Big Heart Pet Brands
BIG HEART PET BRANDS (Form: 8-K, Received: 02/19/2014 15:00:45)

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 or 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of report (Date of earliest event reported): February 18, 2014

 

 

BIG HEART PET BRANDS

(Exact Name of Registrant as Specified in its Charter)

 

 

 

Delaware   333-107830-05   75-3064217

(State or Other Jurisdiction

of Incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

 

One Maritime Plaza, San Francisco, California   94111
(Address of Principal Executive Offices)   (Zip Code)

Registrant’s telephone number, including area code: (415) 247-3000

DEL MONTE CORPORATION

(Former Name or Former Address, if Changed Since Last Report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Section 1-Registrant’s Business and Operations

 

Item 1.01. Entry into a Material Definitive Agreement.

The information set forth below under Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 1.01.

Section 2-Financial Information

 

Item 2.01. Completion of Acquisition or Disposition of Assets.

On February 18, 2014, and pursuant to the Purchase Agreement (as amended, modified or supplemented from time to time, the “ Purchase Agreement ”), dated as of October 9, 2013, by and among Del Monte Corporation, a Delaware corporation (the “ Company ”), Del Monte Pacific Limited, a corporation established under the laws of the British Virgin Islands (“ Parent ”) and Del Monte Foods Consumer Products, Inc. (now known as “Del Monte Foods, Inc.”), a Delaware corporation and subsidiary of Parent (the “ Acquiror ”), the Company consummated the sale to the Acquiror of the issued and outstanding interests of certain subsidiaries related to the Company’s consumer products business (the “ Business ”) and all assets primarily related to the Business (other than certain specified excluded assets) (the “ Transferred Assets ”) for a purchase price in cash of $1.675 billion, which amount is subject to adjustment as described in the Purchase Agreement. Pursuant to the Purchase Agreement, and in connection with the consummation of the sale of the Business, the Acquiror also assumed all liabilities of the Company arising from or relating to the Transferred Assets or the Business irrespective of whether such liabilities arise prior to, on or following the closing of the transaction (other than certain specified excluded liabilities).

On February 18, 2014, in connection with the consummation of the sale of the Business, the Company, the Acquiror and Parent entered into a Transition Services Agreement (the “ Transition Services Agreement ”), pursuant to which the Company will provide certain services to the Acquiror in connection with the Business and the Acquiror will provide certain reciprocal services to the Company. Also on February 18, 2014, and in connection with the consummation of the sale of the Business, the Company and the Acquiror entered into a Transitional Trademark License Agreement (the “ Transitional Trademark License ”), pursuant to which the Acquiror licensed certain trademarks and tradenames that were transferred to the Acquiror in connection with the sale of the Business to the Company for a transitional period.

The foregoing descriptions of the Purchase Agreement, Transition Services Agreement and Transitional Trademark License are qualified in their entirety by reference to the Purchase Agreement previously filed as Exhibit 10.3 with the Company’s Form 10-Q, filed on December 9, 2013, Transition Services Agreement and Transitional Trademark License, copies of which are filed as Exhibits 10.1, 10.2 and 10.3 respectively to this Current Report on Form 8-K.

 

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Section 5-Corporate Governance and Management

 

Item 5.03. Amendments to Articles of Incorporation or By-laws; Change in Fiscal Year.

On February 18, 2014, the Company filed a Certificate of Amendment (the “ Certificate of Amendment ”) effecting a change of the name of the Company from “Del Monte Corporation” to “Big Heart Pet Brands.” The Certificate of Amendment was filed with the Secretary of State of the State of Delaware. A copy of the Certificate of Amendment is attached as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference. The Company also amended its by-laws on February 18, 2014 to reflect the new name, and the amended by-laws are attached as Exhibit 3.2.

Section 7-Regulation FD

 

Item 7.01. Regulation FD Disclosure.

The information contained in this Item 7.01 and in the accompanying Exhibit 99.1, Exhibit 99.2 and Exhibit 99.3 shall not be deemed filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or incorporated by reference in any filing under the Exchange Act or the Securities Act of 1933, as amended, except as shall be expressly set forth by specific reference in such filing.

On February 18, 2014, the Company issued a press release announcing the completion of the disposition described in Item 2.01 of this Current Report on Form 8-K, a copy of which is attached as Exhibit 99.1 to this report. On February 19, 2014, the Company issued a press release announcing the change to the Company’s name, as described in Item 5.03 of this Current Report on Form 8-K, and its new URL, www.bigheartpet.com, a copy of which is attached as Exhibit 99.2.

This information is furnished pursuant to Item 7.01 of Form 8-K. The information in this report shall not be treated as filed for purposes of the Securities Exchange Act of 1934, as amended.

The furnishing of the information in this Item 7.01 is not intended to, and does not constitute a representation that such furnishing is required by Regulation FD or that the information in this Item 7.01 is material information that is not otherwise publicly available.

Section 9-Financial Statements and Exhibits

 

Item 9.01. Financial Statements and Exhibits.

(a) Not applicable.

 

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(b) Pro Forma Financial Information

The unaudited pro forma condensed consolidated statements of operations for the six months ended October 27, 2013 and the fiscal year ended April 28, 2013, and the unaudited pro forma condensed consolidated balance sheet as of October 27, 2013 (collectively referred to as the “Pro Forma Financial Information”) of the Company are furnished as Exhibit 99.3 to this Current Report on Form 8-K.

(c) Not applicable.

(d) Exhibits.

 

    *3.1   Certificate of Amendment filed with the Delaware Secretary of State on February 18, 2014.
    *3.2   By-laws of the Company, as amended on February 18, 2014.
    10.1   Purchase Agreement, dated as of October 9, 2013, by and among the Company, Parent and the Acquiror (incorporated by reference to Exhibit 10.3 to the Company’s Form 10 Q, filed on December 9, 2013).
  *10.2   Transition Services Agreement, dated as of February 18, 2014, by and among the Company, Parent and the Acquiror.
  *10.3   Transitional Trademark License Agreement, dated as of February 18, 2014, by and between the Company and the Acquiror.
**99.1   Press release, dated February 18, 2014.
**99.2   Press release, dated February 19, 2014
**99.3   Unaudited pro forma condensed consolidated statements of operations for the six months ended October 27, 2013 and the fiscal year ended April 28, 2013 and the unaudited pro forma condensed consolidated balance sheet as of October 27, 2013 of the Company.

 

* Filed herewith
** Furnished herewith

 

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SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

      Big Heart Pet Brands
Date:   February 19, 2014     By:  

/s/ Timothy S. Ernst

      Name:   Timothy S. Ernst
      Title:   Secretary

 

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EXHIBIT INDEX

 

Exhibit

 

Description

    *3.1   Certificate of Amendment filed with the Delaware Secretary of State on February 18, 2014.
    *3.2   By-laws of the Company, as amended on February 18, 2014.
    10.1   Purchase Agreement, dated as of October 9, 2013, by and among the Company, Parent and the Acquiror (incorporated by reference to Exhibit 10.3 to the Company’s Form 10-Q, filed on December 9, 2013).
  *10.2   Transition Services Agreement, dated as of February 18, 2014, by and among the Company, Parent and the Acquiror.
  *10.3   Transitional Trademark License Agreement, dated as of February 18, 2014, by and between the Company and the Acquiror.
**99.1   Press release, dated February 18, 2014.
**99.2   Press release, dated February 19, 2014.
**99.3   Unaudited pro forma condensed consolidated statements of operations for the six months ended October 27, 2013 and the fiscal year ended April 28, 2013 and the unaudited pro forma condensed consolidated balance sheet as of October 27, 2013 of the Company.

 

* Filed herewith
** Furnished herewith

 

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Exhibit 3.1

CERTIFICATE OF AMENDMENT

TO THE

CERTIFICATE OF INCORPORATION

OF

DEL MONTE CORPORATION

Del Monte Corporation, a corporation organized and existing under the laws of the State of Delaware (the “ Corporation ”), does hereby certify:

1. That by unanimous written consent of the Board of Directors of the Corporation, resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:

RESOLVED, that the Board hereby declares it advisable and in the best interests of the Corporation that the Certificate of Incorporation of the Corporation be amended by changing the Article thereof numbered “FIRST” so that, as amended, said Article shall be and read as follows:

“FIRST: The name of the corporation is “Big Heart Pet Brands”.”

2. That thereafter, pursuant to resolution of its Board of Directors, a unanimous written consent of the stockholders of the Corporation was passed in accordance with Section 228 of the General Corporation Law of the State of Delaware, in which consent the necessary number of shares as required by statute approved the amendment.

3. This Certificate of Amendment, which amends the Certificate of Incorporation, was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

4. This Certificate of Amendment shall be effective as of the date of its filing with the Secretary of State of the State of Delaware.

[Remainder of Page Intentionally Left Blank]


IN WITNESS WHEREOF, the undersigned, as a duly authorized officer of the Corporation, has executed this Certificate of Amendment on February 18, 2014.

 

By:  

 /s/ Timothy S.Ernst

Name:   Timothy S. Ernst
Title:   Secretary

[Signature Page of Certificate of Amendment of Del Monte Corporation]

Exhibit 3.2

BY-LAWS

of

BIG HEART PET BRANDS

(hereinafter, the “Corporation”)

Amended in their entirety on April 26, 2011

ARTICLE I

OFFICES

Section 1. Registered Office . The registered office of the Corporation shall be in the City of Wilmington, County of New Castle, State of Delaware.

Section 2. Other Offices . The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine.

ARTICLE II

MEETING OF STOCKHOLDERS

Section 1. Place of Meetings . Meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place, either within or without the State of Delaware, as shall be designated from time to time by the Board of Directors.

Section 2. Annual Meetings . The Annual Meeting of Stockholders shall be held on such date and at such time as shall be designated from time to time by the Board of Directors, at which meeting the stockholders shall elect a Board of Directors and transact such other business as may properly be brought before the meeting.

Section 3. Special Meetings . Special Meetings of stockholders for any purpose or purposes may be called at any time by the Chairman of the Board or the Board of Directors, but such Special Meetings may not be called by any other person or persons. Business transacted at any Special Meeting shall be limited to the purposes stated in the notice.

Section 4. Notice of Meetings . Notice of an Annual Meeting or Special Meeting stating the place, date, and hour of the meeting and in the case of a Special Meeting, the purpose or purposes for which the meeting is called, shall be given by the Corporation either personally or by mail or by other lawful means not less than ten nor more than sixty days before the date of the meeting to each stockholder entitled to vote at such meeting.


Section 5. Quorum . Except as otherwise provided by law or by the Certificate of Incorporation, the holders of a majority in voting power of the capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting of the time, place, if any, thereof and the means of remote communications, if any, by which stockholders may be deemed present in person at such adjourned meeting, until a quorum shall be present or represented. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

Section 6. Voting . Except as otherwise provided by or pursuant to the provisions of the Certificate of Incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the Corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors a plurality of the votes cast shall be sufficient to elect. All other elections and questions shall, unless otherwise provided by the Certificate of Incorporation, these By-laws, the rules or regulations of any stock exchange applicable to the Corporation, or applicable law or pursuant to any regulation applicable to the Corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the Corporation which are present in person or by proxy and entitled to vote thereon.

Section 7. Action by Consent . Any action required to be taken at any Annual or Special meeting of stockholders, or any action which may be taken at any Annual or Special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent shall be given by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous consent shall be given to those stockholders who have not consented and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that consents given by a sufficient number of holders to take the action were delivered to the Corporation.

Section 8. List of Stockholders Entitled to Vote . The Secretary shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the

 

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stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list of stockholders or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.

Section 9. Organization . At every meeting of stockholders, the Chairman of the Board, if there be one, shall be the chairman of the meeting or, in the case of vacancy in office or absence of the Chairman of the Board, one of the following officers present shall be the Chairman of the meeting in the order stated: the Vice Chairman of the Board, the Chief Executive Officer, the Chief Operating Officer, the President, any Vice President, or, in the absence of any of the foregoing, a Chairman chosen by the stockholders at the meeting shall act as Chairman, and the Secretary, or in his or her absence, an Assistant Secretary, or in the absence of both the Secretary and Assistant Secretaries, a person appointed by the chairman of the meeting, shall act as Secretary.

