Table of Contents

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 10-Q

 

 

(Mark One)

x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended October 27, 2013

OR

 

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from                      to                     

Commission file number 333-107830-05

 

 

DEL MONTE CORPORATION

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   75-3064217

(State or Other Jurisdiction of

Incorporation or Organization)

 

(I.R.S. Employer

Identification Number)

One Maritime Plaza,

San Francisco, California 94111

(Address of Principal Executive Offices including Zip Code)

(415) 247-3000

(Registrant’s Telephone Number, Including Area Code)

 

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes   ¨     No   x

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes   x     No   ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer   ¨    Accelerated filer   ¨
Non-accelerated filer   x   (Do not check if a smaller reporting company)    Smaller reporting company   ¨

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes   ¨     No   x

The number of shares outstanding of the Company’s common stock, par value $0.01, as of close of business on December 6, 2013 was 10.

 

 

 


Table of Contents

 

LOGO

Table of Contents

 

PART I.   FINANCIAL INFORMATION    1
ITEM 1.   FINANCIAL STATEMENTS    1
  CONDENSED CONSOLIDATED BALANCE SHEETS – October 27, 2013 (unaudited) and April 28, 2013    1
  CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (unaudited) – three and six months ended October 27, 2013 and October 28, 2012    2
  CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS) (unaudited) – three and six months ended October 27, 2013 and October 28, 2012    3
  CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (unaudited) – six months ended October 27, 2013 and October 28, 2012    4
  NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (unaudited)    5
ITEM 2.   MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS    19
ITEM 3.   QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK    33
ITEM 4.   CONTROLS AND PROCEDURES    34
PART II.   OTHER INFORMATION    34
ITEM 1.   LEGAL PROCEEDINGS    34
ITEM 1A.   RISK FACTORS    35
ITEM 2.   UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS    36
ITEM 3.   DEFAULTS UPON SENIOR SECURITIES    36
ITEM 4.   MINE SAFETY DISCLOSURES    36
ITEM 5.   OTHER INFORMATION    37
ITEM 6.   EXHIBITS    38
  SIGNATURES    40


Table of Contents

PART I. FINANCIAL INFORMATION

ITEM 1. FINANCIAL STATEMENTS

DEL MONTE CORPORATION AND SUBSIDIARIES

CONDENSED CONSOLIDATED BALANCE SHEETS

(in millions, except share and per share data)

 

     October 27,     April 28,  
     2013     2013  
     (unaudited)    

(derived from audited

financial statements)

See Note 1

 
ASSETS   

Cash and cash equivalents

   $ 13.4      $ 581.4   

Trade accounts receivable, net of allowance

     126.4        96.9   

Inventories, net

     209.5        168.8   

Prepaid expenses and other current assets

     89.5        70.6   

Discontinued operations-assets

     2,310.3        2,085.2   
  

 

 

   

 

 

 

Total current assets

     2,749.1        3,002.9   

Property, plant and equipment, net

     368.2        357.2   

Goodwill

     2,113.0        1,976.1   

Intangible assets, net

     2,178.9        1,919.8   

Other assets, net

     111.0        107.1   
  

 

 

   

 

 

 

Total assets

   $ 7,520.2      $ 7,363.1   
  

 

 

   

 

 

 
LIABILITIES AND STOCKHOLDER’S EQUITY   

Accounts payable and accrued expenses

   $ 322.8      $ 329.5   

Short-term borrowings

     156.2        —     

Current portion of long-term debt

     13.2        74.5   

Discontinued operations-liabilities

     467.5        346.4   
  

 

 

   

 

 

 

Total current liabilities

     959.7        750.4   

Long-term debt, net of discount

     3,890.0        3,902.7   

Deferred tax liabilities

     1,005.1        965.6   

Other non-current liabilities

     139.3        150.5   
  

 

 

   

 

 

 

Total liabilities

     5,994.1        5,769.2   
  

 

 

   

 

 

 

Stockholder’s equity:

    

Common stock ($0.01 par value per share, shares authorized:

    

1,000; 10 issued and outstanding)

     —          —     

Additional paid-in capital

     1,594.3        1,590.0   

Accumulated other comprehensive loss

     (15.8     (16.4

Retained earnings (accumulated deficit)

     (52.4     20.3   
  

 

 

   

 

 

 

Total stockholder’s equity

     1,526.1        1,593.9   
  

 

 

   

 

 

 

Total liabilities and stockholder’s equity

   $ 7,520.2      $ 7,363.1   
  

 

 

   

 

 

 

See accompanying Notes to the Condensed Consolidated Financial Statements.

 

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Table of Contents

DEL MONTE CORPORATION AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (unaudited)

(in millions)

 

     Three Months Ended     Six Months Ended  
     October 27,     October 28,     October 27,     October 28,  
     2013     2012     2013     2012  

Net sales

   $ 552.0      $ 497.0      $ 1,033.0      $ 955.3   

Cost of products sold

     355.7        328.5        657.8        639.7   
  

 

 

   

 

 

   

 

 

   

 

 

 

Gross profit

     196.3        168.5        375.2        315.6   

Selling, general and administrative expense

     124.5        111.4        237.2        230.4   
  

 

 

   

 

 

   

 

 

   

 

 

 

Operating income

     71.8        57.1        138.0        85.2   

Interest expense

     58.8        61.1        118.4        126.2   

Other income, net

     (1.2     (2.9     (9.6     (27.2
  

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) from continuing operations before income taxes

     14.2        (1.1     29.2        (13.8

Provision (benefit) for income taxes

     8.0        (0.2     16.4        (6.8
  

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) from continuing operations

     6.2        (0.9     12.8        (7.0

Income (loss) from discontinued operations before income taxes

     (162.2     49.9        (142.7     69.0   

Provision (benefit) for income taxes

     (63.3     19.4        (57.1     26.1   
  

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) from discontinued operations

     (98.9     30.5        (85.6     42.9   
  

 

 

   

 

 

   

 

 

   

 

 

 

Net income (loss)

   $ (92.7   $ 29.6      $ (72.8   $ 35.9   
  

 

 

   

 

 

   

 

 

   

 

 

 

See accompanying Notes to the Condensed Consolidated Financial Statements.

 

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Table of Contents

DEL MONTE CORPORATION AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS) (unaudited)

(in millions)

 

     Three Months Ended     Six Months Ended  
     October 27,     October 28,     October 27,     October 28,  
     2013     2012     2013     2012  

Net income (loss)

   $ (92.7   $ 29.6      $ (72.8   $ 35.9   
  

 

 

   

 

 

   

 

 

   

 

 

 

Other comprehensive income (loss):

        

Foreign currency translation adjustments

     (0.2     0.4        (0.3     —     

Pension and other postretirement benefits adjustments:

        

Prior service (cost) credit arising during the period, net of tax

     (0.2     —          (0.4     —     

Gain (loss) on cash flow hedging instruments, net of tax

     0.2        (0.8     1.3        (0.8
  

 

 

   

 

 

   

 

 

   

 

 

 

Total other comprehensive income (loss)

     (0.2     (0.4     0.6        (0.8
  

 

 

   

 

 

   

 

 

   

 

 

 

Comprehensive income (loss)

   $ (92.9   $ 29.2      $ (72.2   $ 35.1   
  

 

 

   

 

 

   

 

 

   

 

 

 

See accompanying Notes to the Condensed Consolidated Financial Statements.

 

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DEL MONTE CORPORATION AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (unaudited)

(in millions)

 

     Six Months Ended  
     October 27,     October 28,  
     2013     2012  

Operating activities:

    

Net income (loss)

   $ (72.8   $ 35.9   

Adjustments to reconcile net income (loss) to net cash used in operating activities:

    

Depreciation and amortization

     74.5        80.3   

Deferred taxes

     (61.1     13.8   

Write off of debt issuance cost

     1.7        2.9   

Loss on asset disposals

     1.1        1.6   

Stock compensation expense

     6.5        4.8   

Unrealized gain on derivative financial instruments

     (22.6     (38.0

Impairment on assets held for sale

     193.8        —     

Other items, net

     (0.6     —     

Changes in operating assets and liabilities

     (383.6     (202.8
  

 

 

   

 

 

 

Net cash used in operating activities

     (263.1     (101.5
  

 

 

   

 

 

 

Investing activities:

    

Capital expenditures

     (47.6     (42.2

Net proceeds from asset disposals

     0.1        —     

Cash used in business acquisition, net of cash acquired

     (335.0     —     

Payment for asset acquisition

     —          (12.0

Purchase of equity method investment

     (14.6     —     
  

 

 

   

 

 

 

Net cash used in investing activities

     (397.1     (54.2
  

 

 

   

 

 

 

Financing activities:

    

Proceeds from short-term borrowings

     225.3        4.6   

Payments on short-term borrowings

     (70.1     (3.3

Principal payments on long-term debt

     (74.5     (91.1

Capital contribution, net

     0.1        —     
  

 

 

   

 

 

 

Net cash provided by (used in) financing activities

     80.8        (89.8
  

 

 

   

 

 

 

Effect of exchange rate changes on cash and cash equivalents

     0.8        (1.0

Net change in cash and cash equivalents

     (578.6     (246.5

Cash and cash equivalents at beginning of period

     594.2        402.8   
  

 

 

   

 

 

 

Cash and cash equivalents at end of period

   $ 15.6      $ 156.3   
  

 

 

   

 

 

 

See accompanying Notes to the Condensed Consolidated Financial Statements.

 

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DEL MONTE CORPORATION AND SUBSIDIARIES

NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

For the three and six months ended October 27, 2013

(unaudited)

Note 1. Business and Basis of Presentation

On March 8, 2011, Del Monte Foods Company (“DMFC”) was acquired by an investor group led by funds affiliated with Kohlberg Kravis Roberts & Co. L.P. (“KKR”), Vestar Capital Partners (“Vestar”) and Centerview Capital, L.P. (“Centerview,” and together with KKR and Vestar, the “Sponsors”). Del Monte Corporation (“DMC” and, together with its consolidated subsidiaries, “Del Monte” or the “Company”) was a direct, wholly-owned subsidiary of DMFC. On April 26, 2011, DMFC merged with and into DMC, with DMC being the surviving corporation.

The Company operates on a 52 or 53-week fiscal year ending on the Sunday closest to April 30. The results of operations for the three months ended October 27, 2013 and October 28, 2012 each reflect periods that contain 13 weeks. The results of operations for the six months ended October 27, 2013 and October 28, 2012 each reflect periods that contain 26 weeks.

