of this Agreement.
8. General Provisions.
(a) Amendments. No amendment, modification, termination, or
waiver of any provision of this Agreement, and no consent to any
departure by any of the Stockholders, Spinco or Heinz from any
provision of this Agreement, shall be effective unless it shall be in
writing and signed and delivered by all the Stockholders, Heinz and
Spinco, and then it shall be effective only in the specific instance
and for the specific purpose for which it is given.
(b) Publication. Each Stockholder hereby consents to
disclosure in the Proxy Statement/Prospectus (including all documents
and schedules filed with the SEC) and press releases with respect to
the Merger in accordance with the Merger Agreement, the identity of
such Stockholder and ownership of the Subject Shares and the nature of
its commitments, arrangements and understandings pursuant to this
Agreement.
(c) Notice. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (with confirmation), mailed by registered or certified mail
(return receipt requested) or delivered by an express courier (with
confirmation) to Heinz and Spinco in accordance with Section 10.2 of
the Merger Agreement and to each Stockholder at the address set forth
under such Stockholder's name on the signature page of this Agreement
(or at such other address for a party as shall be specified by like
notice).
(d) Interpretation. When a reference is made in this Agreement
to Sections, such reference shall be to a Section of this Agreement
unless otherwise indicated. The headings contained in this Agreement
are for reference purposes only and shall not affect
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in any way the meaning or interpretation of this Agreement. Wherever
the words "include", "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation". No provision of this Agreement shall be construed to
require Heinz, Spinco or any of their respective Subsidiaries or
Affiliates, or any Stockholder to take any action which would violate
any applicable law, rule or regulation.
(e) Remedies Cumulative. All rights, powers and remedies
provided in this Agreement or otherwise available in respect hereof at
law or in equity shall be cumulative and not alternative, and the
exercise of any thereof by any party shall not preclude the
simultaneous or later exercise of any other right, power or remedy by
such party.
(f) Waivers. Except as otherwise specifically provided in this
Agreement, no action taken pursuant to this Agreement, including any
investigation by or on behalf of any party, shall be deemed to
constitute a waiver by the party taking such action of compliance with
any representations, warranties, covenants or agreements contained in
this Agreement. The waiver by any party hereto of a breach of any
provision contained in this Agreement shall not operate or be construed
as a waiver of any prior or subsequent breach of the same or any other
provision contained in this Agreement.
(g) Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Agreement or affecting the
validity or enforceability of any of the terms or provisions of this
Agreement in any other jurisdiction. If any provision of this Agreement
is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
(h) No Survival. None of the representations or warranties in
this Agreement or in any other document delivered pursuant to this
Agreement shall survive the date this Agreement is terminated pursuant
to Section 7; provided, however, that the termination of this Agreement
shall not relieve any party for any liability for any breach of this
Agreement that occurred prior to the termination hereof.
(i) Cooperation as to Regulatory Matters. If so requested by
Heinz, Spinco or Del Monte promptly after the date hereof, the
Stockholders will use their reasonable best efforts to make, and to
cooperate in the making by Del Monte of, all filings which are required
under the HSR Act and applicable requirements and to seek all
regulatory approvals required in connection with the transactions
contemplated hereby. The parties shall furnish to each other such
necessary information and reasonable assistance as may be requested in
connection with the preparation of filings and submissions to any
governmental agency, including filings under the provisions of the HSR
Act. Each Stockholder shall also supply Heinz, Spinco and Del Monte
with copies of all correspondence, filings or communications (or
memoranda setting forth the substance thereof) between such Stockholder
and its representatives and the Federal Trade Commission, the
Department of Justice and any other governmental agency or authority
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and members of their respective staffs with respect to this Agreement
and the transactions contemplated hereby.
(j) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware.
(k) Entire Agreement. This Agreement embodies the entire
agreement and understanding of the Stockholders, Heinz and Spinco, and
supersedes all prior agreements or understandings, with respect to the
subject matter of this Agreement.
(l) Fees and Expenses; Restriction on Fees. (i) Except as
specifically provided to the contrary in this Agreement, all costs and
expenses incurred in connection with this Agreement shall be paid by
the party incurring such expenses; provided, however, that if the
Merger Agreement is terminated due to the failure of Heinz to receive
the Section 355 Ruling (other than as a result of any action or
inaction by Del Monte or TPG (as defined below)), then Heinz shall pay
the reasonable documented fees and expenses of legal counsel for each
of TPG Partners, L.P. (the "Principal Stockholder") and TPG Parallel I,
L.P. ("Parallel", collectively, with the Principal Stockholder, "TPG")
in connection with the transactions contemplated by the Merger
Agreement in an aggregate amount not to exceed $250,000.