Section 10. Record Date . In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and which record date: (i) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty nor less than ten days before the date of such meeting; (ii) in the case of determination of stockholders entitled to express consent to corporate action without a meeting, shall not be more than ten days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (iii) in the case of any other action, shall not be more than sixty days prior to such other action. If no record date is fixed: (a) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (b) the record date for determining stockholders entitled to express consent to corporate action without a meeting when no prior action of the Board of Directors is required by law, shall be the first day on which a consent setting forth the action taken or proposed to be taken is delivered to the Corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (c) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

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Section 11. Conduct of Meetings . The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the chairman of the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the chairman of any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The chairman of any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such chairman should so determine, such person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

ARTICLE III

DIRECTORS

Section 1. Number and Election of Directors . The number of directors of the Corporation shall be fixed in accordance with the Certificate of Incorporation. Each elected director shall hold office until the next Annual Meeting and until his successor is duly elected and qualified, or until his earlier resignation or removal.

Section 2. Vacancies . Vacancies and newly created directorships shall be filled in accordance with the Certificate of Incorporation.

Section 3. Committees . The Board of Directors may designate one or more committees, which committees shall, to the extent provided in the resolution of the Board of Directors establishing such a committee, have all authority and may exercise all the powers of the Board of Directors in the management of the business and affairs of the Corporation to the extent lawful under the General Corporation Law of the State of Delaware.

Section 4. Duties and Powers . The business of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of

 

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Incorporation or by these By-laws directed or required to be exercised or done by the stockholders.

Section 5. Meetings . The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of Delaware. Regular meetings of the Board of Directors may be held without notice at such time and at such place as may from time to time be determined by the Board of Directors. Special meetings of the Board of Directors may be called by the President or any one director with one day’s notice to each director, either personally or by mail, telephone, facsimile transmission or other means of electronic transmission.

Section 6. Quorum; Board Action . Except as may be otherwise specifically provided by law, the Certificate of Incorporation or these By-laws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business, and the vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting of the time, place, if any, thereof and the means of remote communications, if any, by which directors may be deemed present in person at such adjourned meeting, until a quorum shall be present.

Section 7. Actions of Board . Unless otherwise provided by the Certificate of Incorporation or these By-laws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all the members of the Board of Directors or committee, as the case may be, consent thereto in accordance with applicable law.

Section 8. Telephonic Meetings Permitted . Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this By-law shall constitute presence in person at such meeting.

ARTICLE IV

OFFICERS

The officers of the Corporation shall consist of a President, a Secretary, a Treasurer and such other additional officers with such titles as the Board of Directors shall determine, all of whom shall be chosen by and shall serve at the pleasure of the Board of Directors. Such officers shall have the usual powers and shall perform all the usual duties incident to their respective offices. All officers shall be subject to the supervision and direction of the Board of Directors. The authority, duties or responsibilities of any officer of the Corporation may be suspended by the President with or without cause. Any officer elected or appointed by the Board of Directors may be removed by the Board of Directors with or without cause.

 

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ARTICLE V

NOTICES

Section 1. Notices . Except as otherwise provided herein or permitted by applicable law, whenever notice is required by law, the Certificate of Incorporation or these By-laws, to be given to any director, member of a committee or stockholder, such notice may be given by mail, addressed to such director, member of a committee or stockholder, at his address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given personally or by telegram, telecopier, telephone or other means of electronic transmission.

Section 2. Waivers of Notice . Whenever any notice is required by law, the Certificate of Incorporation or these By-laws, to be given to any director, member of a committee or stockholder, a waiver thereof, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.

ARTICLE VI

GENERAL PROVISIONS

Section 1. Dividends . Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, may be declared by the Board of Directors at any regular or special meeting, and may be paid in cash, in property, or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve.

Section 2. Fiscal Year . The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.

Section 3. Corporate Seal . The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced.

 

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ARTICLE VII

INDEMNIFICATION

Section 1. Power to Indemnify in Actions, Suits or Proceedings Other than by or in the Right of the Corporation . The Corporation shall 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 he is or was a director or officer of the Corporation, or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer or employee 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 him in connection with such action, suit or proceeding if he acted in good faith and in a manner he 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 his conduct was unlawful. The Corporation shall be required to provide the indemnification described in the immediately preceding sentence in connection with a proceeding (or part thereof) commenced by such person only if the commencement of such proceeding (or part thereof) by the person was authorized by the Board of Directors. 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 he 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 his conduct was unlawful.

Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation . The Corporation shall 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 he is or was a director or officer of the Corporation, or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer or employee of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation. The Corporation shall be required to provide the indemnification described in the immediately preceding sentence in connection with a proceeding (or part thereof) commenced by such person only if the commencement of such proceeding (or part thereof) by the person was authorized by the Board of Directors. 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 in which such action or suit was brought or the Delaware Court of Chancery 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 shall deem proper.

 

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Section 3. Costs; Charges and Expenses . Notwithstanding the other provisions of this Article VII, to the extent that a present or former director or officer of the Corporation has been successful on the merits or otherwise, including without limitation, the dismissal of an action without prejudice, in the defense of any action, suit or proceeding referred to in Sections 1 and 2 above, or in the defense of any claim, issue or matter therein, that person shall be indemnified against all costs, charges and expenses (including attorneys’ fees) actually and reasonably incurred by that person or on that person’s behalf in connection therewith.

Section 4. Authorization of Indemnification . Any indemnification under this Article VII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, (ii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, (iii) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion or (iv) by the stockholders, that indemnification of the director or officer is proper because that person has met the applicable standards of conduct set forth in Sections 1 and 2 above.

Section 5. Good Faith Defined . For purposes of any determination under this Article VII, a person shall be deemed to have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his conduct was unlawful, if his action is based on the records or books of account of this Corporation or another enterprise, or on information supplied to him by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or record given or reports made to the Corporation or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term “another enterprise” as used in this Section 5 shall mean any other corporation or any partnership, joint venture, trust or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer or employee. The provisions of this Section 5 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person way be deemed to have met the applicable standard of conduct set forth in Sections 1 and 2 of this Article VII, as the case may be.

Section 6. Advance of Costs, Charges and Expenses . Costs, charges and expenses (including attorneys’ fees) incurred by a person referred to in Sections 1 and 2 above in defending a civil or criminal action, suit or proceeding (including investigations by any government agency and all costs, charges and expenses incurred in preparing for any threatened action, suit or proceeding) shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding; provided, however, that the payment of such costs, charges and expenses incurred by a director or officer as set forth herein in advance of the final disposition of such action, suit or proceeding shall be made only upon receipt of an undertaking by or on behalf of the director or officer to repay all amounts so advanced in the event that it shall ultimately be determined as provided elsewhere in this Article VII that such director or officer is not entitled to be indemnified by the Corporation as authorized in this Article VII. No security shall be required for such undertaking and such undertaking shall be accepted without reference to the recipient’s

 

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financial ability to make repayment. The Board of Directors may, in the manner set forth above, and subject to the approval of such director or officer of the Corporation, authorize the Corporation’s counsel to represent such person in any action, suit or proceeding, whether or not the Corporation is party to such action, suit or proceeding.

Section 7. Procedure for Indemnification . Any indemnification under Sections 1, 2 or 3 or advance of costs, charges and expenses under Section 6 of this Article VII shall be made promptly, and in any event, within sixty (60) days, upon the written request of the director or officer directed to the Secretary of the Corporation. The right to indemnification or advances granted in this Article VII shall be enforceable by the director or officer in any court of competent jurisdiction if the Corporation denies such request, in whole or part, or if no disposition thereof is made within sixty (60) days. Such person’s costs and expenses incurred in connection with successfully establishing that person’s right to indemnification or advances, in whole or in part, in any such action shall also be indemnified by the Corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for advance costs, charges and expenses under Section 6 of this Article VII where the required undertaking, if any, has been received by the Corporation) that the claimant has not met the standard of conduct set forth in Sections 1 or 2 of this Article VII, but the burden of proving such standard of conduct has not been met shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, its independent legal counsel and its stockholders) to have made such a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct set forth in Sections 1 and 2 of this Article VII, nor the fact that there has been an actual determination by the Corporation (including its Board of Directors, its independent legal counsel and its stockholders) that the claimant has not met such applicable standard, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

Section 8. Non-Exclusivity of Indemnification and Advancement of Expenses . The indemnification and advancement of expenses provided by or granted pursuant to this Article VII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any By-law, agreement, contract, vote of stockholders or disinterested directors or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Sections 1 and 2 of this Article VII shall be made to the fullest extent permitted by law. The provisions of this Article VII shall not be deemed to preclude the indemnification of any person who is not specified in Sections 1 or 2 of this Article VII but whom the Corporation has the power or obligation to indemnify under the provisions of the Delaware General Corporation Law, or otherwise.

Section 9. Meaning of “Corporation” for Purposes of Article VII . For purposes of this Article VII, 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, employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or, while a director, officer, employee or agent of such constituent corporation, is or was serving at the request of

 

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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 the provisions of this Article VII with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued.

Section 10. Survival of Indemnification and Advancement of Expenses . The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 10 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such officer or director. The indemnification and advancement of expenses that may have been provided to an employee or agent of the Corporation by action of the Board of Directors shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be an employee or agent of the Corporation and shall inure to the benefit of the heirs, executors and administrators of such a person, after the time such person has ceased to be an employee or agent of the Corporation, only on such terms and conditions and to the extent determined by the Board of Directors in its sole discretion.

ARTICLE VIII

AMENDMENTS

These By-laws may be altered, amended or repealed, in whole or in part, or new By-laws may be adopted by the majority vote of the entire Board of Directors.

Entire Board of Directors. As used in this Article VIII and in these By-laws generally, the term “entire Board of Directors” means the total number of the directors which the Corporation would have if there were no vacancies or newly created directorships.

 

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Exhibit 10.2

EXECUTION VERSION

TRANSITION SERVICES AGREEMENT

THIS TRANSITION SERVICES AGREEMENT (the “ Agreement ”), dated as of February 18, 2014 is made by and between Del Monte Corporation, a Delaware corporation (“ DMC ”), Del Monte Foods, Inc. (formerly known as Del Monte Foods Consumer Products, Inc.), a Delaware corporation (“ Buyer ”), and, solely for purposes of Section 9.16 , Del Monte Pacific Limited, a corporation established under the laws of the British Virgin Islands (“ Parent ”).

RECITALS

A. DMC is engaged in, among other businesses, the business of developing, manufacturing, marketing, distributing and selling food products for human consumption under the brands DEL MONTE, S&W, CONTADINA and COLLEGE INN and various others, (collectively, the “ Business ”).

B. Pursuant to the Purchase Agreement, dated as of October 9, 2013, by and between DMC, Buyer and Parent (as may be amended, modified or supplemented from time to time, the “ Purchase Agreement ”) (capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Purchase Agreement), Buyer has agreed to purchase (i) the Shares and (ii) certain of the assets of DMC Related to the Business, in each case, upon the terms and subject to the conditions set forth in the Purchase Agreement. In addition, Buyer has agreed to assume certain Liabilities of DMC upon the terms and subject to the conditions set forth in the Purchase Agreement.

C. After the Closing Date, Buyer and its Affiliates will own and operate the Business.

D. DMC has provided certain services to the Business in the past.

E. In order to support the continued and uninterrupted operation of the Business following the Closing Date, the Parties desire to enter into this Agreement, pursuant to which DMC will provide, for the time periods and consideration described below, certain of the services that have been provided by DMC to the Business prior to the Closing Date and Buyer will provide certain reciprocal services as set forth on Schedule A (the “ Buyer Reciprocal Services ”).