Del Monte is one of the country’s largest producers, distributors and marketers of premium quality, branded pet products and food products for the U.S. retail market. The Company’s pet food and pet snacks 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, and food brands include Del Monte , Contadina, College Inn, S&W and other brand names. The Company has one reportable segment: Pet Products, which manufactures, markets and sells branded and private label dry and wet pet food and pet snacks. The former Consumer Products segment; which manufactures, markets and sells branded and private label shelf-stable products, including fruit, vegetable, tomato and broth products; is now reported as discontinued operations. See Discontinued Operations and Assets Held for Sale below for details on the planned divestiture.

The accompanying unaudited condensed consolidated financial statements of Del Monte as of October 27, 2013 and for the three and six months ended October 27, 2013 and October 28, 2012 have been prepared in accordance with accounting principles generally accepted in the United States (“GAAP”) for interim financial information and with the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and notes required by GAAP for annual financial statements. These unaudited condensed consolidated financial statements should be read in conjunction with the notes to the consolidated financial statements in the Company’s 2013 Annual Report on Form 10-K (“2013 Annual Report”). In the opinion of management, all adjustments consisting of normal and recurring entries considered necessary for a fair presentation of the results for the interim periods presented have been included. All significant intercompany balances and transactions have been eliminated. The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect reported amounts in the financial statements and accompanying notes. These estimates are based on information available as of the date of the unaudited condensed consolidated financial statements. Therefore, actual results could differ from those estimates. Furthermore, operating results for the three and six months ended October 27, 2013 are not necessarily indicative of the results expected for the fiscal year ending April 27, 2014.

As described in Note 5, on July 15, 2013, DMC completed the acquisition of 100% of the voting interest of Natural Balance Pet Foods, Inc. (“Natural Balance”), maker of premium pet food for dogs and cats sold throughout North America. The financial results of Natural Balance are reported within the Pet Products segment.

On July 11, 2013, the Company purchased a minority equity interest in a co-packer of some of the Company’s dog products for $14.6 million. While the Company exercises significant influence over the co-packer, it does not hold a controlling interest in the company. As such, the investment is accounted for under the equity method and is stated at cost plus the Company’s share of undistributed earnings.

Discontinued Operations and Assets Held for Sale

On October 9, 2013, the Company entered into a Purchase Agreement (the “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”). Pursuant to the terms of the Purchase Agreement, the Company will sell to the Acquiror 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 (the “Transferred Assets”) for a purchase price of $1,675.0 million, subject to a post-closing working capital adjustment. The Acquiror will also assume related liabilities (other than certain specified excluded liabilities). The transaction is expected to close by early calendar year 2014. After closing, the Company expects to have continuing involvement with the

 

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Table of Contents

DEL MONTE CORPORATION AND SUBSIDIARIES

NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

For the three and six months ended October 27, 2013

(unaudited)

 

Acquiror under the terms of the transition services agreement and expects to have continuing cash flows with the discontinued operation for at least 12 months after the transaction close date. Management assessed the nature of its continuing involvement, which includes providing continued administrative, information technology, and accounting service functions during the term of the agreement, and continuing cash flows and determined them not to be significant.

Accordingly, the results of the Consumer Products Business have been reported as discontinued operations for all periods presented. Expenses allocated to discontinued operations are limited to selling, administrative and distribution expenses that were directly attributable to the Consumer Products Business. Consequently, certain expenses that have historically been allocated to the Consumer Business are not included in discontinued operations. The Company has combined cash flows from discontinued operations with cash flows from continuing operations within the operating, investing and financing categories in the Condensed Consolidated Statements of Cash Flows for all periods presented. The results of operations for the Consumer Products Business were previously reported as the Consumer Products segment.

Any net proceeds not committed for reinvestment within 12 months of the transaction closing date would be required to be used to repay debt. As such, interest expense has not been allocated to discontinued operations. The ability to reinvest the net proceeds from the sale will be dependent upon the availability of suitable opportunities.

All subsequent footnote disclosures represent continuing operations with the exception of Note 4 which details the assets and liabilities of discontinued operations as well as results of operations for discontinued operations.

Note 2. Recently Issued Accounting Standards

In February 2013, the Financial Accounting Standards Board (“FASB”) issued an Accounting Standards Update (“ASU”) related to comprehensive income. The amendments require an entity to provide information about the amounts reclassified out of accumulated other comprehensive income by component. This new accounting pronouncement is effective for fiscal years and interim periods within those years beginning after December 15, 2012, with early adoption permitted. Accordingly, the Company has included the enhanced disclosure in Note 10.

In March 2013, the FASB issued an ASU to clarify the applicable guidance for the release of foreign currency cumulative translation adjustments under GAAP. The amended guidance clarifies when cumulative translation adjustments should be released into net income in connection with (i) the loss of a controlling financial interest in a subsidiary or group of assets within a foreign entity or (ii) the partial sale of an equity method investment that is a foreign entity. The amended guidance also clarifies the types of events that result in the sale of an investment in a foreign entity. The Company is required to adopt this amended guidance prospectively for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2013. The Company does not expect the adoption of this guidance to have a material impact on its consolidated financial statements.

In July 2013, the FASB issued an ASU to clarify the presentation of unrecognized tax benefits when a net operating loss carryforward, a similar tax loss or a tax credit carryforward exists as of the reporting date. The Company is required to adopt this amended guidance for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2013. The Company does not expect the adoption of this guidance to have a material impact on its consolidated financial statements.

In July 2013, the FASB issued an ASU permitting the Fed Funds Effective Swap Rate to be used as a U.S. benchmark interest rate for hedge accounting purposes, in addition to the United States Treasury rate and London Interbank Offered Rate (“LIBOR”). In addition, the restriction on using different benchmark rates for similar hedges is removed. The Company is required to adopt these provisions prospectively for qualifying new or re-designated hedging relationships entered into on or after July 17, 2013. The Company does not expect the adoption of this guidance to have a material impact on its consolidated financial statements.

 

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DEL MONTE CORPORATION AND SUBSIDIARIES

NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

For the three and six months ended October 27, 2013

(unaudited)

 

Note 3. Supplemental Financial Statement Information

 

     October 27,     April 28,  
     2013     2013  
     (in millions)  

Trade accounts receivable, net of allowance:

    

Trade

   $ 126.4      $ 96.9   

Allowance for doubtful accounts

     —          —     
  

 

 

   

 

 

 

Total

   $ 126.4      $ 96.9   
  

 

 

   

 

 

 

Inventories, net:

    

Finished products

   $ 172.7      $ 138.6   

Raw materials and in-process materials

     24.1        18.8   

Packaging materials and other

     12.7        11.4   
  

 

 

   

 

 

 

Total

   $ 209.5      $ 168.8   
  

 

 

   

 

 

 

Prepaid expenses and other current assets:

    

Prepaid expenses

   $ 42.7      $ 30.0   

Other current assets

     46.8        40.6   
  

 

 

   

 

 

 

Total

   $ 89.5      $ 70.6   
  

 

 

   

 

 

 

Property, plant and equipment, net:

    

Land and land improvements

   $ 12.6      $ 12.4   

Buildings and leasehold improvements

     127.6        122.1   

Machinery and equipment

     232.5        222.9   

Computers and software

     49.8        47.2   

Construction in progress

     41.3        33.1   
  

 

 

   

 

 

 
     463.8        437.7   

Accumulated depreciation

     (95.6     (80.5
  

 

 

   

 

 

 

Total

   $ 368.2      $ 357.2   
  

 

 

   

 

 

 

Accounts payable and accrued expenses:

    

Accounts payable – trade

   $ 160.8      $ 153.8   

Marketing, advertising and trade promotion

     53.9        35.2   

Accrued benefits, payroll and related costs

     32.3        45.6   

Accrued interest

     32.3        33.7   

Current portion of pension liability

     6.6        10.0   

Other current liabilities

     36.9        51.2   
  

 

 

   

 

 

 

Total

   $ 322.8      $ 329.5   
  

 

 

   

 

 

 

Other non-current liabilities:

    

Accrued postretirement benefits

   $ 56.0      $ 55.6   

Pension liability

     25.0        25.7   

Long-term hedge payable

     21.0        33.5   

Other non-current liabilities

     37.3        35.7   
  

 

 

   

 

 

 

Total

   $ 139.3      $ 150.5   
  

 

 

   

 

 

 

Accumulated other comprehensive loss:

    

Foreign currency translation adjustments

   $ (1.1   $ (0.8

Pension and other postretirement benefits adjustments, net of tax

     (9.5     (9.1

Gain (loss) on cash flow hedging instruments, net of tax

     (5.2     (6.5
  

 

 

   

 

 

 

Total accumulated other comprehensive loss

   $ (15.8   $ (16.4
  

 

 

   

 

 

 

 

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DEL MONTE CORPORATION AND SUBSIDIARIES

NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

For the three and six months ended October 27, 2013

(unaudited)

 

Note 4. Discontinued Operations

Net sales from discontinued operations were $462.8 million and $805.7 million for the three and six months ended October 27, 2013, respectively, and were $512.7 million and $875.5 million for the three and six months ended October 28, 2012, respectively. Income (loss) from discontinued operations before income taxes was $(162.2) million and $(142.7) million for the three and six months ended October 27, 2013, respectively, and was $49.9 million and $69.0 million for the three and six months ended October 28, 2012, respectively.

Assets and liabilities of discontinued operations include the following (in millions):

 

     October 27,      April 28,  
     2013      2013  

Cash and cash equivalents

   $ 2.2       $ 12.8   

Trade accounts receivable, net of allowance

     141.2         94.8   

Inventories, net

     940.6         553.3   

Prepaid expenses and other assets

     75.7         69.5   

Property, plant and equipment, net

     337.3         406.7   

Goodwill

     143.6         143.6   

Intangible assets, net

     669.7         804.5   
  

 

 

    

 

 

 

Total discontinued operations – assets

   $ 2,310.3       $ 2,085.2   
  

 

 

    

 

 

 

Accounts payable and accrued expenses

   $ 316.8       $ 197.7   

Short-term borrowings

     2.2         3.2   

Pension and other post-retirement liabilities

     98.4         96.8   

Other liabilities

     50.1         48.7   
  

 

 

    

 

 

 

Total discontinued operations – liabilities

   $ 467.5       $ 346.4   
  

 

 

    

 

 

 

The assets and liabilities are classified as held for sale and reflected at fair value less costs to sell. During the three months ended October 27, 2013, a non-cash impairment charge of $193.8 million was recognized in income (loss) from discontinued operations before income taxes in the Condensed Consolidated Statements of Operations. The impairment was allocated between net property, plant, and equipment and net intangible assets based on the relative book value.

Deferred tax assets and liabilities, which result in future taxable or deductible amounts for the assets and liabilities related to the Consumer Products Business’ domestic operations, were not allocated to discontinued operations in accordance with GAAP.

Under the Purchase Agreement, the Acquiror will assume all known or potential future legal liabilities related to the Consumer Products Business at the closing date. See Note 11 for a summary of current legal proceedings.