(ii) Each of the Stockholders agrees that, commencing
on the date hereof, it will not, directly or indirectly, accept any
payment from Del Monte or any of its subsidiaries including (i) in
connection with its execution of this Agreement, (ii) pursuant to any
agreement (whether written or oral) between Del Monte or any of its
subsidiaries, on the one hand, and either of the Stockholders or any of
their respective affiliates (other than Del Monte and its
subsidiaries), on the other hand, including the TPG Advisory Agreement,
the TPG Management Agreement, the TPG Stockholders' Agreement and the
TPG Registration Agreement, and any other agreement between Del Monte
or any of its subsidiaries, on the one hand, and either of the
Stockholders or any of their respective affiliates (other than Del
Monte and its subsidiaries), on the other hand or (iii) in connection
with the consummation of the transactions set forth in the Merger
Agreement, except for (a) the transaction advisory fee (the
"Transaction Advisory Fee") owed to the Principal Stockholder pursuant
to Section 3(b) of the TPG Advisory Agreement and (b) the management
advisory fee (the "Management Advisory Fee") to be paid quarterly to
the Principal Stockholder pursuant to Sections 3(a) and 3(b) of the TPG
Management Agreement, it being understood that the Management Advisory
Fee shall not be adjusted as set forth in Section 3(c) of the TPG
Management Agreement; provided that the Transaction Advisory Fee shall
not exceed $ 9,000,000.
(iii) For purposes of this Agreement, "TPG Advisory
Agreement" shall mean the Transaction Advisory Agreement, dated as of
April 18, 1997, between Merger Sub and the Principal Stockholder; "TPG
Management Agreement" shall mean the Management Advisory Agreement,
dated as of April 18, 1997, between Merger Sub and the Principal
Stockholder; "TPG Registration Agreement" shall mean the Registration
Rights Agreement, dated as of July 7, 1998, among Del Monte, the
Principal Stockholder and Parallel and "TPG Stockholders' Agreement"
shall mean the Stockholders'
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Agreement, dated as of April 18, 1997, among Del Monte, the Principal
Stockholder, Parallel, BankAmerica Investment Corporation, MIG Partners
III, BT Investment Partners, Inc., West Capital, 399 Venture Partners,
Inc. and TCW Capital Investment Corporation.
(m) Legal Counsel. Each Stockholder acknowledges that it has
been advised by, and has had the opportunity to consult with, its own
attorney prior to entering into this Agreement. Each Stockholder
acknowledges that the attorneys for Del Monte represent Del Monte and
do not represent any of the Stockholders in connection with the Merger
Agreement, this Agreement or any of the transactions contemplated
hereby or thereby.
(n) Confidentiality. Each Stockholder agrees (i) to hold any
non-public information regarding this Agreement and the Merger in
strict confidence and (ii) not to divulge any such non-public
information to any third person, in each case subject to the standard
exceptions provided for in the Confidentiality Agreement.
(o) Specific Performance; Enforcement. Each of the parties
hereto recognizes and acknowledges that a breach by it of any covenants
or agreements contained in this Agreement will cause the other party to
sustain damages for which it would not have an adequate remedy at law
for money damages, and therefore, each of the parties hereto agrees
that in the event of any such breach the aggrieved party shall be
entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any
other remedy to which it may be entitled, at law or in equity. The
parties agree that they shall be entitled to enforce specifically the
terms and provisions of this Agreement in the courts of the State of
Delaware and any Federal court, sitting in the state of Delaware, this
being in addition to any other remedy to which they are entitled at law
or in equity. In addition, each of the parties hereto (i) consents to
submit such party to the personal jurisdiction of any Federal court
located in the State of Delaware or any Delaware state court in the
event any dispute arises out of this Agreement or any of the
transactions contemplated hereby, (ii) agrees that such party will not
attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court, (iii) agrees that such party
will not bring any action relating to this Agreement or the
transactions contemplated hereby in any court other than a Federal
court sitting in the state of Delaware or a Delaware state court and
(iv) waives any right to trial by jury with respect to any claim or
proceeding related to or arising out of this Agreement or any of the
transactions contemplated hereby.
(p) Appointment of Agent for Service of Process. Each of the
parties hereto irrevocably and to the extent each party is not
otherwise subject to service of process in the State of Delaware,
hereby appoints The Corporation Trust Company, Corporation Trust
Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as such party's
agent in the State of Delaware for acceptance of legal process. Each
Stockholder hereby agrees that service made on such agent shall have
the same legal force and effect as if served upon such Stockholder
personally within the State of Delaware.
(q) Counterparts; Facsimile. This Agreement may be executed in
counterparts, all of which shall be considered one and the same
agreement, and shall
11
become effective when counterparts have been signed by each of the
parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart. This Agreement may be
executed by facsimile signatures of the parties hereto.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
▇. ▇. ▇▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
SKF FOODS INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. RING
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Ring
Title: Executive Vice President
TPG PARTNERS, L.P.
By: TPG Genpar, L.P., General Partner
By: TPG Advisors, Inc., General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
TPG PARALLEL I, L.P.
By: TPG Genpar, L.P., General Partner
By: TPG Advisors, Inc., General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President