F. The parties hereby incorporate by reference into this Agreement the terms set forth in (i) section 2 of that certain letter agreement between the parties dated November 29, 2013 (provided that for purposes of such incorporation by reference, Annex B to such November 29 letter agreement shall be modified as set forth in the revision of such Annex B included in Schedule J to this Agreement), (ii) paragraph (g) of that certain letter agreement between the parties dated December 19, 2013, (iii) section 1 of that certain letter agreement between the parties dated January 23, 2014 (provided that for purposes of such incorporation by reference, Annex A to such January 23 letter agreement shall be modified as set forth in the revision of such Annex A included in Schedule J to this Agreement) and (iv) Addendum I dated January 24, 2014, each in the form annexed as Schedule J to this Agreement. In the event of any conflict between any of the terms of this Agreement, including without limitation any of such letter agreements, such


Addendum or any of the Schedules to this Agreement, the terms of the most recently dated document shall control (for which purpose the body of this Agreement and the Schedules to this Agreement (other than Schedule J) shall be deemed dated October 9, 2013

AGREEMENT

In consideration of the mutual covenants and premises contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereto agree as follows:

ARTICLE I

DEFINITIONS

1.1 Definitions . As used in this Agreement, the following terms shall have the following respective meanings:

Business ” shall have the meaning set forth in the Recitals.

Buyer Confidential Information ” shall mean the confidential, proprietary or non-public information that Buyer designates as being confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential. Buyer Confidential Information includes, without limitation, product specifications, recipes, business and product plans, financial and accounting information, the terms and conditions of this Agreement and the Intellectual Property of the Business acquired under the Purchase Agreement. Notwithstanding the foregoing, Buyer Confidential Information does not include information which: (i) is or becomes public knowledge without any action by or involvement of, DMC or its Affiliates; (ii) is disclosed by DMC with the prior written approval of Buyer; (iii) is intentionally disclosed by Buyer to a third party without restriction on disclosure; (iv) is disclosed to DMC by a party other than Buyer having the right to disclose such information; or (v) is independently developed by DMC without reference to Buyer Confidential Information.

Buyer Indemnitees ” shall have the meaning set forth in Section 7.2 .

DMC Indemnitees ” shall have the meaning set forth in Section 7.1 .

Disaster ” shall mean any unplanned interruption in the provision of the Transition Services hereunder, reasonably projected at the time of occurrence, which remains uncorrected by noon (local time) on the third Business Day after the onset of such interruption.

DMC Confidential Information ” shall mean the confidential, non-public or proprietary information provided to Buyer on and after the Closing Date that DMC designates as being confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential. DMC Confidential Information includes, without limitation, business plans, financial and accounting information and the terms and conditions of this Agreement. Notwithstanding the foregoing, DMC Confidential Information does not include information which: (i) is or becomes public knowledge without any action by, or involvement of, Buyer or its Affiliates; (ii) is disclosed by Buyer with the prior written approval of DMC; (iii) is intentionally disclosed by DMC to a third party without restriction on disclosure; (iv) is disclosed to Buyer by a

 

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party other than DMC having the right to disclose such information; or (v) is independently developed by Buyer without reference to DMC Confidential Information.

DMC Notice ” shall have the meaning set forth in Section 5.3(b) .

Force Majeure Event ” shall have the meaning set forth in Section 9.14 .

Net Proceeds ” shall have the meaning set forth in Section 7.4(a) .

Non-Transferred Employee ” shall mean any person who is a current employee of DMC or any of its Affiliates, who provides services for the Business and who does not become a Transferred Employee.

Notice ” shall have the meaning set forth in Section 5.3(a) .

Party ” shall mean Buyer or DMC.

Purchase Agreement ” shall have the meaning set forth in the Recitals.

Service Levels ” shall have the meaning set forth in Section 5.1(a) .

Transition Period ” shall mean, for the Transition Services, a transition period of twelve (12) months from the Closing Date.

Transition Services ” shall have the meaning set forth in Section 2.1 .

Transition Services Representative ” shall have the meaning set forth in Section 2.2 .

Capitalized terms used in this Agreement but not defined in Section 1.1 or elsewhere in this Agreement shall have the meanings given to them in the Purchase Agreement.

ARTICLE II

TRANSITION SERVICES

2.1 Provision of Specified Transition Services .

(a) Beginning on the Closing Date, and subject to the terms and conditions of this Agreement, DMC shall provide, or shall cause to be provided to Buyer the services, functions and responsibilities described on Schedule B , attached hereto (each, a “ Transition Service ,” and collectively, the “ Transition Services ”).

(b) Buyer shall provide to DMC in exchange for the crediting set forth in Section 3.1 the Buyer Reciprocal Services in cases where facilities or personnel that provide services to the retained business of DMC have been transferred to the Buyer at Closing.

(c) Notwithstanding the foregoing, Buyer acknowledges that it shall be responsible for providing to itself, among other things, the following corporate services, to the

 

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extent not described on Schedule B : legal, tax, treasury, Securities Exchange Commission reporting, government relations, human resources and risk management services.

2.2 Cooperation . Each of DMC and Buyer agree to: (a) appoint and maintain a representative who shall use commercially reasonable efforts to fulfill the terms herein and achieve overall intent of this Agreement (each, a “ Transition Services Representative ”) and (b) coordinate the activities of their respective officers, employees and representatives with respect to the Transition Services to fulfill the terms herein and achieve the overall intent of this Agreement.

2.3 Personnel . The Transition Services shall be performed by (a) the Non-Transferred Employees or by third parties under contract with DMC (together with any other DMC employee assigned to perform the Transition Services, the “ Transition Providers ”), in each case, as reasonably determined by DMC and (b) by the employees listed on Schedule I (each, a “ Buyer Transition Provider ”). Buyer shall make available the services of all Buyer Transition Providers for the provision of the Transition Services and agrees not to terminate any Buyer Transition Provider during the Transition Period other than for cause. In the event that a Buyer Transition Provider is terminated for cause, resigns or is otherwise no longer employed by Buyer or capable of performing the Transition Services due to death or disability, Buyer shall identify a substitute Buyer Transition Provider who shall have the technical skills and education appropriate to perform the applicable Transition Services to provide the applicable Transition Services and DMC will cooperate with Buyer in connection therewith. The compensation and benefits with respect to any such substitute Buyer Transition Provider shall not exceed the compensation and benefits related to such terminated Buyer Transition Provider. DMC shall be responsible for all costs related to the provision of the Transition Services by the Transition Providers, including all direct and indirect compensation (including fringe benefits) for the Transition Providers, including without limitation, worker’s compensation insurance, employment taxes, wages, vacation pay, and other employer liabilities relating to the Transition Providers (collectively, the “ Employee Costs ”); provided , however , that Buyer shall be responsible for all amounts due in accordance with Section 3.1 . Except to the extent provided in Section 3.1 with respect to the Buyer Transition Providers, Buyer shall be responsible for all Employee Costs related to the Transferred Employees.

2.4 Disaster Recovery . As soon as practicable after the occurrence of any unplanned interruption in the provision of the Transition Services under this Agreement, DMC shall (i) use its commercially reasonable efforts to promptly resume providing the interrupted Transition Services, (ii) use its commercially reasonable efforts to prevent similar interruptions of services in the future and (iii) determine whether a Disaster has occurred. Upon the occurrence of any Disaster, DMC shall notify Buyer’s Transition Services Representative, as soon as practicable, and DMC shall use commercially reasonable efforts to resume providing the interrupted Transition Services. To the extent a Disaster impacts only the Transition Services, DMC will react to that Disaster in a manner substantially similar to the manner in which it reacts to Disasters impacting DMC’s operations. The Parties shall cooperate in good faith to appropriately adjust the applicable fees payable under Article III in the event of an unplanned interruption in Transition Services to the extent Buyer suffers damages or incurs expenses in connection thereto; provided , however , the foregoing shall not permit Buyer to withhold payments due pursuant to Article III .

 

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2.5 Changes to Transition Services .

(a) Subject to Section 2.6 hereof, DMC may, from time to time, modify or change the specifications of any Transition Services to be provided hereunder for operational and other reasons; provided that any such modifications or changes are also made with respect to DMC’s continuing operations.

(b) DMC may temporarily suspend the provision of Transition Services (or any part thereof) for reasons of modification as described in this Section 2.5 or for preventative or emergency maintenance. In connection with any suspension of Transition Services for preventative and emergency maintenance, to the extent reasonably practicable, DMC shall (A) promptly consult with the on-site Buyer’s Transition Services Representative, including with respect to the anticipated duration of such suspension; and (B) provide advance written notice to Buyer of any such suspension.

2.6 Modification of Services . Notwithstanding anything to the contrary herein, DMC shall not be obligated to provide any modification of or increase in usage of the nature or scope of any of the services to be provided hereunder that would result in an increase in the time or cost of performance in a manner inconsistent with the historical variances during the previous twelve (12) month period prior to the Closing Date or costs with respect to the provision of such services, unless the Parties otherwise agree in writing.

2.7 Information .

(a) The Buyer, on the one hand, and DMC, on the other hand, shall make available to each other any information reasonably required or reasonably requested by the other party regarding the performance of any Transition Service and shall be responsible for providing that information on a timely basis and for ensuring the accuracy and completeness of that information.

(b) DMC shall be entitled to rely upon the genuineness, validity or truthfulness of any documents, instrument or other writing presented by the Buyer in connection with this Agreement. Neither DMC nor any of its Affiliates shall be liable for any impairment of any Transition Service caused by its not receiving information that was requested reasonably in advance and with reasonable specificity, either timely or at all, or by its receiving inaccurate or incomplete information from the Buyer or its Affiliates that is required or reasonably requested regarding that Transition Service.

2.8 Reports . During the term of this Agreement, Buyer shall provide to DMC the reports described in Schedule C , and DMC shall provide to Buyer the reports described in Schedule D at the frequency indicated in such Schedules, as the same may be adjusted from time to time upon mutual agreement of the parties.

 

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ARTICLE III

FEES AND PASS-THROUGH COSTS

3.1 Fees Charged for Services .

(a) DMC shall provide all of the Transition Services referred to in Section 2.1 to Buyer or its designee(s) in exchange for the fees set forth on Schedule E-1 ; provided , however , that the fees with respect to any such Transition Service that is being provided by a Buyer Transition Provider shall be reduced by an amount equal to 50% of the actual compensation and cost of benefits incurred by Buyer for any such Buyer Transition Provider.

(b) Upon expiration of the Transition Period, this Agreement will terminate unless extended for at least six (6) months by mutual agreement of the Parties with 60 days’ notice required prior to any applicable termination date.

(c) DMC shall deliver to Buyer an invoice, within fifteen (15) days after the final day of each fiscal month, including transition service fees set forth in Schedule E-1 and any out-of-pocket costs incurred on behalf of Buyer related to Schedule E-1 . The amount payable by Buyer under such invoice shall be net 50% of the actual compensation and cost of benefits incurred by Buyer for any Buyer Transition Provider listed on Schedule I (including for the avoidance of doubt any Buyer Transition Provider substituted therefor pursuant to Section 2.3) providing Buyer Reciprocal Services as well of the net cost of Warehousing & Logistics services pursuant to that certain letter agreement between the parties dated January 23, 2014, and any out-of-pocket costs incurred on behalf of DMC, for such month as set forth in a monthly statement provided by Buyer to DMC within fifteen (15) days after the final day of each fiscal month. Buyer shall pay to DMC all amounts due and payable on such invoices within fifteen (15) days after the date of receipt of the applicable invoices. In the event Buyer disagrees with the amounts set forth on an invoice, the Buyer may seek remedies under Section 9.11 (including via subsection (c) thereof initially); provided however, the foregoing shall not permit Buyer to withhold payments due pursuant to this Section 3.1 . Without limiting the foregoing, DMC may supplement any invoice rendered for less than the full amount to which it is entitled under Section 3.1(a) , provided that such supplemental invoice is delivered within sixty (60) days after the delivery of the original invoice which is being supplemented. In the event that a Buyer Transition Provider ceases to perform the Transition Services as described in Section 2.3 and DMC provides additional support with respect to any Transition Services previously provided by such Buyer Transition Provider, DMC may submit a revised invoice reflecting the compensation and cost of benefits of any such Non-Transferred Employee providing such support.

(d) All payments to DMC or Buyer hereunder shall be made in United States dollars.

3.2 Late Payments . Any payments owing to either Party pursuant to this Agreement that are not paid when due (other than as a result of a delay directly caused by such Party or its Affiliates) shall bear interest at the rate of ten (10) percent per annum, but in no event to exceed the highest lawful rate of interest, calculated from the date such amount was due until the date payment is received by such Party. In addition, such Party shall be permitted to set off any payments owed by such Party to the other Party under this Agreement, the Purchase Agreement or

 

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any other Agreement entered into in connection therewith to the extent that any such payment is not paid when due.