Note 5. Natural Balance Acquisition

On July 15, 2013, DMC completed the acquisition of 100% of the voting interest of Natural Balance, a California corporation and maker of premium pet food for dogs and cats sold throughout North America. The total cost of the Natural Balance acquisition as of October 27, 2013 was $331.8 million and included an initial $341.1 million cash payment (including $26.2 million paid into an escrow account) and contingent consideration of $0.3 million, reduced by an estimated working capital adjustment of approximately $9.6 million. The total cost of the acquisition is subject to a post-closing working capital adjustment which was initially due from the Company 90 days after closing (see discussion below). Final agreement of the working capital adjustment with the seller may not occur until more than 180 days after closing.

The acquisition is being accounted for under the acquisition method of accounting. The purchase price was allocated to the identifiable assets and liabilities, including brand names, based on estimated fair value, with any remaining purchase price being recorded as goodwill. The Company utilized an independent valuation firm to assist in estimating the fair value of Natural Balance’s real estate, machinery and equipment, and identifiable intangible assets.

 

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DEL MONTE CORPORATION AND SUBSIDIARIES

NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

For the three and six months ended October 27, 2013

(unaudited)

 

As of October 27, 2013, the Company recorded an adjustment to certain working capital accounts as of the acquisition date and a corresponding receivable for the working capital adjustment as referred to above. Refinements to the fair values of the assets acquired and liabilities assumed (including property, plant and equipment, goodwill and accrued expenses as well as the working capital adjustment) are expected to be recorded as the Company receives further information during the remainder of fiscal 2014.

The Company’s allocation of the purchase price to the net tangible and intangible assets acquired and liabilities assumed, reflective of the working capital adjustments referred to above is as follows (in millions):

 

     July 15,
2013
 

Cash and cash equivalents

   $ 3.9   

Trade accounts receivable

     10.9   

Inventories

     25.2   

Prepaid expenses and other current assets

     0.4   

Property, plant and equipment

     5.1   

Goodwill

     136.9   

Identifiable intangible assets

     280.7   

Deferred tax assets

     3.0   

Other assets

     1.9   
  

 

 

 

Total assets acquired

     468.0   
  

 

 

 

Accounts payable and accrued expenses

     20.7   

Other current liabilities

     2.1   

Deferred tax liabilities

     109.9   

Other non-current liabilities

     3.2   

Contingent consideration

     0.3   
  

 

 

 

Total liabilities assumed

     136.2   
  

 

 

 

Net assets acquired

   $ 331.8   
  

 

 

 

The acquisition of Natural Balance includes a contingent consideration arrangement that requires additional cash to be paid by the Company based on the future net sales of Natural Balance over a one year period. The range of the undiscounted amounts the Company could pay under the contingent consideration agreement is $0.0 million to $17.5 million, and is based on net sales measured for the 12 month period ending May 1, 2016 with payment due August 22, 2016. The estimated fair value of the contingent consideration recognized on the acquisition date was $0.3 million and was based on the purchase agreement. The fair value was estimated by applying the income approach and approximates the calculated value. The Company has classified the contingent consideration as Level 3 of the fair value hierarchy.

Goodwill is not expected to be deductible for tax purposes. All of the goodwill of $136.9 million was assigned to the Pet Products segment.

The Company executed the acquisition of Natural Balance with the objective of complementing the Company’s substantial pet products portfolio because Natural Balance operates in the high growth pet specialty channel.

The results of operations for Natural Balance are included in the Pet Products segment beginning July 15, 2013. The acquired business contributed net sales of $75.7 million from the acquisition date to October 27, 2013. The following unaudited pro forma financial information presents the combined results of operations of the Company, including Natural Balance, as if the acquisition had occurred as of the beginning of the periods presented. The unaudited pro forma financial information is not intended to represent or be indicative of the Company’s consolidated financial results of operations that would have been reported had the business combination been completed as of the beginning of the period presented and should not be taken as indicative of the Company’s future consolidated results of operations (in millions):

 

    Six Months Ended  
    (unaudited)  
    October 27,     October 28,  
    2013     2012  

Net sales

  $ 1,083.2      $ 1,081.9   

Income (loss) from continuing operations before income taxes

    29.8        (18.4

Income (loss) from continuing operations

    13.1        (9.9

 

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DEL MONTE CORPORATION AND SUBSIDIARIES

NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

For the three and six months ended October 27, 2013

(unaudited)

 

Note 6. Goodwill and Intangible Assets

The following table presents the Company’s goodwill and intangible assets (in millions):

 

     October 27,     April 28,  
     2013     2013  

Goodwill

   $ 2,113.0      $ 1,976.1   
  

 

 

   

 

 

 

Non-amortizable intangible assets:

    

Trademarks

   $ 1,389.9      $ 1,266.6   
  

 

 

   

 

 

 

Amortizable intangible assets:

    

Trademarks

     39.3        39.3   

Customer relationships

     852.7        695.3   
  

 

 

   

 

 

 
     892.0        734.6   

Accumulated amortization

     (103.0     (81.4
  

 

 

   

 

 

 

Amortizable intangible assets, net

     789.0        653.2   
  

 

 

   

 

 

 

Total intangible assets, net

   $ 2,178.9      $ 1,919.8   
  

 

 

   

 

 

 

During the six months ended October 27, 2013, the Company’s goodwill and intangible assets increased by a total of $417.6 million, with a $123.3 million and $157.4 million increase for non-amortizable trademarks and customer relationships, respectively, and a $136.9 million increase for goodwill, due to the Natural Balance acquisition (see Note 5). Further, changes to goodwill or intangible assets may be recorded as the purchase price allocations are finalized through the remainder of fiscal 2014.

Amortization expense for the periods indicated below was as follows (in millions):

 

     Three Months Ended      Six Months Ended  
     October 27,      October 28,      October 27,      October 28,  
     2013      2012      2013      2012  

Amortization expense

   $ 11.8       $ 9.5       $ 21.6       $ 19.0   

Customer relationships acquired during the period were classified as amortizable intangible assets, and had a weighted average amortization period of 17.1 years. Trademarks acquired during the period were classified as non-amortizable intangible assets.

As of October 27, 2013, expected amortization of intangible assets for each of the five succeeding fiscal years and thereafter is as follows (in millions):

 

2014 (remainder)

   $ 23.6   

2015

     47.3   

2016

     47.1   

2017

     46.7   

2018

     46.7   

2019 and thereafter

     577.6   

Note 7. Derivative Financial Instruments

The Company uses interest rate swaps, commodity swaps, futures, option and swaption (an option on a swap) contracts as well as forward foreign currency contracts to hedge market risks relating to possible adverse changes in interest rates, commodity, transportation and other input prices and foreign currency exchange rates. The Company continually monitors its positions and the credit ratings of the counterparties involved to mitigate the amount of credit exposure to any one party.

The Company designates each derivative contract as one of the following: (1) a hedge of a forecasted transaction or of the variability of cash flows to be received or paid related to a recognized asset or liability (“cash flow hedge”) or (2) a hedging instrument for which the change in fair value is recognized to act as an economic hedge but does not meet the requirements to receive hedge accounting treatment (“economic hedge”). As of October 27, 2013, the Company had both cash flow and economic hedges.

 

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DEL MONTE CORPORATION AND SUBSIDIARIES

NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

For the three and six months ended October 27, 2013

(unaudited)

 

Interest Rates: The Company’s debt primarily consists of floating rate term loans and fixed rate notes. The Company maintains its floating rate revolver for flexibility to fund seasonal working capital needs and for other uses of cash. Interest expense on the Company’s floating rate debt is typically calculated based on a fixed spread over a reference rate, such as LIBOR (also known as the Eurodollar rate). Therefore, fluctuations in market interest rates will cause interest expense increases or decreases on a given amount of floating rate debt.

The Company from time to time manages a portion of its interest rate risk related to floating rate debt by entering into interest rate swaps in which the Company receives floating rate payments and makes fixed rate payments. Swaps are recorded as an asset or liability in the Company’s Condensed Consolidated Balance Sheets at fair value. Any gains and losses on economic hedges are recorded as an adjustment to other (income) expense.

As of October 27, 2013, the following economic hedge swaps were outstanding:

 

Contract date

   Notional amount
(in millions)
     Fixed LIBOR
rate
    Effective date      Maturity date  

April 12, 2011

   $ 900.0         3.029     September 4, 2012         September 1, 2015   

August 13, 2010

   $ 300.0         1.368     February 1, 2011         February 3, 2014   

Commodities: Certain commodities such as soybean meal, corn, wheat, soybean oil, diesel fuel and natural gas (collectively, “commodity contracts”) are used in the production and transportation of the Company’s products. Generally these commodities are purchased based upon market prices that are established with the vendor as part of the purchase process. The Company uses futures, swaps, swaption or option contracts, as deemed appropriate, to reduce the effect of price fluctuations on anticipated purchases. These contracts may have a term of up to 24 months. The Company accounted for these commodity derivatives as either economic or cash flow hedges. For cash flow hedges, the effective portion of derivative gains and losses is deferred in equity and recognized as part of cost of products sold in the appropriate period and the ineffective portion is recognized as other (income) expense. Changes in the value of economic hedges are recorded directly in earnings.

The table below presents the notional amounts of the Company’s commodity contracts as of the dates indicated (in millions):

 

     October 27,      April 28,  
     2013      2013  

Commodity contracts

   $ 187.1       $ 269.4   

Foreign Currency: The Company manages its exposure to fluctuations in foreign currency exchange rates by entering into forward contracts to cover a portion of its projected expenditures paid in local currency. These contracts may have a term of up to 24 months. The Company accounted for these contracts as either cash flow or economic hedges. For cash flow hedges, the effective portion of derivative gains and losses is deferred in equity and recognized as part of cost of products sold in the appropriate period and the ineffective portion is recognized as other (income) expense. Changes in the value of the economic hedges are recorded directly in earnings. As of October 27, 2013, the Company did not have any outstanding foreign currency hedges because the Company did not believe it was in its best interest at the time. The Company may again in the future enter into foreign currency forward contracts.

 

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DEL MONTE CORPORATION AND SUBSIDIARIES

NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

For the three and six months ended October 27, 2013

(unaudited)

 

Fair Value of Derivative Instruments

The fair value of derivative instruments recorded in the Condensed Consolidated Balance Sheets as of October 27, 2013 was as follows (in millions):

 

Derivatives in economic

hedging relationships

  

Asset derivatives

   

Liability derivatives

 
  

Balance Sheet location

   Fair value    

Balance Sheet location

   Fair value  

Interest rate contracts

   Other non-current assets    $ —        Other non-current liabilities    $ 21.0   

Interest rate contracts

   Prepaid expenses and other current assets      —        Accounts payable and accrued expenses      26.7   

Commodity and other contracts

   Prepaid expenses and other current assets      9.3 (1)     Accounts payable and accrued expenses      10.6 (2)  
     

 

 

      

 

 

 

Total

      $ 9.3         $ 58.3   
     

 

 

      

 

 

 

 

(1)   Includes $3.2 million of commodity contracts (asset derivatives) designated as cash flow hedges.
(2)   Includes $9.9 million of commodity contracts (liability derivatives) designated as cash flow hedges.