3.3 Pass-Through Costs . The Parties agree that Buyer shall directly receive certain services set forth on Schedule F in connection with the operation of the Business after the Closing Date, together with such additional services as identified by the Parties as necessary or appropriate to be provided to the Business or as otherwise agreed by the Parties. Buyer agrees to reimburse DMC for its proportionate share of the actual, out of pocket costs incurred by DMC in providing such services as set forth on Schedule F (“ Pass-Through Costs ”) including costs associated with any Retained Dividable Contract (as defined in Schedule B) that is not exclusive to DMC or non-transferrable to a third party based upon relative usage of goods or services if billed on combined invoices from third party providers under the payment terms of an invoice from DMC (the “ Pass-Through Invoice ”), setting forth Buyer’s proportionate share of the Pass-Through Costs and allocating to Buyer, Buyer’s proportionate share of any applicable rebate and other non-invoiced benefits received by DMC pursuant to an agreement with a third party in connection with the services set forth on Schedule F ; provided , however (a) concurrent with the delivery of the Pass-Through Invoice, DMC shall include a calculation of such Pass-Through Costs and a calculation of Buyer’s share of any such rebate or other non-invoiced benefits and (b) at Buyer’s request, DMC shall provide (i) reasonable backup for such Pass-Through Cost, including any underlying third party invoice(s) and (ii) access to its books and records on an open book basis in connection with Buyer’s diligence of such Pass-Through Invoice. Such Pass-Through Invoice shall be calculated by DMC using its good faith, commercially reasonable efforts to reasonably allocate the Pass-Through Costs between DMC and Buyer based upon relative usage and shall provide payment terms consistent with DMC’s payment of such underlying services, including a payment date concurrent with DMC’s ordinary payment for the underlying services. In the event Buyer disagrees with the amounts set forth on an invoice, the Buyer may seek remedies under Section 9.11 (including via subsection (c) thereof initially); provided , however , the foregoing shall not permit Buyer to withhold payments due pursuant to this Section 3.3 . To the extent mutually agreeable, DMC and Buyer may seek to have Buyer directly invoiced for its portion of the goods and services provided under Schedule F by the third party provider, and in such case, Buyer shall directly remit payment to the third party pursuant to the payment terms thereof.

ARTICLE IV

CONDITIONS / DMC AND BUYER RESPONSIBILITIES

4.1 Conditions to DMC Obligations . The Transition Services that DMC shall provide to Buyer hereunder shall be limited exclusively to those services described on Schedule B , except as otherwise agreed by the parties in writing. Furthermore, DMC’s obligation to provide the Transition Services shall be expressly contingent upon Buyer’s satisfaction of the Buyer Responsibilities described in this Article IV .

4.2 DMC Responsibilities . DMC shall retain responsibility for the provision of the Transition Services including, without limitation, the following (collectively, the “ DMC Responsibilities ”):

(i) compensation and benefits, to the extent applicable, provided to the DMC employees, subcontractors and consultants who perform the Transition Services;

 

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(ii) satisfaction or discharge of any and all liabilities related to DMC’s employees, contractors and consultants who perform the Transition Services;

(iii) taking appropriate action to recover from non-compliant third parties and passing on such recovery to Buyer to the extent Buyer has incurred actual losses caused by the non-compliance of such third party; and

(iv) the provision, in a timely manner, of all facilities, personnel and all other resources set forth in Schedule B which are necessary for the provision of the Transition Services.

4.3 Buyer Responsibilities . Buyer shall retain responsibility for all services that are not otherwise provided pursuant to this Agreement including, without limitation, the following (collectively, the “ Buyer Responsibilities ”):

(i) all of the items set forth in Schedule H ;

(ii) corporate services including, but not limited to, legal, tax, treasury, Securities Exchange Commission reporting, government relations, human resources and risk management services and corporate information technology specifically pertaining to the Business and/or Buyer’s employees (including, without limitation, WAN connectivity to factories, cell phone, teleconferencing, etc. for Buyer’s employees, and software maintenance fees for factory specific systems);

(iii) providing timely payment of all fees and costs as required by this Agreement or as mutually agreed to by the parties;

(iv) delivering to DMC, in a timely manner, all reports, data, approvals, consents and other information necessary for DMC to provide the Transition Services;

(v) performance and compliance, in a timely manner, by all Buyer employees, subcontractors and representatives of their respective responsibilities that impact the performance by DMC of the Transition Services, including, without limitation, those items set forth on Schedule H ; and

(vi) providing DMC notice immediately following any modification to any contracts related to the Business which were transferred to Buyer pursuant to the Purchase Agreement that would impact the provision of Transition Services.

ARTICLE V

SERVICE LEVELS

5.1 Service Levels .

(a) Notwithstanding any other provision of this Agreement, DMC shall perform the Transition Services in a manner that is at least consistent in scope and quality with its performance of such services for itself prior to the Closing Date and in any event in accordance with the conditions as set forth on Schedule G-1 attached hereto (the “ Service Levels ”); provided

 

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that DMC makes no representation or commitment with respect to any Service Level to be delivered in relation to product delivery and fill rate. Buyer hereby acknowledges that the DMC financial closing calendar will be the basis for all financial reporting provided to the Buyer during the Transition Period.

(b) Notwithstanding any other provision of this Agreement, Buyer shall perform the Buyer Reciprocal Services in a manner that is at least consistent in scope and quality with the performance of such services by DMC prior to the Closing Date (the “ Buyer Service Level ”).

5.2 Excused Performance .

(a) DMC will be relieved from meeting the Service Levels in the event of any of the following:

(i) Buyer’s breach of the Agreement (or the Purchase Agreement or any other Transaction Documents).

(ii) Service or resource reductions, or product or service architecture changes or specifications or instructions, requested or approved by Buyer and agreed to by the parties or any act or omission attributable or controllable by Buyer (including, without limitation, allocation cuts and new product introductions).

(iii) Buyer’s failure to satisfy any of the Buyer Responsibilities.

(iv) Any act or omission not attributable to or controllable by DMC (including, without limitation, any material forecast inaccuracies and adjustments to inventory levels which are contrary to DMC’s reasonable recommendations).

(v) As otherwise provided in this Agreement, including a Force Majeure Event and specifically including importation holds placed on incoming containers by Homeland Security or other governmental authorities.

(vi) The failure of Buyer to provide the services of any Buyer Transition Provider or to identify an alternative Buyer Transition Provider upon termination of a Buyer Transition Provider upon the circumstances described in Section 2.3 .

(b) Buyer will be relieved from meeting the Buyer Service Levels in the event of any of the following:

(i) DMC’s breach of the Agreement (or the Purchase Agreement or any other Transaction Documents).

(ii) Any act or omission not attributable to or controllable by Buyer.

(iii) As otherwise provided in this Agreement, including a Force Majeure Event and specifically including importation holds placed on incoming containers by Homeland Security or other governmental authorities.

 

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5.3 Failure to Perform .

(a) In the event Buyer brings to the attention of DMC any failure by DMC or a Transition Provider or a Buyer Transition Provider to meet, in whole or in part, a Service Level, the Transition Services Representative of DMC shall promptly (i) investigate and notify Buyer of the cause of the problem, (ii) use commercially reasonable efforts to attempt to correct the problem and to resume meeting the Service Levels and (iii) advise Buyer of the status of the remedial efforts being undertaken with respect to such problems. To the extent such failure is not remedied within a reasonable time after the occurrence of the failure, Buyer may give DMC notice in writing (the “ Notice ”) that a dispute has arisen. By noon (local time) of the sixth (6th) Business Day after the date of the Notice, such dispute shall be referred to the Vice President Finance and Controller of DMC. If such dispute is not resolved by agreement, in writing, between the Parties, by noon (local time) of the sixth (6th) Business Day after the date of the Notice, such dispute shall be referred to the Chief Financial Officer of Buyer and the Executive Vice President, Treasurer and Chief Financial Officer of DMC for resolution. If such executive officers of both Parties are unable to resolve the dispute by noon (local time) of the sixth (6th) Business Day after the referral to them, either Party shall be free to pursue any claim in accordance with Section 9.11 of this Agreement. Such a resolution may include, without limitation, an appropriate adjustment to the fees payable under Article III hereof in connection with any failure of DMC to provide the Transition Services as set forth hereunder; provided , however , the foregoing shall not permit Buyer to withhold payments due pursuant to Article III .

(b) In the event DMC brings to the attention of Buyer any failure by Buyer or a Buyer Transition Provider to meet, in whole or in part, a Buyer Service Level, the Transition Services Representative of Buyer shall promptly (i) investigate and notify DMC of the cause of the problem, (ii) use commercially reasonable efforts to attempt to correct the problem and to resume meeting the Buyer Service Levels and (iii) advise DMC of the status of the remedial efforts being undertaken with respect to such problems. To the extent such failure is not remedied within a reasonable time after the occurrence of the failure, DMC may give Buyer notice in writing (the “ DMC Notice ”) that a dispute has arisen. By noon (local time) of the sixth (6th) Business Day after the date of the DMC Notice, such dispute shall be referred to the Vice President Finance and Controller of Buyer. If such dispute is not resolved by agreement, in writing, between the Parties, by noon (local time) of the sixth (6th) Business Day after the date of the Notice, such dispute shall be referred to the Chief Financial Officer of Buyer and the Executive Vice President, Treasurer and Chief Financial Officer of DMC for resolution. If such executive officers of both Parties are unable to resolve the dispute by noon (local time) of the sixth (6th) Business Day after the referral to them, either Party shall be free to pursue any claim in accordance with Section 9.11 of this Agreement. Such a resolution may include, without limitation, an appropriate adjustment to the fees payable under Article III hereof in connection with any failure of Buyer to provide the Buyer Transition Services as set forth hereunder.

ARTICLE VI

TERM AND TERMINATION

6.1 Term . The term of this Agreement shall begin on the Closing Date. Transition Services shall be provided by DMC hereunder until the last day of the Transition Period, unless otherwise provided herein.

 

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6.2 Termination by Buyer .

(a) Buyer may terminate this Agreement, or any specific Transition Service or category of Transition Services, for any reason, upon six (6) months prior written notice of such termination to DMC. Upon termination under this Section 6.2(a) of any particular element of the Transition Services, all remaining obligations with regard to the other elements of the Transition Services under this Agreement shall continue; provided , however , when Buyer requests DMC to terminate a particular Transition Service, DMC shall identify for Buyer in writing any other Transition Services that will be terminated because they are not capable of being segregated from the Transition Services being terminated and can no longer be practically provided after the termination in question. If there are such other Transition Services that must also be terminated, DMC shall not proceed with the requested termination without further approval from Buyer.

(b) Buyer may terminate this Agreement upon written notice of such termination to DMC, in the event of a material breach by DMC of this Agreement or the Purchase Agreement; provided however, such termination shall become effective thirty (30) days from the date such notice of termination is given unless, within said thirty (30) day period, such material breach has been cured.

6.3 Termination by DMC . DMC may terminate this Agreement upon written notice of such termination to Buyer in the event of a material breach of this Agreement or the Purchase Agreement by Buyer; provided however, such termination shall become effective thirty (30) days from the date such notice of termination is given unless, within said thirty (30) day period such material breach has been cured.

6.4 No Revival . Notwithstanding any of the foregoing, any action of DMC or Buyer, including the performance of any of the Transition Services by DMC or the payment of invoices by Buyer, after notice of termination is given hereunder, shall not operate as a renewal or revival of this Agreement or as a waiver of such termination.

ARTICLE VII

INDEMNIFICATION

7.1 Indemnification By Buyer . Buyer agrees to hold harmless and indemnify DMC and its directors, officers, employees, agents and permitted assignees (hereinafter collectively referred to as “ DMC Indemnitees ”) from and against any and all liabilities, losses and expenses (including, but not limited to, reasonable attorneys’ fees) incurred in connection with claims, demands, lawsuits, judgments, penalties or actions, which (a) relate directly to Buyer’s grossly negligent breach of any of its covenants or obligations under this Agreement, including without limitation, the provision of, or the failure to perform, the Buyer Reciprocal Services or (b) is otherwise directly related to Buyer’s gross negligence or willful misconduct, except to the extent that DMC is directly responsible therefor. Buyer shall indemnify and hold harmless DMC for any claims in the nature of personal injury, occupational health and similar matters brought by any employee, visitor, invitee or similar person of Buyer for any incident which occurs on the premises for which space is being made available by DMC to Buyer or any of its designees pursuant to this Agreement.