The fair value of derivative instruments recorded in the Condensed Consolidated Balance Sheets as of April 28, 2013 was as follows (in millions):

 

Derivatives in economic

hedging relationships

  

Asset derivatives

   

Liability derivatives

 
  

Balance Sheet location

   Fair value    

Balance Sheet location

   Fair value  

Interest rate contracts

   Other non-current assets    $ —        Other non-current liabilities    $ 33.5   

Interest rate contracts

   Prepaid expenses and other current assets      —        Accounts payable and accrued expenses      28.4   

Commodity and other contracts

   Prepaid expenses and other current assets      3.8 (1)     Accounts payable and accrued expenses      10.6 (2)  
     

 

 

      

 

 

 

Total

      $ 3.8         $ 72.5   
     

 

 

      

 

 

 

 

(1)   Includes $0.3 million of commodity contracts (asset derivatives) designated as cash flow hedges.
(2)   Represents commodity contracts (liability derivatives) designated as cash flow hedges.

The effect of the Company’s economic hedges on other (income) expense in the Condensed Consolidated Statements of Operations for the periods indicated below was as follows (in millions):

 

     Three Months Ended     Six Months Ended  
     October 27,
2013
    October 28,
2012
    October 27,
2013
    October 28,
2012
 

Interest rate contracts

   $ 2.1      $ 1.9      $ 0.2      $ 9.2   

Commodity and other contracts

     (1.7     (5.8     (8.3     (40.5
  

 

 

   

 

 

   

 

 

   

 

 

 

Included in other (income) expense

   $ 0.4      $ (3.9   $ (8.1   $ (31.3
  

 

 

   

 

 

   

 

 

   

 

 

 

 

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DEL MONTE CORPORATION AND SUBSIDIARIES

NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

For the three and six months ended October 27, 2013

(unaudited)

 

The effect of the Company’s cash flow hedges in the Condensed Consolidated Statements of Operations for the three and six months ended October 27, 2013 was as follows (in millions):

 

Derivatives in cash flow

hedging relationships

  (Gain) loss recognized
in AOCI
        (Gain) loss reclassified
from AOCI into income
   

Location of (gain) loss
recognized in income
(ineffective portion and
amount excluded from
effectiveness testing)

  (Gain) loss recognized in
income (ineffective portion
and amount excluded from
effectiveness testing)
 
  Three Months     Six Months         Three Months     Six Months       Three Months     Six Months  
  Ended     Ended         Ended     Ended       Ended     Ended  
  October 27,
2013
    October 27,
2013
   

Location of (gain) loss
reclassified in AOCI

  October 27,
2013
    October 27,
2013
      October 27,
2013
    October 27,
2013
 

Interest rate contracts

  $ —        $ —        Interest expense   $ —        $ —        Other (income) expense   $ —        $ —     

Commodity contracts

    (1.6     (1.6   Cost of products sold     2.2        1.9      Other (income) expense     (1.3     (1.6
 

 

 

   

 

 

     

 

 

   

 

 

     

 

 

   

 

 

 

Total

  $ (1.6   $ (1.6     $ 2.2      $ 1.9        $ (1.3   $ (1.6
 

 

 

   

 

 

     

 

 

   

 

 

     

 

 

   

 

 

 

The effect of the Company’s cash flow hedges in the Condensed Consolidated Statements of Operations for the three and six months ended October 28, 2012 was as follows (in millions):

 

Derivatives in cash flow

hedging relationships

  (Gain) loss recognized
in AOCI
   

Location of (gain) loss

reclassified in AOCI

  (Gain) loss reclassified
from AOCI into income
   

Location of (gain) loss
recognized in income
(ineffective portion and
amount excluded from
effectiveness testing)

  (Gain) loss recognized in
income (ineffective portion
and amount excluded from
effectiveness testing)
 
  Three Months     Six Months       Three Months     Six Months       Three Months     Six Months  
  Ended     Ended       Ended     Ended       Ended     Ended  
  October 28,
2012
    October 28,
2012
      October 28,
2012
    October 28,
2012
      October 28,
2012
    October 28,
2012
 

Commodity contracts

  $ (1.4   $ (1.4   Cost of products sold   $ —        $ —        Other (income) expense   $ (0.1   $ (0.1
 

 

 

   

 

 

     

 

 

   

 

 

     

 

 

   

 

 

 

Total

  $ (1.4   $ (1.4     $ —        $ —          $ (0.1   $ (0.1
 

 

 

   

 

 

     

 

 

   

 

 

     

 

 

   

 

 

 

At October 27, 2013, $6.3 million is expected to be reclassified from AOCI to cost of products sold within the next 12 months.

Note 8. Fair Value Measurements

A three-tier fair value hierarchy is utilized to prioritize the inputs used in measuring fair value. The hierarchy gives the highest priority to quoted prices in active markets (Level 1) and the lowest priority to unobservable inputs (Level 3). The three levels are defined as follows:

 

    Level 1 Inputs—unadjusted quoted prices in active markets for identical assets or liabilities;

 

    Level 2 Inputs—quoted prices for similar assets and liabilities in active markets or inputs that are observable for the asset or liability, either directly or indirectly through market corroboration, for substantially the full term of the financial instrument; and

 

    Level 3 Inputs—unobservable inputs reflecting the Company’s own assumptions in measuring the asset or liability at fair value.

The Company uses interest rate swaps, commodity contracts and forward foreign currency contracts to hedge market risks relating to possible adverse changes in interest rates, commodity prices, diesel fuel prices and foreign exchange rates.

 

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DEL MONTE CORPORATION AND SUBSIDIARIES

NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

For the three and six months ended October 27, 2013

(unaudited)

 

The following table provides the fair values hierarchy for financial assets and liabilities measured on a recurring basis (in millions):

 

     Level 1      Level 2      Level 3  

Description

   October 27,
2013
     April 28,
2013
     October 27,
2013
     April 28,
2013
     October 27,
2013
     April 28,
2013
 

Assets

                 

Interest rate contracts

   $ —         $ —         $ —         $ —         $ —         $ —     

Commodity and other contracts

     7.3         2.1         2.0         1.7         —           —     
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 7.3       $ 2.1       $ 2.0       $ 1.7       $ —         $ —     
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Liabilities

                 

Interest rate contracts

   $ —         $ —         $ 47.7       $ 61.9       $ —         $ —     

Commodity and other contracts

     10.6         5.2         —           5.4         —           —     
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 10.6       $ 5.2       $ 47.7       $ 67.3       $ —         $ —     
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

The Company’s determination of the fair value of its interest rate swaps was calculated using a discounted cash flow analysis based on the terms of the swap contracts and the observable interest rate curve. The Company’s futures and options contracts are traded on regulated exchanges such as the Chicago Board of Trade, Kansas City Board of Trade and the New York Mercantile Exchange. The Company values these contracts based on the daily settlement prices published by the exchanges on which the contracts are traded. The Company’s commodities swap and swaption contracts are traded over-the-counter and are valued based on the Chicago Board of Trade quoted prices for similar instruments in active markets or corroborated by observable market data available from the Energy Information Administration. The Company measures the fair value of foreign currency forward contracts using an income approach based on forward rates (obtained from market quotes for futures contracts with similar terms) less the contract rate multiplied by the notional amount.

As of October 27, 2013, the book value of the Company’s floating rate debt instruments approximates fair value. The Company uses Level 2 inputs to estimate the fair value of such debt. The following table provides the book value and the fair value of the Company’s fixed rate notes (“Senior Notes”) (in millions):

 

Senior Notes

   October 27,
2013
     April 28,
2013
 

Book value

   $ 1,300.0       $ 1,300.0   

Fair value

   $ 1,358.5       $ 1,381.3   

Fair value was estimated based on quoted market prices from the trading desk of a nationally recognized investment bank. As the Senior Notes are available to investors through certain brokerage firms, the Company has classified this debt as Level 2 of the fair value hierarchy.

Note 9. Retirement Benefits

Del Monte sponsors a qualified defined benefit pension plan and several unfunded defined benefit postretirement plans providing certain medical, dental and life insurance benefits to eligible retired, salaried, non-union hourly and union employees. See Note 9 of the 2013 Annual Report for additional information about these plans. The components of net periodic benefit cost of the qualified defined benefit and post-retirement plans for the periods indicated below are as follows (in millions):

 

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Table of Contents

DEL MONTE CORPORATION AND SUBSIDIARIES

NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

For the three and six months ended October 27, 2013

(unaudited)

 

     Pension Benefits     Other Benefits  
     Three Months Ended  
     October 27,     October 28,     October 27,     October 28,  
     2013     2012     2013     2012  

Components of net periodic benefit cost:

        

Service cost for benefits earned during the period

   $ 1.7      $ 1.7      $ 0.1      $ 0.1   

Interest cost on projected benefit obligation

     1.9        2.1        0.6        0.9   

Expected return on plan assets

     (3.3     (3.2     —          —     

Net (loss) gain amortization

     —          —          (0.3     —     
  

 

 

   

 

 

   

 

 

   

 

 

 

Net periodic benefit cost

   $ 0.3      $ 0.6      $ 0.4      $ 1.0   
  

 

 

   

 

 

   

 

 

   

 

 

 
     Pension Benefits     Other Benefits  
     Six Months Ended  
     October 27,     October 28,     October 27,     October 28,  
     2013     2012     2013     2012  

Components of net periodic benefit cost:

        

Service cost for benefits earned during the period

   $ 3.5      $ 3.5      $ 0.1      $ 0.2   

Interest cost on projected benefit obligation

     3.7        4.1        1.3        1.8   

Expected return on plan assets

     (6.7     (6.4     —          —     

Net (loss) gain amortization

     —          —          (0.6     —     
  

 

 

   

 

 

   

 

 

   

 

 

 

Net periodic benefit cost

   $ 0.5      $ 1.2      $ 0.8      $ 2.0   
  

 

 

   

 

 

   

 

 

   

 

 

 

Note 10. Accumulated Other Comprehensive Loss

The following table summarizes the reclassifications from accumulated other comprehensive loss to the Condensed Consolidated Statements of Operations for the three and six months ended October 27, 2013 (in millions):

 

Details about Accumulated Other

Comprehensive Loss Components

   Amount Reclassified from Accumulated Other
Comprehensive Loss
   

Affected Line Item in the

Condensed Consolidated

Statements of Operations

     Three Months Ended
October 27, 2013
    Six Months Ended
October 27, 2013
     

Gains on cash flow hedges:

      

Commodity contracts

   $ 2.2      $ 1.9     

Cost of products sold

  

 

 

   

 

 

   
     2.2        1.9     

Total before tax

  

 

 

   

 

 

   
     0.8        0.7     

Benefit for income taxes

  

 

 

   

 

 

   
   $ 1.4      $ 1.2     

Net of tax

  

 

 

   

 

 

   

Defined benefit plan items:

      

Amortization of prior service benefits

   $ 0.3      $ 0.7 (1)    

Amortization of actuarial losses

     (0.3     (0.6 ) (1)    
  

 

 

   

 

 

   
     —          0.1     

Total before tax

  

 

 

   

 

 

   
     —          —       

Benefit for income taxes

  

 

 

   

 

 

   

Total reclassifications

   $ —        $ 0.1     

Net of tax

  

 

 

   

 

 

   

 

(1)   These accumulated and other comprehensive income (loss) components are included in the computation of net periodic pension and postretirement benefit costs. See Note 9 for additional information.

Note 11. Legal Proceedings

Except as set forth below, there have been no material developments in the Company’s legal proceedings since the legal proceedings reported in the 2013 Annual Report.

 

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Table of Contents

DEL MONTE CORPORATION AND SUBSIDIARIES

NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

For the three and six months ended October 27, 2013

(unaudited)

 

Commercial Litigation Involving the Company

On April 22, 2013, Plaintiffs filed a complaint in the U.S. District Court for the Northern District of California ( Langille, et al. v. Del Monte) alleging false and misleading advertising under California’s consumer protection laws. Plaintiffs allege the Company made a variety of false and misleading advertising claims including, but not limited to, implying that its refrigerated fruit products are “fresh” and “natural.” The complaint seeks certification as a class action and damages in excess of $5.0 million. The Company denies these allegations and intends to vigorously defend itself. On May 1, 2013, Plaintiffs filed a motion to relate this case to the Kosta v. Del Monte matter. The Company filed a Joinder in support of Plaintiffs’ Motion on May 6, 2013. The Court ordered the cases related in an Order on May 15, 2013. The parties filed a Joint Stipulation to consolidate these cases on June 3, 2013 and the Judge granted this Order on June 5, 2013. The Kosta and Langille plaintiffs filed their Consolidated Class Action Complaint on June 11, 2013. The Company filed its Answer on June 28, 2013. The Company cannot at this time reasonably estimate a range of exposure, if any, of the potential liability.

On April 19, 2013, Plaintiff filed a complaint on behalf of himself and all other similarly situated employees in Superior Court of California, Alameda County ( Montgomery v. Del Monte ) alleging, inter alia , failure to provide meal and rest periods and pay wages properly in violation of various California wage and hour statutes. On May 24, 2013, Plaintiff filed its First Amended Complaint. The Court granted the parties’ Application to Transfer to Kings County on June 14, 2013. Mediation has been scheduled for March 20, 2014. The Company denies these allegations and intends to vigorously defend itself. The Company cannot at this time reasonably estimate a range of exposure, if any, of the potential liability.

On January 31, 2013, a putative class action complaint was filed against the Company in the Circuit Court of Jackson County, Missouri ( Harmon v. Del Monte ) alleging that Milo’s Kitchen chicken jerky treats (“Chicken Jerky Treats”) and Milo’s Kitchen Chicken Grillers Recipe home-style dog treats contain “poisonous antibiotics and other potentially lethal substances.” Plaintiff seeks restitution and damages not to exceed $75,000 per class member and the aggregated claim for damages of the class not to exceed $5.0 million under the Missouri Merchandising Practices Act. The complaint also alleges the Company continued to sell its Chicken Jerky Treats in Jackson County, Missouri after it announced its recall of the product on January 9, 2013. The complaint seeks certification as a class action. The Company successfully removed this case to federal court on March 12, 2013. On April 9, 2013, Plaintiff filed its Second Amended Class Action Petition against the Company. The Company filed its Motion to Transfer to the Western District of Pennsylvania on April 19, 2013 and its Motion to Stay Pending the Motion to Transfer on April 25, 2013. The Motion to Stay was granted the same day it was filed. On May 6, 2013, Plaintiffs filed their Opposition to Defendant’s Motion to Transfer. The Company filed its Reply in Support of its Motion to Transfer on May 23, 2013. The Court denied the Company’s Motion to Transfer on July 22, 2013. The Company filed its Answer on August 13, 2013 and discovery has commenced. The Company denies these allegations and intends to vigorously defend itself. The Company cannot at this time reasonably estimate a range of exposure, if any, of the potential liability.

On September 6, 2012, October 12, 2012 and October 16, 2012, three separate putative class action complaints were filed against the Company in U.S. District Court for the Northern District of California ( Langone v. Del Monte , Ruff v. Del Monte , and Funke v. Del Monte , respectively) alleging product liability claims relating to Chicken Jerky Treats. Specifically, the complaints allege that Plaintiffs’ dogs became ill as a result of consumption of Chicken Jerky Treats. The complaints also allege that the Company breached its warranties and California’s consumer protection laws. Each of the complaints seeks certification as a class action and damages in excess of $5.0 million. The Company denies these allegations and intends to vigorously defend itself. On December 18, 2012, Plaintiffs filed a motion to relate and consolidate the Langone , Ruff and Funke matters. The Company agreed that the cases are related but argued in its response that they should not be consolidated. The Court ordered the cases are related in an Order on January 24, 2013. In the Langone case, the Company filed a Motion to Transfer/Dismiss on February 1, 2013. Plaintiff in the Langone matter voluntarily dismissed his Complaint without prejudice on February 21, 2013 and re-filed in the U.S. District Court for the Western District of Pennsylvania on May 21, 2013. The Company filed its Motion to Dismiss in the Langone case with the U.S. District Court for the Western District of Pennsylvania on August 2, 2013. The individual claims in the Langone case were settled for a de minimus amount, and a stipulation to dismiss with prejudice was filed on November 25, 2013. On April 9, 2013, the Court transferred Ruff and Funke to the U.S. District Court for the Western District of Pennsylvania but denied without prejudice Defendant’s motions to consolidate and dismiss. On April 23, 2013, the Company filed its Motion to Dismiss in Ruff and Funke with the U.S. District Court for the Western District of Pennsylvania and its Reply in Support of its Motion to Dismiss in both cases on June 3, 2013. The Company cannot at this time reasonably estimate a range of exposure, if any, of the potential liability.

 

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DEL MONTE CORPORATION AND SUBSIDIARIES

NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

For the three and six months ended October 27, 2013

(unaudited)

 

On July 19, 2012, a putative class action complaint was filed against the Company in U.S. District Court for the Western District of Pennsylvania ( Mazur v. Del Monte ) alleging product liability claims relating to Chicken Jerky Treats. Specifically, the complaint alleges that Plaintiff’s dog became ill and had to be euthanized as a result of consumption of Chicken Jerky Treats. The complaint also alleges that the Company breached its warranties and Pennsylvania’s consumer protection laws. The complaint seeks certification as a class action and damages in excess of $5.0 million. The Company denies these allegations and intends to vigorously defend itself. On August 3, 2012, Plaintiff’s counsel filed a Motion to Consolidate the previously filed two similar class actions against Nestle Purina Petcare Company, owner of the Waggin’ Train brand of chicken jerky treats, in U.S. District Court for the Northern District of Illinois under the federal rules for multi-district litigation (“MDL”). Plaintiff’s Motion also sought to include the case against the Company in the proposed MDL consolidation as a “related case.” On September 28, 2012, the Court denied the MDL Motion. The case will now proceed in the jurisdiction in which it was originally filed. Plaintiff filed a Motion for Leave to Commence Limited Discovery on the subject of the voluntary recall of Chicken Jerky Treats on January 25, 2013. The Company filed its response opposing the Motion on February 8, 2013. The Court denied Plaintiff’s Motion on March 12, 2013; thus, discovery is stayed until the Court rules on the Company’s Motion to Dismiss, which was filed on September 24, 2012. On May 24, 2013, the Judge in the matter issued a Report and Recommendation stating that the Motion to Dismiss be granted as to Plaintiff’s claim for unjust enrichment and denied in all other respects. The Company filed its Objections to the Report and Recommendation on June 7, 2013. The Court issued an Order adopting the Magistrate Judge’s Report and Recommendation on June 25, 2013. The Court denied the Company’s Motion for Reconsideration on July 8, 2013. The Company filed its answer on August 2, 2013. The Company cannot at this time reasonably estimate a range of exposure, if any, of the potential liability.

On August 16, 2013, the Langone , Ruff , Funke and Mazur cases were consolidated.

On April 5, 2012, a complaint was filed against the Company in U.S. District Court for the Northern District of California ( Kosta v. Del Monte ) alleging false and misleading advertising under California’s consumer protection laws. The complaint seeks certification as a class action and damages in excess of $5.0 million. On June 15, 2012, the Company filed a Motion to Dismiss Plaintiff’s complaint. Plaintiff filed an amended complaint on July 6, 2012, negating the Company’s Motion to Dismiss. In its amended complaint, Plaintiff alleges the Company made a variety of false and misleading advertising claims including, but not limited to, its lycopene and antioxidant claims for tomato products; implying that its refrigerated products are fresh and all natural; implying that Fresh Cut vegetables are fresh; and making misleading claims regarding sugar, nutrient content, preservatives and serving size. The Company denies these allegations and intends to vigorously defend itself. The Company filed a new Motion to Dismiss Plaintiff’s complaint on July 31, 2012. The Motion to Dismiss was denied on May 15, 2013. Plaintiff moved on November 5, 2012 to seek application of the doctrine of collateral estoppel in this matter based on the jury’s finding in the Fresh Del Monte Inc. v. Del Monte case. The Company’s Response to Plaintiff’s Motion for Application of Collateral Estoppel was filed on January 17, 2013. Plaintiff’s Reply was filed on February 21, 2013. The Court denied Plaintiff’s Motion on May 17, 2013. The Court in Langille ordered these two matters related in an Order on May 15, 2013. The parties filed a joint stipulation to consolidate these cases on June 3, 2013 and the Judge granted this Order on June 5, 2013. The Kosta and Langille plaintiffs filed their Consolidated Class Action Complaint on June 11, 2013. The Company filed its Answer on June 28, 2013. The Company cannot at this time reasonably estimate a range of exposure, if any, of the potential liability.