 

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7.2 Indemnification By DMC . DMC agrees to hold harmless and indemnify Buyer and its directors, officers, employees, agents and permitted assignees (hereinafter collectively referred to as “ Buyer Indemnitees ”) from and against any and all liabilities, losses and expenses (including, but not limited to, reasonable attorneys’ fees) incurred in connection with claims, demands, lawsuits, judgments, penalties or actions, which (a) relate directly to DMC’s grossly negligent breach of any of its covenants or obligations under this Agreement, including without limitation, the provision of, or the failure to perform, the Transition Services under Article II hereof or (b) is otherwise directly related to DMC’s gross negligence or willful misconduct, except to the extent that Buyer is directly responsible therefor.

7.3 Procedure for Indemnity .

(a) Notice of Claims . If a claim (a “ Claim ”) is to be made by a Party entitled to indemnification hereunder against the indemnifying Party, the Party claiming such indemnification shall, give written notice (a “ Claim Notice ”) to the indemnifying Party as soon as practicable after the Party entitled to indemnification becomes aware of any fact, condition or event which may give rise to damages for which indemnification may be sought under this Article VII, provided however, that the failure of any indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except to the extent that the indemnifying Party demonstrates that the defense of such claim is prejudiced by the indemnified Party’s delay or failure to give such notice.

(b) Defense of Third-Party Claims . If any lawsuit or enforcement action is filed by a third party against any Party entitled to the benefit of indemnity hereunder with respect thereto, a Claim Notice thereof shall be given to the indemnifying Party as promptly as practicable (and, in any event, within fifteen (15) calendar days after the service of the citation or summons). The failure of any indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except to the extent that the indemnifying Party demonstrates that the defense of such claim is prejudiced by the indemnified Party’s delay or failure to give such notice. After such notice, if the indemnifying Party shall acknowledge, in writing, to the indemnified Party that the indemnifying Party is obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the indemnifying Party shall be entitled, if it elects to do so, at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage legal counsel of its own choice, but, in any event, reasonably acceptable to the indemnified Party, to handle and defend the same unless the named parties to such action or proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and the indemnified Party has been advised by counsel that there may be one or more legal defenses available to such indemnified Party that are different from or additional to those available to the indemnifying Party, in which event, the indemnified Party shall be entitled, at the indemnifying Party’s cost, risk and expense, to separate counsel of its own choosing. The indemnifying Party shall not, without the written consent of the indemnified Party, which shall not be unreasonably withheld, conditioned or delayed, (i) settle or compromise any Claim or consent to the entry of any judgment which does not include an unconditional written release, by the claimant or plaintiff, of the indemnified Party, from all liability in respect of such Claim or (ii) settle or compromise any Claim if the settlement imposes equitable remedies or material obligations on the indemnified Party other than financial obligations for which such indemnified Party will be indemnified hereunder. No Claim which is

 

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being defended in good faith by the indemnifying Party in accordance with the terms of this Agreement shall be settled or compromised by the indemnified Party without the written consent of the indemnifying Party, which consent shall not be unreasonably withheld or delayed.

(c) If the indemnifying Party fails to respond with respect to such lawsuit or action within thirty (30) calendar days after receipt of the Claim Notice, the indemnified Party against which such lawsuit or action has been asserted will (upon delivering notice to such effect to the indemnifying Party) have the right to undertake, at the indemnifying Party’s cost and expense, the defense, compromise or settlement of such lawsuit or action on behalf of and for the account and risk of the indemnifying Party; provided , however , that such lawsuit or action shall not be compromised or settled without the written consent of the indemnifying Party, which consent shall not be unreasonably withheld or delayed. If the indemnified Party settles or compromises such lawsuit or action without the prior written consent of the indemnifying Party, the indemnifying Party will bear no liability hereunder for or with respect to such lawsuit or action, unless the indemnifying Party unreasonably withheld consent. In the event either Party assumes the defense of a particular lawsuit or action in the manner contemplated above, the Party assuming such defense will keep the other Party reasonably informed of the progress of any such defense, compromise or settlement. The indemnifying Party shall be liable for any settlement of any action effected pursuant to and in accordance with this Article VII and for any final judgment (subject to any right of appeal), and the indemnifying Party agrees to indemnify and hold harmless the indemnified Party from and against any damages for which indemnification may be sought under this Article VII by reason of such settlement or judgment.

7.4 Limitation on Indemnity .

(a) To the extent that any claim, action, demand or lawsuit that is subject to indemnification under this Agreement is covered by insurance, the amount of any indemnity payment shall be net of the Net Proceeds of any insurance policy paid to the indemnified Party with respect to such claim, action, demand or lawsuit. For purposes of this Section 7.4, “ Net Proceeds ” shall mean the insurance proceeds actually received, less any expenses of recovery, deductibles, and/or co-payments. If any amounts are reimbursed under insurance coverage, (i) concurrently with indemnification under this Article VII, the indemnified amount shall be offset by an amount equal to the Net Proceeds received under insurance coverage or (ii) subsequent to indemnification under this Article VII, the indemnified Party shall reimburse the indemnifying Party in an amount equal to the Net Proceeds subsequently received under insurance coverage.

(b) An indemnified Party shall take commercially reasonable steps to mitigate any claim, action, demand or lawsuit upon becoming actually aware of any event which will give rise to an indemnification claim. Amounts due to any indemnified Party pursuant to this Article VII shall be determined after taking into account any indemnity, contribution or other similar payment actually received by the indemnified Party from any third party with respect thereto.

(c) The maximum aggregate liability obligation of DMC to the Buyer Indemnitees (including liabilities of DMC for costs, expenses and attorneys’ fees paid or incurred in connection therewith or in connection with the curing of any and all breaches of DMC’s covenants and agreements) collectively pursuant to Section 7.2 shall not exceed an amount equal to the total fees accrued for Transition Services pursuant to this Agreement during the Transition

 

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Period. The maximum aggregate liability obligation of Buyer to the DMC Indemnitees (including liabilities of Buyer for costs, expenses and attorneys’ fees paid or incurred in connection therewith or in connection with the curing of any and all breaches of Buyer’s covenants and agreements) collectively pursuant to Section 7.1 in respect of Buyer Reciprocal Services shall not exceed an amount equal to the total fees accrued for Buyer Reciprocal Services pursuant to this Agreement during the Transition Period. The indemnification provided in this Article VII shall be the sole and exclusive remedy for any claims covered by Sections 7.1 and 7.2 hereof. Notwithstanding the foregoing, nothing herein shall prevent any of the Parties from bringing (i) an equitable action to enforce a covenant or obligation or (ii) an action based upon allegations of fraud with respect to the other Party in connection with this Agreement.

7.5 Disclaimer of Consequential Damages . Neither Party shall be liable to the other under this Agreement for any indirect, special, or consequential damages or lost profits hereunder. In addition, in no event shall either party be liable for any punitive or exemplary damages of any kind. For purposes of clarity only, and without limiting the generality of the foregoing, the indemnifying Party shall be responsible for direct damages, including without limitation, reasonable attorneys’ fees.

7.6 Disclaimer of Warranties . EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER DMC, WITH RESPECT TO THE TRANSITION SERVICES, NOR BUYER, WITH RESPECT TO THE BUYER RECIPROCAL SERVICES, MAKES ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND WHATSOEVER, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR BY OPERATION OF LAW OR OTHERWISE, AND EACH EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ORIGINALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND SUITABILITY OF THE SERVICES.

ARTICLE VIII

CONFIDENTIALITY

8.1 Confidentiality .

(a) DMC acknowledges that it shall receive or have access to Buyer Confidential Information in the course of performing its obligations under this Agreement, and further acknowledges that such Buyer Confidential Information is proprietary and valuable to Buyer. DMC hereby agrees: (i) to observe the same level of confidentiality as it uses for its own confidential information with respect to such Buyer Confidential Information (or any portion thereof); (ii) not to disclose, or permit any third party or entity access to, such Buyer Confidential Information (or any portion thereof) without prior written permission of Buyer, except as required by law, regulation, or legal process; (iii) not to utilize, except as necessary in the provision of the Transition Services, such Buyer Confidential Information (or any portion thereof); and (iv) to ensure that all of its employees who receive access to such Buyer Confidential Information are advised of the confidential and proprietary nature thereof and are prohibited from copying, utilizing or disclosing such Buyer Confidential Information, except as permitted or required under this Agreement.

 

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(b) Buyer acknowledges that it shall receive or have access to DMC Confidential Information in the course of performing its obligations under this Agreement, and further acknowledges that such DMC Confidential Information is proprietary and valuable to DMC. Buyer hereby agrees: (i) to observe the same level of confidentiality as it uses for its own confidential information with respect to such DMC Confidential Information (or any portion thereof); (ii) not to disclose, or permit any third party or entity access to, such DMC Confidential Information (or any portion thereof) without prior written permission of DMC, except as required by law, regulation, or legal process; (iii) not to utilize, except as permitted or required under this Agreement, such DMC Confidential Information (or any portion thereof); and (iv) to ensure that all of its employees who receive access to such DMC Confidential Information are advised of the confidential and proprietary nature thereof and are prohibited from copying, utilizing or disclosing such DMC Confidential Information, except as permitted or required under this Agreement.

8.2 No Less Restrictive Standards . Without limiting the foregoing, DMC agrees to employ, with regard to Buyer Confidential Information, and Buyer agrees to employ, with regard to DMC Confidential Information, procedures that are no less restrictive than the procedures used by it to protect its own confidential and proprietary information of similar sensitivity (and that, in no event, are less restrictive than reasonable procedures).

8.3 Judicial or Governmental Order . If DMC is requested to disclose any Buyer Confidential Information, or if Buyer is requested to disclose any DMC Confidential Information, pursuant to any judicial or governmental order, the Party requested to disclose such confidential information shall use commercially reasonable efforts to first give the Party whose confidential information is requested written notice of the request and sufficient opportunity to contest the order.

8.4 Survival of Confidentiality . The Parties’ obligations under this Article VIII shall survive any expiration or termination of this Agreement for a period of three (3) years.

8.5 Confidentiality of Pre-Closing Information . Notwithstanding anything to the contrary herein, the Parties’ obligations with respect to any Confidential Information (as such term is defined in the Purchase Agreement) that either Party receives prior to the Closing Date shall be governed by the terms of Section 5.3(b) of the Purchase Agreement.

ARTICLE IX

MISCELLANEOUS

9.1 Assignment . Neither Party may assign any right or obligation under this Agreement, unless (i) it has obtained the other Party’s prior written consent to the assignment, or (ii) the assignment is to an Affiliate of such Party. This Agreement is binding on and inures to the benefit of the Parties and their permitted successors and assigns.

9.2 Notices . Any notice or other instrument or thing required or permitted to be given, served or delivered to any of the Parties hereto shall be in writing and shall be deemed to have been given, served or delivered (a) when personally delivered, (b) on the Business Day of confirmed receipt by the recipient after delivery via overnight courier service guaranteeing next-Business Day delivery, or (c) on the date of facsimile transmission if transmitted prior to 5:00

 

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p.m. local time of the recipient on a Business Day (provided that confirmation of receipt of such telecopy transmission is confirmed by the recipient on such date), addressed as follows:

If to DMC, addressed to:

Del Monte Corporation

One Maritime Plaza

San Francisco, CA 94111

Attention: General Counsel

Telephone: 415.247.3567

Facsimile: 415.247.3263

With a copy to:

Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, NY 10017-3954

Attention: Marni Lerner

Telephone: 212.455.3443

Facsimile: 212. 455.2502

If to Parent or Buyer, addressed to:

Del Monte Foods, Inc.

Del Monte Pacific Limited

17 Bukit Pasoh Road

Singapore 089831

Republic of Singapore

Attention:   Managing Director and Chief Executive Officer

Telephone: +632 856 2888

Facsimile:   +65 6221 9477

With copy to: Chief Legal Counsel

Facsimile:   +632 856 2628

With a copy to:

Kramer Levin Naftalis & Frankel LLP

1177 Avenue of the Americas

New York, NY 10022

Attn: Jay A. Neveloff

          Peter G. Smith

Telephone: (212) 715-9100

Facsimile: (212) 715-8000

or to such other place and with such other copies as a Party may designate as to itself by written notice to the others.