On September 28, 2011, a complaint was filed against the Company by the Environmental Law Foundation in California Superior Court for the County of Alameda alleging violations of California Health and Safety Code sections 25249.6 et seq. (commonly known as “Proposition 65”). Specifically, the Plaintiff alleges that the Company violated Proposition 65 by distributing certain pear, peach and fruit cocktail products without providing warnings required by Proposition 65. The Plaintiff seeks injunctive relief, damages in an unspecified amount and attorneys’ fees. Trial commenced on April 8, 2013 and closing oral arguments were heard on May 16, 2013. The Judge issued his final decision on July 31, 2013, finding that the Defendants proved their case under the Proposition 65 safe harbor defense, therefore the Company currently does not need to place Proposition 65 warning labels on the applicable food products. The Company will continue to deny these allegations and vigorously defend itself. The Plaintiff filed its appeal on September 24, 2013. The Defendants filed their Notice of Protective Cross Appeal on October 9, 2013. The Company cannot at this time estimate a range of exposure, if any, of the potential liability.

 

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DEL MONTE CORPORATION AND SUBSIDIARIES

NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

For the three and six months ended October 27, 2013

(unaudited)

 

Note 12. Segment Information

The Company has a single reportable segment, Pet Products, which manufactures, markets and sells branded and private label dry and wet pet food and pet snacks. The former Consumer Products segment is now reported as discontinued operations (see Note 4).

The Company’s chief operating decision-maker, its CEO, reviews financial information presented on a consolidated basis accompanied by disaggregated information on operating income, for the operating segment and Corporate, for purposes of making decisions about resources to be allocated to the operating segment and in assessing financial performance. Corporate costs include those overhead costs not directly attributable to the operating segment as well as certain types of severance and non-cash costs. The chief operating decision-maker reviews assets of the Company on a consolidated basis only. The accounting policies of the operating segment are the same as those of the Company.

The following table presents financial information about the Company’s reportable segment (in millions):

 

     Three Months Ended     Six Months Ended  
     October 27,     October 28,     October 27,     October 28,  
     2013     2012     2013     2012  

Operating income:

        

Pet Products

   $ 84.1      $ 69.7      $ 164.5      $ 109.1   

Corporate

     (12.3     (12.6     (26.5     (23.9
  

 

 

   

 

 

   

 

 

   

 

 

 

Total

     71.8        57.1        138.0        85.2   

Reconciliation to income (loss) from continuing operations before income taxes:

        

Interest expense

     58.8        61.1        118.4        126.2   

Other (income) expense, net

     (1.2     (2.9     (9.6     (27.2
  

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) from continuing operations before income taxes

   $ 14.2      $ (1.1   $ 29.2      $ (13.8
  

 

 

   

 

 

   

 

 

   

 

 

 

The following table presents financial information about the Company’s former reportable segment classified in discontinued operations (in millions):

 

     Three Months Ended      Six Months Ended  
     October 27,     October 28,      October 27,     October 28,  
     2013     2012      2013     2012  

Discontinued operations:

         

Net sales

   $ 462.8      $ 512.7       $ 805.7      $ 875.5   

Income (loss) from discontinued operations before income taxes

     (162.2     49.9         (142.7     69.0   

Note 13. Related Party Transactions

See Note 14 of the 2013 Annual Report for a description of the Company’s related party transactions. As of October 27, 2013, there was a payable of $1.6 million due to the managers related to the monitoring agreement, which is included in accounts payable and accrued expenses in the Condensed Consolidated Balance Sheets. As of April 28, 2013, there was a payable of $1.7 million due to the managers related to the monitoring agreement. For the three and six months ended October 27, 2013, the Company paid $0.7 million and $1.4 million, respectively, to a KKR affiliate for rent related to leased administrative space in Pittsburgh, PA.

During the six months ended October 27, 2013, the Company paid $3.5 million to a Vestar advisor for a finder’s fee related to the Natural Balance acquisition.

 

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ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

This discussion is intended to further the reader’s understanding of the consolidated financial condition and results of operations of our Company. It should be read in conjunction with the financial statements included in this Quarterly Report on Form 10-Q and our Annual Report on Form 10-K for the year ended April 28, 2013 (the “2013 Annual Report”). These historical financial statements may not be indicative of our future performance. This Management’s Discussion and Analysis of Financial Condition and Results of Operations contains a number of forward-looking statements, all of which are based on our current expectations and could be affected by the uncertainties and risks described in “Part I, Item 1A. Risk Factors” in our 2013 Annual Report and in “Part II, Item 1A. Risk Factors” of this Quarterly Report on Form 10-Q.

Corporate Overview

Our Business

Del Monte Corporation (“DMC”) and its consolidated subsidiaries (together, “Del Monte” or the “Company”) is one of the country’s largest producers, distributors and marketers of premium quality, branded pet products and food products for the U.S. retail market, with pet food and pet snack brands for dogs and cats such as 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 and food brands such as Del Monte, Contadina, College Inn, S&W, and other brand names. We have one reportable segment: Pet Products, which manufactures, markets and sells branded and private label dry and wet pet food and pet snacks. The former Consumer Products segment; which manufactures, markets and sells branded and private label shelf-stable products, including fruit, vegetable, tomato and broth products; is now reported as discontinued operations. See Discontinued Operations below for details on the planned divestiture.

Discontinued Operations

On October 9, 2013, we entered into a Purchase Agreement (the “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”). Pursuant to the terms of the Purchase Agreement, we will sell to the Acquiror the interests of certain subsidiaries related to our Consumer Products business (the “Consumer Products Business”) and generally all assets primarily related to the Consumer Products Business (the “Transferred Assets”) for a purchase price of $1,675.0 million, subject to a post-closing working capital adjustment. The Acquiror will also assume related liabilities (other than certain specified excluded liabilities). The transaction is expected to close by early calendar year 2014.

Accordingly, the results of the Consumer Products Business have been reported as discontinued operations for all periods presented. Expenses allocated to discontinued operations are limited to selling, administrative and distribution expenses that were directly attributable to the Consumer Products Business. Consequently, certain expenses that have historically been allocated to the Consumer Business are not included in discontinued operations. The reporting of Adjusted EBITDA under the Company’s 7.625% Notes Indenture and credit agreements continues on the same basis as in previous periods.

We have combined cash flows from discontinued operations with cash flows from continuing operations within the operating, investing and financing categories in the Condensed Consolidated Statements of Cash Flows in the accompanying financial statements for all periods presented. The results of operations for the Consumer Products Business were previously reported as the Consumer Products segment.

Any net proceeds not committed for reinvestment within 12 months of the transaction closing date would be required to be used to repay debt. The ability to reinvest the net proceeds from the sale will be dependent upon the availability of suitable opportunities.

The discussion below in Executive Overview and Results of Operations refers to continuing operations only, unless otherwise stated.

Natural Balance

On July 15, 2013, we completed the acquisition of Natural Balance Pet Foods, Inc. (“Natural Balance”), maker of premium pet food for dogs and cats sold throughout North America. The total cost of the acquisition was $331.8 million. The financial results of Natural Balance are reported within the Pet Products segment.

 

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Merger

On March 8, 2011, we were acquired by an investor group led by funds affiliated with Kohlberg Kravis Roberts & Co. L.P. (“KKR”), Vestar Capital Partners (“Vestar”) and Centerview Capital, L.P. (“Centerview,” and together with KKR and Vestar, the “Sponsors”). The acquisition (also referred to as the “Merger”) was effected by the merger of Blue Merger Sub Inc. (“Blue Sub”) with and into Del Monte Foods Company (“DMFC”), with DMFC being the surviving corporation. As a result of the Merger, DMFC became a wholly-owned subsidiary of Blue Acquisition Group, Inc. (“Parent”). On April 26, 2011, DMFC merged with and into DMC, with DMC being the surviving corporation. As a result of this merger, DMC became a direct wholly-owned subsidiary of Parent.

Key Performance Indicators

The following tables set forth some of our key performance indicators that we utilize to assess results of operations (in millions, except percentages):

 

     Three Months Ended                           
     October 27,     October 28,                           
     2013     2012     Change      % Change     Volume (1)     Rate (2)  

Net sales

   $ 552.0      $ 497.0      $ 55.0         11.1     7.6     3.5

Cost of products sold

     355.7        328.5      $ 27.2         8.3     9.8     (1.5 %) 
  

 

 

   

 

 

   

 

 

        

Gross profit

     196.3        168.5      $ 27.8         16.5    

Selling, general and administrative expense (“SG&A”)

     124.5        111.4      $ 13.1         11.8    
  

 

 

   

 

 

   

 

 

        

Operating income

   $ 71.8      $ 57.1      $ 14.7         25.7    
  

 

 

   

 

 

   

 

 

        

Gross margin

     35.6     33.9         

SG&A as a % of net sales

     22.6     22.4         

Operating income margin

     13.0     11.5         
     Six Months Ended                           
     October 27,     October 28,                           
     2013     2012     Change      % Change     Volume (1)     Rate (2)  

Net sales

   $ 1,033.0      $ 955.3      $ 77.7         8.1     2.7     5.4

Cost of products sold

     657.8        639.7      $ 18.1         2.8     4.1     (1.3 %) 
  

 

 

   

 

 

   

 

 

        

Gross profit

     375.2        315.6      $ 59.6         18.9    

Selling, general and administrative expense

     237.2        230.4      $ 6.8         3.0    
  

 

 

   

 

 

   

 

 

        

Operating income

   $ 138.0      $ 85.2      $ 52.8         62.0    
  

 

 

   

 

 

   

 

 

        

Gross margin

     36.3     33.0         

SG&A as a % of net sales

     23.0     24.1         

Operating income margin

     13.4     8.9         

 

(1)   This column represents the change, as compared to the prior year period, due to volume and mix. Volume represents the change resulting from the number of units sold, exclusive of any change in price. Volume changes in the above tables include elasticity, the volume decline associated with price increases. Mix represents the change attributable to shifts in volume across products or channels.
(2)   This column represents the change, as compared to the prior year period, attributable to per unit changes in net sales or cost of products sold.

 

                                 Trailing Twelve  
     Three Months Ended      Six Months Ended      Months Ended  
     October 27,      October 28,      October 27,      October 28,      October 27,  
     2013      2012      2013      2012      2013  

Adjusted EBITDA (3)

   $ 142.0       $ 160.7       $ 281.5       $ 274.3       $ 594.9   

Ratio of net debt to Adjusted EBITDA (4)

     n/a         n/a         n/a         n/a         6.8  x 

 

(3)   Refer to “Reconciliation of Non-GAAP Financial Measures Adjusted EBITDA” below.
(4)   Net debt is calculated as total debt at the end of the period (including both short-term borrowings and long-term debt and excluding debt discount) less cash and cash equivalents, and includes both continuing and discontinued operations.

Executive Overview

Basis of Presentation – As discussed under “Corporate Overview – Discontinued Operations” above, the former Consumer Products segment is reported as discontinued operations for all periods presented. As a result, unless otherwise noted, the amounts discussed below are for continuing operations only.

 

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In the second quarter of fiscal 2014, we had net sales of $552.0 million, operating income of $71.8 million and net income of $28.3 million, compared to net sales of $497.0 million, operating income of $57.1 million and net income of $29.6 million in the second quarter of fiscal 2013. Adjusted EBITDA was $142.0 million for the three months ended October 27, 2013 and $160.7 million for the three months ended October 28, 2012. Refer to “Reconciliation of Non-GAAP Financial Measures—Adjusted EBITDA” below.

Net sales increased by 11.1% for the quarter. This increase was driven by the Natural Balance acquisition, as well as net pricing (pricing net of trade spending). Elasticity (the volume declines associated with price increases) and other volume declines partially offset these increases.

Operating income for the quarter increased 25.7% as compared to the year-ago quarter. The increase in operating income was driven primarily by net pricing, partially offset by higher SG&A expense, including marketing expense.

Loss from discontinued operations before income taxes was $162.2 million as compared to income from discontinued operations of $49.9 million in the year-ago quarter. This decrease was driven by a non-cash impairment loss of $193.8 million recorded in the second quarter of fiscal 2014. Additionally, lower sales as well as higher marketing expense and higher raw product costs contributed to the decline.

Adjusted EBITDA (including both continuing and discontinued operations) decreased 11.6% as compared to the year-ago quarter. The positive impact of increased operating income was more than offset by the unfavorable impact of discontinued operations (exclusive of the non-cash impairment loss which does not impact Adjusted EBITDA) and the less favorable cash impact of hedging activities. Gains and losses on economic hedging positions are recorded as other (income) expense. The cash impact of all hedging activities is reflected in Adjusted EBITDA.

Results of Operations

The following discussion provides a summary of operating results for the three and six months ended October 27, 2013, compared to the results for the three and six months ended October 28, 2012 (in millions, except percentages).

Net sales

Net sales increased 11.1% for the three months ended October 27, 2013 compared to the three months ended October 28, 2012. Net sales increased 8.1% for the six months ended October 27, 2013 compared to the six months ended October 28, 2012. These increases were driven by the Natural Balance acquisition, as well as net pricing (pricing net of trade spending). Elasticity (the volume declines associated with price increases) and other volume declines partially offset these increases.

Cost of products sold

Cost of products sold for the three months ended October 27, 2013 was $355.7 million, an increase of $27.2 million, or 8.3%, compared to $328.5 million for the three months ended October 28, 2012. Cost of products sold for the six months ended October 27, 2013 was $657.8 million, an increase of $18.1 million, or 2.8%, compared to $639.7 million for the six months ended October 28, 2012. These increases were primarily due to higher volumes resulting from the Natural Balance acquisition. Productivity savings were largely offset by increased ingredient costs.

While the impact of economic hedge transactions is reflected in Corporate other (income) expense, we are now utilizing and expect to continue to utilize hedge accounting treatment for certain of our hedging transactions which began to impact cost of products sold in the current quarter. See other (income) expense below.

Gross margin

Our gross margin percentage for the three months ended October 27, 2013 increased 1.7 points to 35.6% compared to 33.9% for the three months ended October 28, 2012. Net pricing benefitted gross margin by 2.2 margin points and cost savings benefitted gross margin by 1.0 margin points. These increases were partially offset by a 1.5 margin point decrease due to product mix, driven by higher sales of lower-margin pet food.

Our gross margin percentage for the six months ended October 27, 2013 increased 3.3 points to 36.3% compared to 33.0% for the six months ended October 28, 2012. Net pricing benefitted gross margin by 3.5 margin points and cost savings benefitted gross margin by 0.8 margin points. These increases were partially offset by a 1.0 margin point decrease due to product mix, driven by higher sales of lower-margin pet food.

 

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Selling, general and administrative expense

SG&A expense for the three months ended October 27, 2013 was $124.5 million, an increase of $13.1 million, or 11.8%, compared to $111.4 million for the six months ended October 28, 2012. This increase was primarily driven by the Natural Balance acquisition, including transaction costs and the amortization of intangibles, as well as higher marketing expense.

SG&A expense for the six months ended October 27, 2013 was $237.2 million, an increase of $6.8 million, or 3.0%, compared to $230.4 million for the six months ended October 28, 2012. This increase was primarily driven by the Natural Balance acquisition, including transaction costs and the amortization of intangibles, partially offset by lower marketing expense as we lap the new product introduction expenses incurred in the prior year.

Operating income

 

     Three Months Ended              
     October 27,     October 28,              
     2013     2012     Change     % Change  

Operating income:

        

Pet Products

   $ 84.1      $ 69.7      $ 14.4        20.7

Corporate (1)

     (12.3     (12.6     0.3        (2.4 %) 
  

 

 

   

 

 

   

 

 

   

Total

   $ 71.8      $ 57.1      $ 14.7        25.7
  

 

 

   

 

 

   

 

 

   
     Six Months Ended              
     October 27,     October 28,              
     2013     2012     Change     % Change  

Operating income:

        

Pet Products

   $ 164.5      $ 109.1      $ 55.4        50.8

Corporate (1)

     (26.5     (23.9     (2.6     10.9
  

 

 

   

 

 

   

 

 

   

Total

   $ 138.0      $ 85.2      $ 52.8        62.0
  

 

 

   

 

 

   

 

 

   

 

(1)   See “Note 12. Segment Information” to our condensed consolidated financial statements in this Quarterly Report on Form 10-Q for a description of Corporate expenses.

Our Pet Products segment operating income increased by $14.4 million, or 20.7%, to $84.1 million for the three months ended October 27, 2013 from $69.7 million for the three months ended October 28, 2013. Net pricing and higher volume from Natural Balance contributed to the increase in operating income, partially offset by higher SG&A expense, including marketing expense. Productivity savings were largely offset by increased ingredient costs.

Our Pet Products segment operating income increased by $55.4 million, or 50.8%, to $164.5 million for the six months ended October 27, 2013 from $109.1 million for the six months ended October 28, 2012. Net pricing contributed to the increase in operating income, partially offset by the increase in SG&A costs described above. Productivity savings were largely offset by increased ingredient costs.

Our Corporate expenses decreased by $0.3 million, or 2.4%, during the three months ended October 27, 2013 compared to the prior year period. Our Corporate expenses increased by $2.6 million, or 10.9%, during the six months ended October 27, 2013 compared to the prior year period. This increase was primarily due to the transaction costs related to the Natural Balance acquisition.

Interest expense

Interest expense decreased by $2.3 million, or 3.8%, to $58.8 million for the three months ended October 27, 2013 from $61.1 million for the three months ended October 28, 2012. This decrease was primarily driven by a lower average debt balance as a result of the excess annual cash flow payments.

Interest expense decreased by $7.8 million, or 6.2%, to $118.4 million for the six months ended October 27, 2013 from $126.2 million for the six months ended October 28, 2012. This decrease was primarily driven by a lower average debt balance as a result of the excess annual cash flow payments.

 

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Other (income) expense

Other income of $1.2 million for the three months ended October 27, 2013 was comprised primarily of gains on commodity hedging contracts partially offset by losses on interest rate swaps. Other income of $2.9 million for the three months ended October 28, 2012 was comprised primarily of gains on commodity hedging contracts, partially offset by losses on interest rate swaps.

Other income of $9.6 million for the six months ended October 27, 2013 was comprised primarily of gains on commodity hedging contracts. Other income of $27.2 million for the six months ended October 28, 2012 was comprised primarily of gains on commodity hedging contracts, partially offset by losses on interest rate swaps.

Provision for income taxes

The effective tax rate for continuing operations for the three months ended October 27, 2013 was 56.3% compared to 18.2% for the three months ended October 28, 2012. The effective tax rate for the prior year three month period was lower primarily due to the tax benefit for the period being impacted by an accrual for uncertain tax positions.

The effective tax rate for continuing operations for the six months ended October 27, 2013 was 56.2% compared to 49.3% for the six months ended October 28, 2012. The change in the effective tax rate for the six month period was primarily due to the prior year tax rate being benefited from a change in state tax law and an increase in the state tax rate in the current year.

The effective tax rates for continuing operations increased from previously reported rates as a result of the change in pre-tax income attributable to discontinued operations.

Income (loss) from discontinued operations

Loss from discontinued operations before income taxes was $162.2 million for the three months ended October 27, 2013 compared to income from discontinued operations before income taxes of $49.9 million for the three months ended October 28, 2012. Loss from discontinued operations, net of income taxes was $98.9 million for the three months ended October 27, 2013 compared to income from discontinued operations, net of income taxes of $30.5 million for the three months ended October 28, 2012. These changes were driven by a non-cash impairment loss of $193.8 million recorded in the second quarter of fiscal 2014. Additionally, lower sales as well as higher marketing expense and higher raw product costs contributed to the loss. Net pricing partially offset the loss.

Loss from discontinued operations before income taxes was $142.7 million for the six months ended October 27, 2013 compared to income from discontinued operations before income taxes of $69.0 million for the six months ended October 28, 2012. Loss from discontinued operations, net of income taxes was $85.6 million for the six months ended October 27, 2013 compared to income from discontinued operations, net of income taxes of $42.9 million for the six months ended October 28, 2012. These changes were driven by a non-cash impairment loss of $193.8 million recorded in the second quarter of fiscal 2014. Additionally, lower sales as well as higher marketing expense and higher raw product costs contributed to the loss. Net pricing partially offset the loss.

Reconciliation of Non-GAAP Financial Measures—Adjusted EBITDA

We report our financial results in accordance with generally accepted accounting principles in the United States (“GAAP”). In this Quarterly Report on Form 10-Q, we also provide certain non-GAAP financial measures — Adjusted EBITDA and ratio of net debt to Adjusted EBITDA. We present Adjusted EBITDA because we believe that this is an important supplemental measure relating to our financial condition since it is used in certain covenant calculations that may be required from time to time under the indenture that governs our 7.625% Senior Notes due 2019 (referred to therein as “EBITDA”) and the credit agreements relating to our term loan and revolver (referred to therein as “Consolidated EBITDA”). We present the ratio of net debt to Adjusted EBITDA because it is used internally to focus management on year-over-year changes in our leverage and we believe this information is also helpful to investors. We use Adjusted EBITDA in this leverage measure because we believe our investors are familiar with Adjusted EBITDA and that consistency in presentation of EBITDA-related measures is helpful to investors.