 

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9.3 Governing Law . This Agreement (and any claims, causes of action or disputes that may be based upon, arise out of or relate hereto or thereto, to the transactions contemplated hereby and thereby, to the negotiation, execution or performance hereof or thereof, or to the inducement of any party to enter herein and therein, whether for breach of contract, tortious conduct or otherwise and whether predicated on common law, statute or otherwise) shall in all respects be governed by, and construed in accordance with, the Laws of the State of Delaware, including all matters of construction, validity and performance, in each case without reference to any conflict of Law rules that might lead to the application of the Laws of any other jurisdiction.

9.4 Entire Agreement . This Agreement, including the Schedules hereto, and the other agreements and written understandings referred to herein or otherwise entered into by the Parties hereto on the date hereof (including without limitation, the Purchase Agreement), constitutes the entire agreement and understanding of the Parties and supersedes all other prior covenants, agreements, undertakings, obligations, promises, arrangements, communications, representations and warranties, whether oral or written, by any Party hereto or by any director, officer, employee, agent, Affiliate or Representative of any Party hereto.

9.5 Amendment or Modification . This Agreement may not be amended except in an instrument, in writing, signed on behalf of each of the Parties. No amendment, supplement, modification or waiver of this Agreement shall be binding unless executed in writing by the Party or Parties to be bound thereby.

9.6 Waiver . Except where a specific period for action or inaction is provided herein, neither the failure nor any delay on the part of any Party in exercising any right, power or privilege under this Agreement or the documents referred to in this Agreement shall operate as a waiver thereof, nor shall any waiver on the part of any Party of any such right, power or privilege, nor any single or partial exercise of any such right, power or privilege, preclude any other or further exercise thereof or the exercise of any other such right, power or privilege. The failure of a Party to exercise any right conferred herein, within the time required, shall cause such right to terminate with respect to the transaction or circumstances giving rise to such right, but not any such right arising as a result of any other transactions or circumstances.

9.7 Cumulative Remedies . All rights and remedies of any Party hereto are cumulative of each other and of every other right or remedy such Party may otherwise have, at law or in equity, and the exercise of one or more rights or remedies shall not prejudice or impair the concurrent or subsequent exercise of other rights or remedies.

9.8 Multiple Counterparts . This Agreement may be executed in two or more counterparts (including via facsimile or other electronic means), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

9.9 Severability . If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced under any Law or as a matter of public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any party. Notwithstanding the foregoing, upon such

 

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determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties to this Agreement shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the greatest extent possible.

9.10 Titles . The titles, captions or headings of the Articles and Sections herein are inserted for convenience of reference only and are not intended to be a part of or to affect or restrict the meaning or interpretation of this Agreement.

9.11 Arbitration .

(a) It is understood and agreed between the Parties hereto that any and all claims, grievances, demands, controversies, causes of action or disputes, of any nature whatsoever (including, but not limited to, tort and contract claims, and claims upon any law, statute, order or regulation) (hereinafter “ Disputes ”), arising out of, in connection with, or in relation to (i) this Agreement, or (ii) questions of arbitrability under this Agreement, shall be resolved by final, binding, nonjudicial arbitration in accordance with the Federal Arbitration Act, 9 U.S.C. Section 1, et seq. pursuant to the following:

(i) Any Party may send another Party written notice identifying the matter in dispute and invoking the procedures of this Section (the “ Dispute Notice ”). Within fourteen (14) days after delivery of the Dispute Notice, the Parties involved in the dispute shall meet at a mutually agreed upon location in Wilmington, Delaware for the purpose of determining whether they can resolve the dispute themselves by written agreement, and, if not, whether they can agree upon an impartial third party arbitrator (the “ Arbitrator ”) to whom to submit the matter in dispute for final and binding arbitration.

(ii) If such Parties fail to resolve the dispute, by written agreement, or agree on the Arbitrator within the later of fourteen (14) days after any such initial meeting, or within thirty (30) days from the delivery of the Dispute Notice, any such Party may make written application to the Judicial Arbitration and Mediation Services (“ JAMS ”), in Wilmington, Delaware for the appointment of a single Arbitrator to resolve the dispute by arbitration. At the request of JAMS, the Parties involved in the dispute shall meet with JAMS at its offices within ten (10) calendar days of such request to discuss the dispute and the qualifications and experience which each Party respectively believes the Arbitrator should have; provided , however , that the selection of the Arbitrator shall be the exclusive decision of JAMS and shall be made within thirty (30) days of the written application to JAMS.

(iii) Within thirty (30) days of the selection of the Arbitrator, the Parties involved in the dispute shall meet in Wilmington, Delaware with such Arbitrator at a place and time designated by such Arbitrator after consultation with the Parties and present their respective positions on the dispute. Each Party shall have no longer than one (1) day to present its position, the entire proceedings before the Arbitrator shall be no more than three (3) consecutive days, and the decision of the

 

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Arbitrator shall be made in writing no more than thirty (30) days following the end of the proceeding. Such an award shall be a final and binding determination of the dispute and shall be fully enforceable as an arbitration decision in any court having jurisdiction and venue over such Parties. The prevailing Party (as determined by the Arbitrator) shall in addition be awarded by the Arbitrator such Party’s own legal fees and expenses in connection with such proceeding. The non-prevailing Party (as determined by the Arbitrator) shall pay the Arbitrator’s fees and expenses.

(b) By signing this Agreement, the Parties hereto are giving up their respective rights to a jury trial.

(c) Notwithstanding anything to contrary herein, the Parties agree to generally use their commercially reasonable, good faith efforts to resolve any disagreement with respect to the operation of this Agreement or the provision of the Transition Services prior to seeking a claim or other relief under this Section 9.11 .

9.12 Independent Contractor Relationship . For purposes of this Agreement, DMC shall be deemed an independent contractor of Buyer with respect to Transition Services, and Buyer shall be deemed an independent contractor of DMC with respect to Buyer Reciprocal Services. Nothing contained in or performed pursuant to this Agreement shall be construed as creating a partnership, agency or joint venture between DMC and Buyer and, except as may be otherwise expressly provided in this Agreement, neither Party shall not become bound by any representation, act or omission of the other Party.

9.13 Subcontracting . Subject to the terms herein, including without limitation, Section 5.1 , DMC may reasonably use subcontractors, based upon the same standards DMC uses in hiring its own subcontractors, to perform general, non-Business specific Transition Service without the prior written consent of Buyer. Any subcontract made by DMC will incorporate by reference all the terms of this Agreement, and DMC indemnifies Buyer and its Affiliates from such subcontractor’s breach of any of the terms of this Agreement (including without limitation, Article VIII ) or such subcontractor’s gross negligence or willful misconduct.

9.14 Force Majeure . The Parties hereto shall not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to (i) acts of God, public enemy, civil war, weather, crop failure, or strikes, lockouts or labor disputes (outside of any DMC facility), or any other cause beyond the Parties’ reasonable control that makes performance impracticable or (ii) a work stoppage or strike at a DMC facility which lasts for more than one (1) week (each, a “ Force Majeure Event ”); provided , however , the foregoing does not effect Section 2.4 . DMC and Buyer agree to notify each other promptly upon the occurrence of any such cause and to carry out this Agreement as promptly as practicable after such cause is terminated.

9.15 No Third Party Beneficiaries . Except for the provisions of Article VII relating to indemnification, which are also for the benefit of the indemnified parties set forth therein, nothing in this Agreement, express or implied, is intended to or shall confer upon any person (other than DMC, Buyer and their respective successors or permitted assigns) any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement,

 

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and no person (other than as so specified) shall be deemed a third party beneficiary under or by reason of this Agreement.

9.16 Guarantee . Parent hereby guarantees unconditionally the payment and performance of all Buyer obligations and agreements under this Agreement, including, without limitation, any obligation of Buyer with respect to any claim brought by DMC arising out of or related to this Agreement. Parent’s obligations are unconditional irrespective of any circumstances which might otherwise constitute, by operation of law, a discharge of a guarantor and it shall not be necessary for DMC to institute or exhaust any remedies or causes of action against Seller or any other Person as a condition to the obligations of Parent hereunder.

[ Signature Page Follows ]

 

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IN WITNESS WHEREOF, each Party hereto has caused this Transition Services Agreement to be duly executed on its behalf, by an officer thereunto duly authorized, all as of the day and year first above written.

 

DEL MONTE CORPORATION
By:   

/s/ Larry E. Bodner

  Name:   Larry E. Bodner
  Title:   Executive Vice President, Chief Financial Officer and Treasurer
DEL MONTE FOODS, INC.
By:  

/s/ Joselito D. Campos, Jr.

  Name:   Joselito D. Campos, Jr.
  Title:   President
Solely for purposes of Section 9.16 :
DEL MONTE PACIFIC LIMITED
By:  

/s/ Edgardo M. Cruz, Jr.

  Name:   Edgardo M. Cruz, Jr.
  Title:   Director

[Signature Page to Transition Services Agreement]

Exhibit 10.3

EXECUTION VERSION

TRANSITIONAL TRADEMARK LICENSE AGREEMENT

This TRANSITIONAL TRADEMARK LICENSE AGREEMENT (“ Agreement ”) is effective as of February 18, 2014 by and between DEL MONTE FOODS, INC. (formerly known as Del Monte Foods Consumer Products, Inc.), a Delaware corporation (“ Licensor ”) and DEL MONTE CORPORATION, a Delaware corporation (“ Licensee ”, and together with Licensor, the “ Parties ”, and each, a “ Party ”).

RECITALS

WHEREAS, pursuant to that certain Purchase Agreement (the “ Purchase Agreement ” – capitalized terms used but not defined herein shall have the meaning therein) dated October 9, 2013 among Licensee, Del Monte Foods Consumer Products, Inc., a Delaware corporation (the “ Acquiror ”) and, solely for purposes of Section 11.20 therein, Del Monte Pacific Limited, a corporation established under the laws of the British Virgin Islands, the Acquiror purchased all of the issued and outstanding equity interests of the Transferred Entities and certain assets of the Company Related to the Business.

WHEREAS, in connection with the Purchase Agreement, on the Closing Date, Licensee will transfer to Licensor all of its entire right, title and interest in the trademarks and tradenames listed on Schedule A hereto, along with applicable registrations and applications for any of the foregoing, all common law rights related thereto, and all goodwill associated therewith (the “ Licensed Marks ”).

WHEREAS, the Licensee wishes to obtain a license to use the Licensed Marks for a transitional period after the Closing, and the Licensor is willing to grant such a license.

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein, and for other good and valuable consideration set forth in the Purchase Agreement and subject to the terms and conditions set forth herein, Licensor and Licensee hereby agree as follows:

AGREEMENT

1. LICENSE

1.1 Grant . Subject to the terms of this Agreement, Licensor hereby grants to Licensee and its Affiliates, effective as of the Closing Date, a non-exclusive, non-sublicensable (except as set forth in Section 1.2 herein), non-assignable (except as set forth in Section 3.1 herein), worldwide, royalty-free, fully paid up license to use the Licensed Marks as Trademarks in connection with the operation, advertisement, marketing and promotion of Licensee’s businesses in a manner consistent with Licensee’s and its Affiliates’ use of the Licensed Marks prior to the Closing Date, solely for the time periods below. Licensee and its Affiliates acknowledge that the license in this Section 1.1 is transitional in nature, and that Licensee and its Affiliates shall use commercially reasonable efforts to transition away from substantially all uses of the Licensed Marks promptly.


(a) Licensee must file (or cause to be filed) to change all of its and its Affiliates’ corporate names, trade names, d/b/a names and similar names to names that do not contain any Licensed Marks, within thirty (30) days after the Closing Date, and promptly and diligently prosecute all such changes;

(b) Licensee must remove (or cause to be removed) all uses of Licensed Marks as Trademarks from all of its and its Affiliates’ websites and electronic media (excluding

electronic versions of printed brochures, catalogues, operation and instruction manuals and datasheets that are made available for download) that are visible to third parties and under Licensee’s or its Affiliates’ possession or control within one-hundred-eighty (180) days after the Closing Date;

(c) Licensee must remove (or cause to be removed) all Licensed Marks from any of its or its Affiliates’ heavy machinery, tools, equipment, and substantially permanent building signage (including etched glass, engraved marble, and the like) (i) that are visible to third parties, within one (1) year from the Closing Date or (ii) that are not visible to third parties, when such items are replaced in the ordinary course of business;

(d) Licensee must discontinue (or cause to be discontinued) the use of all of its or its Affiliates’ molds, tools and dyes that imprint or stamp any Licensed Marks into products visible to third parties within one (1) year from the Closing Date; and

(e) Licensee and its Affiliates must cease all other uses of the Licensed Marks within one (1) year after the Closing Date, or as mutually agreed by the Parties, provided , however , that Licensee may continue to distribute and sell in the ordinary course of business inventory and product bearing the “Del Monte Pet Products” tradename for a period of up to twenty-four (24) months after the Closing Date so long as such inventory and products were packed within one (1) year of the Closing Date.

1.2 Sublicensing . Licensee and its Affiliates may sublicense the license in Section 1.1 without Licensor’s consent, solely to advertisers, distributors, vendors, dealers, suppliers, co-packers and other Persons for use in connection with the operation of Licensee’s and its Affiliates’ businesses, but not for such Persons’ independent use. Licensee and its Affiliates shall terminate such authorization or permission granted according to the deadlines set forth in Section 1.1. Licensee shall be liable to Licensor for any act or omission by a sublicensee that would constitute a breach hereof if committed by Licensee.

1.3 Website Disclaimer . Licensor, Licensee and each of their Affiliates shall display on their respective websites a mutually-agreed upon disclaimer as to their lack of affiliation with each other for six (6) months after the Closing Date.

1.4 Fair Use . Notwithstanding anything in this Agreement to the contrary, Licensee and its Affiliates may use the Licensed Marks at all times after the Closing Date (i) in a neutral, non-trademark manner to describe the history of their businesses; (ii) on any legal documents, business correspondence and similar items that are not consumer-facing or (iii) as required or permitted by applicable Law.

 

2


1.5 Consideration . The Parties agree that the consideration for the license in Section 1.1 is a portion of the consideration set forth in the Purchase Agreement, and that no further royalties are therefore due under this Agreement.

2. OWNERSHIP / QUALITY CONTROL.

2.1 Reservation of Rights . All rights in the Licensed Marks not expressly granted to Licensee and its Affiliates herein are reserved to Licensor. As between the Parties, Licensor owns all right, title and interest in the Licensed Marks, and Licensee shall not contest or challenge Licensor’s rights therein. All use of the Licensed Marks by Licensee and its Affiliates shall inure to the benefit of Licensor.

2.2 Quality Standards . Licensee agrees to use the same quality standards that Licensee used prior to the Closing Date, use the Licensed Marks in compliance with all applicable Laws, and agrees to use all notices and legends with the Licensed Marks as required by applicable Law or as reasonably requested by Licensor.

3. MISCELLANEOUS.

3.1 Assignment . Licensor may assign this Agreement to any Person who acquires the Licensed Marks. Licensee may assign this Agreement to any Person who acquires Licensee or its Affiliates or any Person who acquires a business being licensed herein. Further, each Party may assume this Agreement in bankruptcy. All other assignments of this Agreement by a Party require the prior written consent of the non-assigning Party, which will not be unreasonably withheld. Any purported transaction in violation of this Section 3.1 shall be null and void ab initio and of no force and effect. In the event of a permitted assignment, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.

3.2 Purchase Agreement Provisions . The provisions of Sections 11.5 (Severability), 11.6 (Entire Agreement), 11.8 (No Third-Party Beneficiaries), 11.9 (Amendment), 11.11 (Specific Performance), 11.12 (Governing Law), 11.14 (Rules of Construction), 11.15 (Counterparts) and 11.16 (Waiver of Jury Trial) of the Purchase Agreement are incorporated by reference into this Agreement, mutatis mutandis . To the extent that any provision of this Agreement conflicts or is inconsistent with the terms of the Purchase Agreement, this Agreement shall govern.

3.3 Notices . All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by facsimile or by email to the respective parties at the following addresses (or at such other address for a party as shall be specified to the other party in a notice given in accordance with this Section 3.3):

 

  (i) if to Licensee, to:

Del Monte Corporation

One Maritime Plaza

 

3


  San Francisco, CA 94111

Attention:   General Counsel

Telephone:  (415) 247-3567

Facsimile:   (415) 247-3263

Email:         Tim.Ernst@delmonte.com

(ii) if to the Licensor, to:

Del Monte Foods, Inc.

One Maritime Plaza

Suite 2500

San Francisco, CA 94111

Attention: Chief Executive Officer

with copies to:

Del Monte Pacific Limited

10/F, JY Campos Centre

9 th Avenue cor. 30 th Street

Bonifacio Global City

Taguig City 1634

Philippines

Attention:    Managing Director and Chief Executive Officer

Kramer Levin Naftalis & Frankel LLP

1177 Avenue of the Americas

New York, NY 10036

Attention:     Jay A. Neveloff

                     Peter G. Smith

Telephone:   (212) 715-9100

Facsimile:    (212) 715-8000

Email:          jneveloff@kramerlevin.com

                    psmith@kramerlevin.com

3.4. Infringement . Licensee shall notify Licensor promptly upon actual knowledge of: (a) any unauthorized use of a Licensed Mark by any Person; or (b) any allegations that use of a Licensed Mark by Licensee, its Affiliates, or any Person authorized thereby infringes or otherwise violates the rights of any Person.

3.5 Termination . The license granted under this Agreement shall be deemed automatically terminated with respect to each manner of use of the Licensed Marks upon the last day of the time period corresponding to such use as set forth herein. Additionally, this Agreement may be terminated by Licensor upon notice to Licensee if there shall occur a material breach of this Agreement by Licensee, its Affiliates, or any Person authorized thereby.

[ Remainder of page intentionally left blank ]

 

 

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IN WITNESS WHEREOF, Licensor and Licensee have caused this Agreement to be executed as of the day and year first above written.

 

DEL MONTE FOODS, INC.

By:

 

/s/ Joselito D. Campos, Jr.

Name:   Joselito D. Campos, Jr.
Title:   President
DEL MONTE CORPORATION
By:  

/s/ Timothy S. Ernst

Name:   Timothy S. Ernst
Title:   Vice President, General Counsel and
  Secretary

[Signature Page to Transitional Trademark License]


Schedule A

Licensed Marks

See attached.

Exhibit 99.1

DEL MONTE PACIFIC LIMITED COMPLETES PURCHASE OF DEL MONTE FOODS’

CONSUMER PRODUCTS BUSINESS

(SINGAPORE/MANILA AND SAN FRANCISCO) February 18, 2014 – Del Monte Pacific Limited (“DMPL”) (Bloomberg: DELM SP, DMPL PM) today announced that it has closed, through a subsidiary, the purchase of Del Monte Foods’ (“DMF”) Consumer Products business for US$1.675 billion, after receiving associated regulatory approvals and shareholder consent and completing customary closing conditions.

Under the terms of the agreement, DMPL has purchased DMF’s Consumer Products brands, including food product brands Del Monte ® , Contadina ® , College Inn ® , S&W ® and certain assets, and assumes certain liabilities related to DMF’s consumer food business in the U.S. as well as equity interests in certain South American subsidiaries from DMF.

The acquisition expands DMPL’s consumer products portfolio with a profitable, branded consumer products business, and provides access to the U.S., one of the few markets where DMPL did not previously have a direct presence or brands. DMPL’s U.S. consumer foods business takes on the name Del Monte Foods, Inc. (DMFI), consistent with the purchase agreement.

The sale of its Consumer Products business allows the former Del Monte Foods to re-launch as a new company focused solely on the pet products market, where the company has strong market positions and leading brands including Meow Mix ® , Kibbles ‘n Bits ® , Milk-Bone ® , 9Lives ® , Natural Balance ® , Pup-Peroni ® , Gravy Train ® , Nature’s Recipe ® , Canine Carry Outs ® , Milo’s

Kitchen ® and other brand names.

Morgan Stanley & Co LLC and Centerview Partners acted as financial advisors and Simpson Thacher & Bartlett LLP acted as legal advisor to Del Monte Foods.

Perella Weinberg Partners LLC served as lead financial advisor, and Citibank as a financial advisor to DMPL, in connection with the transaction. Citibank and Morgan Stanley are providing committed financing to DMPL’s acquisition subsidiary, while two leading Philippine banks, BDO Capital and Investment Corp. and Bank of the Philippine Islands, are providing committed financing to DMPL to fund the transaction. Kramer Levin Naftalis & Frankel LLP is acting as legal advisor to DMPL.

About Del Monte Pacific Limited ( www.delmontepacific.com )

Dual listed on the Mainboard of the Singapore Exchange and the Philippine Stock Exchange, Del Monte Pacific Limited (Bloomberg: DELM SP/ DMPL PM) is a group of companies that caters to today’s consumer needs for premium quality, healthy food and beverage products. It innovates, produces, markets and distributes its products worldwide.

The Group owns the Del Monte brand for processed products in the Philippines where it enjoys leading market shares for canned pineapple juice and juice drinks, canned pineapple and

 

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tropical mixed fruits, tomato sauce, spaghetti sauce and tomato ketchup. Del Monte Pacific also owns another premium brand, S&W, globally except the Americas, Australia and New Zealand.

As with Del Monte, S&W originated in the USA in the 1890s as a producer and marketer of premium quality processed fruit and vegetable products.

The Group owns approximately 93% of a holding company that owns 50% of FieldFresh Foods Private Limited in India (www.fieldfreshfoods.in). FieldFresh markets Del Monte-branded processed products in the domestic market and FieldFresh-branded fresh produce. Del Monte Pacific’s partner in FieldFresh India is the well-respected Bharti Enterprises, which owns one of the largest conglomerates in India.

Del Monte Pacific holds the exclusive rights to produce and distribute processed food and beverage products under the Del Monte brand in the Indian subcontinent and Myanmar. With a 23,000-hectare pineapple plantation in the Philippines, 700,000-ton processing capacity and a port beside the Cannery, Del Monte Pacific’s subsidiary, Del Monte Philippines, operates the world’s largest fully-integrated pineapple operation. It is proud of its long heritage of 87 years of pineapple growing and processing. It has long-term supply agreements with some of the Del Monte trademark owners and licensees around the world.

Del Monte Pacific and its subsidiaries are not affiliated with other Del Monte companies in the world, including Fresh Del Monte Produce Inc, Del Monte Canada, Del Monte Asia Pte Ltd and these companies’ affiliates.

Del Monte Pacific is 67%-owned by NutriAsia Pacific Ltd (NPL). NPL is owned by the NutriAsia Group of Companies which is majority-owned by the Campos family of the Philippines. The NutriAsia Group is the market leader in the liquid condiments, specialty sauces and cooking oil market in the Philippines. To subscribe to our email alerts, please send a request to jluy@delmontepacific.com .

Contacts

Jennifer Luy, Del Monte Pacific Limited, +65 6594 0980, jluy@delmontepacific.com

Annalise Carol, Brunswick Group for Del Monte Foods, 212-333-3810, acarol@brunswickgroup.com

Chrissy Trampedach, Del Monte Foods, 415-247-3420, media.relations@delmonte.com

###

 

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Exhibit 99.2

 

LOGO

BIG HEART PET BRANDS IS THE NEW NAME FOR DEL MONTE FOODS’ PET PRODUCTS BUSINESS; NOW LARGEST STANDALONE PET PRODUCTS COMPANY IN

NORTH AMERICA

Company Now Focused on Nurturing the Bond between Pets and the People Who Love them

Portfolio Includes Best-Loved Brands Milk-Bone ® , Meow Mix ® , Natural Balance ® , Kibbles ‘n Bits ® , 9Lives ® , Milo’s Kitchen ® , among others

(San Francisco) [Feb. 19, 2014] – Today, Big Heart Pet Brands, previously Del Monte Foods’ (DMF) Pet Products business, announces its launch as the largest standalone pet food and snacks company in North America. The creation of Big Heart Pet Brands follows the company’s sale of its Consumer Products division to Del Monte Pacific Limited (DMPL). The sale to DMPL closed on February 18, 2014.

The new name reflects the company’s singular focus on the pet products market and underscores the company’s purpose: nurturing the bond between pets and the people who love them – making every day special. Big Heart Pet Brands will continue to deliver iconic and loved brands that cats and dogs love, including Milk-Bone ® , Meow Mix ® , Natural Balance ® , Kibbles ‘n Bits ® , 9Lives ® , Milo’s Kitchen ® , Pup-Peroni ® , Nature’s Recipe ® , Canine Carry Outs ® , Gravy Train ® and other brand names.

“As a standalone pet products company, Big Heart Pet Brands will be singularly focused on capturing growth opportunities in the expanding $21 billion pet products category,” said Dave West, president and chief executive officer, Big Heart Pet Brands. “We are uniquely positioned with a powerful and broad pet portfolio, strong position in key pet food categories, robust business fundamentals and a commitment to creating a better future for pets by nurturing the bond between pets and the people who love them.”

“The pet products market is ripe for the fresh perspective and focus that Big Heart Pet Brands will bring to it,” said James M. Kilts, chairman of the board, Big Heart Pet Brands, and consumer packaged goods (CPG) industry veteran. “Dave and the Big Heart Pet Brands team are talented, dynamic, consumer goods experts with a big opportunity to move the company forward as a category leader.”

As chief executive of Big Heart Pet Brands, West is a respected leader in the CPG industry, with more than 25 years of experience. He joined Del Monte Foods in 2011 after a decade-long career at The Hershey Company, which culminated in his role as president and chief executive officer from December 2007 to May 2011. After joining Del Monte Foods as chief executive in 2011, West defined a new strategy, go-to-market structure and world-class consumer-insights approach, shaping the company for future growth.

 

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The Big Heart Pet Brands leadership team is comprised of seasoned CPG industry veterans with significant experience from past senior positions with companies like Kraft Foods, Campbell’s Soup Company, PepsiCo, The Clorox Company, Gillette and Procter & Gamble, among others.

Big Heart Pet Brands will leverage its scale, resources and singular pet products focus to provide innovative, insights-driven, category-leading pet products to the specialty, independent pet, mass and grocery markets.

“Every pet has a right to balanced nutrition, and so our promise is quality, accessible pet food and treats,” added West. “We know that healthy, happy pets can make lives fuller.”

Big Heart Pet Brands will remain headquartered in San Francisco, CA and continue to have office presences in Pittsburgh, PA and Burbank, CA. The company will also maintain its existing pet food and snack manufacturing plants and distribution centers, and sales offices.

For more information about Big Heart Pet Brands, view an infographic fact sheet , a video about the brand and a video about the company’s focus and strategy .

About Big Heart Pet Brands

Big Heart Pet Brands is the largest standalone producer, distributor and marketer of premium quality, branded pet food and pet snacks for the U.S. retail market. The company’s brands include Meow Mix ® , Kibbles ‘n Bits ® , Milk-Bone ® , 9Lives ® , Natural Balance ® , Pup-Peroni ® , Gravy Train ® , Nature’s Recipe ® , Canine Carry Outs ® , Milo’s Kitchen ® and other brand names. Big Heart Pet Brands’ portfolio enjoys strong U.S. market share, and is #1 in the dog snacks category, #2 in Dry/Wet Cat and #3 in Dry Dog.

Big Heart Pet Brands doesn’t believe in just owning pets. It believes in loving them. The company is committed to the well-being of pets and the people who love them. With a focus on nourishing the bodies and spirits of cats and dogs, Big Heart Pet Brands makes quality products that meet pets’ needs and exceed pet parents’ expectations. Its portfolio of brands, with a foundation in food and treats, caters to every pet life stage and every family’s budget through the availability and accessibility of its products.

For more information, visit the Big Heart Pet Brands website at www.bigheartpet.com .

Contacts:

Annalise Carol, Brunswick Group for Big Heart Pet Brands, 212-333-3810, acarol@brunswickgroup.com Chrissy Trampedach, Big Heart Pet Brands, 415-247-3420, media.relations@bigheartpet.com

###

 

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Exhibit 99.3

DEL MONTE CORPORATION

UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

The following Unaudited Pro Forma Condensed Consolidated Financial Statements of Del Monte Corporation reflect the impact of the previously announced disposition of the interests of certain subsidiaries related to the Company’s Consumer Products business (the “Consumer Products Business”) and generally all assets primarily related to the Consumer Products Business. On February 18, 2014, the Company completed the sale of the Consumer Products Business pursuant to the terms of a Purchase Agreement with Del Monte Pacific Limited (“DMPL”) and its subsidiary, Del Monte Foods Consumer Products, Inc. (now known as “Del Monte Foods, Inc.”) (the “Acquiror”). The Pro Forma Financial Information has been derived from the historical consolidated financial statements of the Company, which are included in its Annual Report on Form 10-K for the fiscal year ended April 28, 2013 and its Quarterly Report on Form 10-Q for the six months ended October 27, 2013.

The Pro Forma Financial Information has been prepared to eliminate the Consumer Products Business’ assets, liabilities and results of operations, and reflect the following:

 

    the receipt of the cash purchase price in connection with the close of the transaction, plus an estimated working capital adjustment as of October 27, 2013, less transaction costs; and

 

    tax adjustments from the realization of deferred tax assets and liabilities and current taxes payable resulting from the tax gain on sale.

No pro forma adjustments were made to reflect the Transition Services Agreement between the Company and the Acquiror given the limited duration of the agreement. The unaudited pro forma condensed consolidated statements of operations give effect to the disposition of the assets and related liabilities as if it had occurred as of the beginning of each period shown. The unaudited pro forma condensed consolidated balance sheet gives effect to the disposition of the assets and related liabilities as if it had occurred as of the balance sheet date.

The Pro Forma Financial Information is not necessarily indicative of the Company’s results of operations or financial condition had the sale been completed on the dates assumed. The assumptions used and pro forma adjustments derived from such assumptions are based on currently available information and such assumptions are believed to be reasonable under the circumstances.


Del Monte Corporation and Subsidiaries

Pro Forma Condensed Consolidated Statement of Operations

(in millions)

 

     Fiscal Year Ended April 28, 2013  
     Historical     Pro Forma
Adjustments
    Pro Forma  
     (as reported)           (unaudited)  

Net sales

   $ 3,819.4      $ (1,830.4 )(A)    $ 1,989.0   

Costs of products sold

     2,718.7        (1,417.7 )(A)      1,301.0   
  

 

 

   

 

 

   

 

 

 

Gross profit

     1,100.7        (412.7     688.0   

Selling, general and administrative expense

     716.2        (261.3 )(A)      454.9   
  

 

 

   

 

 

   

 

 

 

Operating income

     384.5        (151.4     233.1   

Interest expense

     257.9        (0.7 )(A)      257.2   

Other income, net

     (12.5     2.7  (A)      (9.8
  

 

 

   

 

 

   

 

 

 

Income (loss) from continuing operations before income taxes

     139.1        (153.4     (14.3

Provision (benefit) for income taxes

     47.2        (55.5 )(A)      (8.3
  

 

 

   

 

 

   

 

 

 

Income (loss) from continuing operations

     91.9        (97.9     (6.0

Income (loss) from discontinued operations before income taxes

     (0.7     —          (0.7

Provision (benefit) for income taxes

     (1.0     —          (1.0
  

 

 

   

 

 

   

 

 

 

Income from discontinued operations

     0.3        —          0.3   
  

 

 

   

 

 

   

 

 

 

Net income (loss)

   $ 92.2      $ (97.9   $ (5.7
  

 

 

   

 

 

   

 

 

 

See Accompanying Notes to the Unaudited Condensed Consolidated Financial Statements

 

2


Del Monte Corporation and Subsidiaries

Pro Forma Condensed Consolidated Statement of Operations (unaudited)

(in millions)

 

     Six Months Ended October 27, 2013  
     Historical     Pro Forma
Adjustments
    Pro Forma  

Net sales

   $ 1,033.0      $ —        $ 1,033.0   

Costs of products sold

     657.8        —          657.8   
  

 

 

   

 

 

   

 

 

 

Gross profit

     375.2        —          375.2   

Selling, general and administrative expense

     237.2        —          237.2   
  

 

 

   

 

 

   

 

 

 

Operating income

     138.0        —          138.0   

Interest expense

     118.4        —          118.4   

Other income, net

     (9.6     —          (9.6
  

 

 

   

 

 

   

 

 

 

Income from continuing operations before income taxes

     29.2        —          29.2   

Provision for income taxes

     16.4        —          16.4   
  

 

 

   

 

 

   

 

 

 

Income from continuing operations

     12.8        —          12.8   

Income (loss) from discontinued operations before income taxes

     (142.7     142.7 (A)      —     

Provision (benefit) for income taxes

     (57.1     57.1 (A)      —     
  

 

 

   

 

 

   

 

 

 

Income from discontinued operations

     (85.6     85.6        —     
  

 

 

   

 

 

   

 

 

 

Net income (loss)

   $ (72.8   $ 85.6      $ 12.8   
  

 

 

   

 

 

   

 

 

 

See Accompanying Notes to the Unaudited Condensed Consolidated Financial Statements

 

3


Del Monte Corporation and Subsidiaries

Pro Forma Condensed Consolidated Balance Sheets (unaudited)

(in millions)

 

     As of October 27, 2013  
     Historical      Pro Forma
Adjustments
    Pro Forma  
     (as reported)               

ASSETS

       

Cash and cash equivalents

   $ 13.4       $ 1,842.7  (B)    $ 1,856.1   

Trade accounts receivable, net of allowance

     126.4         —          126.4   

Inventories, net

     209.5         —          209.5   

Prepaid expenses and other current assets

     89.5         28.5  (C)      118.0   

Discontinued operations-assets

     2,310.3         (2,310.3 )(D)      —     
  

 

 

    

 

 

   

 

 

 

Total current assets

     2,749.1         (439.1     2,310.0   

Property, plant and equipment, net

     368.2         —          368.2   

Goodwill

     2,113.0         —          2,113.0   

Intangible assets, net

     2,178.9         —          2,178.9   

Other assets, net

     111.0         —          111.0   
  

 

 

    

 

 

   

 

 

 

Total assets

   $ 7,520.2       $ (439.1   $ 7,081.1   
  

 

 

    

 

 

   

 

 

 

LIABILITIES AND STOCKHOLDER’S EQUITY

       

Accounts payable and accrued expenses

   $ 322.8       $ 348.5  (E)    $ 671.3   

Short-term borrowings

     156.2         —          156.2   

Current portion of long-term debt

     13.2         —          13.2   

Discontinued operations-liabilities

     467.5         (467.5 )(D)      —     
  

 

 

    

 

 

   

 

 

 

Total current liabilities

     959.7         (119.0     840.7   

Long-term debt, net of discount

     3,890.0         —          3,890.0   

Deferred tax liabilities

     1,005.1         (337.6 )(C)      667.5   

Other non-current liabilities

     139.3         —          139.3   
  

 

 

    

 

 

   

 

 

 

Total liabilities

     5,994.1         (456.6     5,537.5   
  

 

 

    

 

 

   

 

 

 

Stockholder’s Equity

     1,526.1         17.5  (F)      1,543.6   
  

 

 

    

 

 

   

 

 

 

Total liabilities and stockholder’s equity

   $ 7,520.2       $ (439.1   $ 7,081.1   
  

 

 

    

 

 

   

 

 

 

See Accompanying Notes to the Unaudited Condensed Consolidated Financial Statements

 

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DEL MONTE CORPORATION

NOTES TO UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

Pro Forma Adjustments

The following adjustments have been reflected in the unaudited pro forma condensed consolidated financial statements:

 

(A) To eliminate the operations of the Consumer Products Business as a result of the disposition.

 

(B) To reflect an increase in cash and cash equivalents, less transaction costs, as a result of the disposition.

 

(C) To reflect the realization of deferred tax assets and liabilities as a result of the disposition.

 

(D) To eliminate the assets and liabilities of the disposed Consumer Products Business.

 

(E) To reflect the current tax liability due as a result of the disposition.

 

(F) To reflect the net effect to stockholder’s equity of the pro forma adjustments to assets and liabilities described above.

 

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