EBITDA is defined as income before interest expense, provision for income taxes, and depreciation and amortization. Adjusted EBITDA is defined as EBITDA, further adjusted as required by the definitions of “EBITDA” and “Consolidated EBITDA” contained in our indenture and credit agreements. Our presentation of Adjusted EBITDA has limitations as an analytical tool. Adjusted EBITDA is not a measure of liquidity or profitability and should not be considered as an alternative to net income, operating income, net cash provided by operating activities or any other measure determined in accordance with GAAP. Additionally, Adjusted EBITDA is not intended to be a measure of cash flow for management’s discretionary use, as it does not consider debt service requirements, obligations under the monitoring agreement with our Sponsors, capital expenditures or other non-discretionary expenditures that are not deducted from the measure.

 

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We caution investors that our presentation of Adjusted EBITDA and ratio of net debt to Adjusted EBITDA may not be comparable to similarly titled measures of other companies. We also caution investors that Adjusted EBITDA is currently presented on a basis consistent with prior periods, but the future presentation of Adjusted EBITDA, subsequent to the closing date of the sale of the Consumer Products Business, may differ from the current presentation.

The following table provides a reconciliation of Adjusted EBITDA for the periods indicated, (in millions):

 

                            Trailing Twelve  
    Three Months Ended     Six Months Ended     Months Ended  
    October 27, 2013     October 28, 2012     October 27, 2013     October 28, 2012     October 27, 2013  

Reconciliation:

         

Operating income—Quarter ended July 29, 2012

  $ —        $ —        $ —        $ 28.1      $ —     

Operating income—Quarter ended October 28, 2012

    —          57.1        —          57.1        —     

Operating income—Quarter ended January 27, 2013

    —          —          —          —          65.1   

Operating income—Quarter ended April 28, 2013

    —          —          —          —          82.8   

Operating income—Quarter ended July 28, 2013

    —          —          66.2        —          66.2   

Operating income—Quarter ended October 27, 2013

    71.8          71.8        —          71.8   

Discontinued operations before income taxes

    (162.2     49.9        (142.7     69.0        (58.3

Add back: Interest expense in discontinued operations

    0.3        0.2        0.4        0.3        0.8   

Other income (expense)

    1.2        2.9        9.6        27.2        (7.8

Adjustments to arrive at EBITDA:

         

Depreciation and amortization (1)

    39.0        39.2        74.5        80.3        148.7   

Amortization of debt issuance costs and debt
discount (2)

    (6.0     (5.8     (11.1     (11.9     (23.4
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

EBITDA

    (55.9     143.5        68.7        250.1        345.9   

Non-cash charges

    0.5        1.4        1.1        1.6        3.4   

Derivative transactions (3)

    (0.7     5.5        (2.9     (2.1     (1.7

Non-cash stock based compensation

    3.5        2.3        6.5        4.8        9.0   

Non-recurring (gains) losses (4)

    189.6        2.3        190.1        4.7        198.0   

Merger-related items

    1.1        —          8.7        —          8.7   

Business optimization charges

    2.8        3.6        5.1        10.5        21.7   

Other

    1.1        2.1        4.2        4.7        9.9   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Adjusted EBITDA

  $ 142.0      $ 160.7      $ 281.5      $ 274.3      $ 594.9   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net Debt (5)

          $ 4,050.2   

Ratio of net debt to Adjusted EBITDA

            6.8  x 

 

(1)   Includes $0.1 million, $3.0 million and $0.2 million of accelerated depreciation in the three months ended October 27, 2013 and October 28, 2013, and the trailing twelve months ended October 27, 2013, respectively, related to the closure of our Kingsburg, California facility. See “Note 18. Exit or Disposal Activities” to our consolidated financial statements in our 2013 Annual Report.
(2)   Represents adjustments to exclude amortization of debt issuance costs and debt discount reflected in depreciation and amortization because such costs are not deducted in arriving at operating income.
(3)   Represents adjustments needed to reflect only the cash impact of derivative transactions in the calculation of Adjusted EBITDA.
(4)   Includes a non-cash impairment loss of approximately $193.8 million for the three months, six months and trailing twelve months ended October 27, 2013 related to the former Consumer Products segment which is reported as discontinued operations.
(5)   Net debt is calculated as total debt at the end of the period (including both short-term borrowings and long-term debt and excluding debt discount) less cash and cash equivalents, and includes both continuing and discontinued operations.

Liquidity and Capital Resources

We have cash requirements that historically have varied based primarily on the timing of our inventory production for fruit, vegetable and tomato items. Inventory production relating to these items typically peaks during the first and second fiscal quarters. Our most significant cash needs relate to this seasonal inventory production associated with our Consumer Products Business, as well as to continuing cash requirements related to the production of our other products. In addition, our cash is used for the repayment, including interest and fees, of our primary debt obligations (i.e. our revolver and our term loans, our senior notes and, if necessary, our letters of credit), contributions to our pension plan, expenditures for capital assets, lease payments for some of our equipment and properties and other general business purposes. We have also used cash for acquisitions, legal settlements and transformation and restructuring plans. We may from time to time consider other uses for our cash flow from operations and other sources of cash. Such uses may include, but are not limited to, future acquisitions, transformation or restructuring plans. Our primary sources of cash are typically funds we receive as payment for the products we produce and sell and from our revolving credit facility. Upon closing of the sale of the Consumer Products Business, we do not expect our future cash requirements to continue to reflect these seasonal fluctuations.

 

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As of October 27, 2013 we had not made any contributions to our defined benefit pension plan for fiscal 2014. As of October 28, 2012, we had made contributions to our defined benefit pension plan of $15.0 million for fiscal 2013. We currently meet and plan to continue to meet the minimum funding levels required under the Pension Protection Act of 2006 (the “Act”). The Act imposes certain consequences on our defined benefit plan if it does not meet the minimum funding levels. We have made contributions in excess of our required minimum amounts during fiscal 2013 and 2012. Due to uncertainties of future funding levels as well as plan financial returns, we cannot predict whether we will continue to achieve specified plan funding thresholds. We will make a decision regarding fiscal 2014 contributions, if any, once the impact of the sale of the Consumer Products Business on the funded status of our defined benefit pension plan is known.

We believe that cash on hand, cash flow from operations and availability under our revolver will provide adequate funds for our working capital needs, planned capital expenditures, debt service obligations and planned pension plan contributions for at least the next 12 months.

On July 11, 2013, we purchased a minority equity interest in a co-packer of some of our dog products for $14.6 million. While we exercise significant influence over the co-packer, we do not hold a controlling interest in the company. As such, the investment is accounted for under the equity method and is stated at cost plus our share of undistributed earnings or losses.

On July 15, 2013, we completed the acquisition of Natural Balance, a California corporation and maker of premium pet food for dogs and cats sold throughout North America. The total cost of the acquisition was $331.8 million. The total cost of the acquisition is subject to a post-closing working capital adjustment which was initially due from us 90 days after closing. Final agreement of the working capital adjustment with the seller may not occur until more than 180 days after closing.

Discontinued Operations

On October 9, 2013, we entered into 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”). Pursuant to the terms of the Purchase Agreement, we will sell to the Acquiror the interests of certain subsidiaries related to our Consumer Products business (the “Consumer Products Business”) and generally all assets primarily related to the Consumer Products Business (the “Transferred Assets”) for a purchase price of $1,675.0 million, subject to a post-closing working capital adjustment. The Acquiror will also assume related liabilities (other than certain specified excluded liabilities). The transaction is expected to close by early calendar year 2014. Any net proceeds not committed for reinvestment within 12 months of the transaction closing date would be required to be used to repay debt. The ability to reinvest the net proceeds from the sale will be dependent upon the availability of suitable opportunities.

Our debt consists of the following, as of the dates indicated, (in millions) (1) :

 

     October 27,      April 29,  
     2013      2012  

Short-term borrowings:

     

Revolver

   $ 156.2       $ —     
  

 

 

    

 

 

 

Total short-term borrowings

   $ 156.2       $ —     
  

 

 

    

 

 

 

Long-term debt:

     

Term Loan Facility

   $ 2,607.4       $ 2,681.9   

7.625% Notes

     1,300.0         1,300.0   
  

 

 

    

 

 

 
     3,907.4         3,981.9   

Less unamortized discount

     4.2         4.7   

Less current portion

     13.2         74.5   
  

 

 

    

 

 

 

Total long-term debt

   $ 3,890.0       $ 3,902.7   
  

 

 

    

 

 

 

 

(1)   Includes continuing operations only.

Description of Indebtedness

The summary of our indebtedness and restrictive and financial covenants set forth below is qualified by reference to our senior secured term loan credit agreement, our senior secured asset-based revolving credit facility, our senior notes indenture, and the amendments thereto, all of which are set forth as exhibits to our public filings with the Securities and Exchange Commission (“SEC”).

Senior Secured Term Loan Credit Agreement

Our senior secured term loan credit agreement initially provided for a $2,700.0 million senior secured term loan B facility (with all related loan documents, and as amended from time to time, the “Term Loan Facility”) with a term of seven years.

 

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On February 5, 2013, we entered into an amendment to our Senior Secured Term Loan Credit Agreement. The amendment, among other things, (1) lowered the LIBOR rate floor on term loans under the credit agreement from 1.50% to 1.00% and the base rate floor from 2.50% to 2.00%; (2) added a leverage-based pricing step-down whereby, in the event our ratio of consolidated total debt to EBITDA is at or less than 5.75 to 1.00, the applicable interest margin decreases from 3.00% to 2.75% on LIBOR rate loans and from 2.00% to 1.75% on base rate loans; and (3) provided for an increase by $100 million in the aggregate principal amount of term loans outstanding.

Loans under the amended Term Loan Facility bear interest at a rate equal to an applicable margin, plus, at our option, either (i) a LIBOR rate (with a floor of 1.00%) or (ii) a base rate (with a floor of 2.00%) equal to the highest of (a) the federal funds rate plus 0.50%, (b) JPMorgan Chase Bank, N.A.’s “prime rate” and (c) the one-month LIBOR rate plus 1.00%. As of October 27, 2013, the applicable margin with respect to LIBOR borrowings is 3.00% and with respect to base rate borrowings is 2.00%.

The amended Term Loan Facility generally requires quarterly scheduled principal payments of 0.25% of the outstanding principal per quarter from March 31, 2013 to December 31, 2017. The balance is due in full on the maturity date of March 8, 2018. Under the Term Loan Facility, on June 27, 2013 we made a payment of $74.5 million representing the excess annual cash flow payment due for the fiscal year ended April 28, 2013. Scheduled principal payments with respect to the Term Loan Facility are subject to reduction following any mandatory or voluntary prepayments on terms and conditions set forth in the Senior Secured Term Loan Credit Agreement. As of October 27, 2013, the amount of outstanding loans under the Term Loan Facility was $2,607.4 million and the blended interest rate payable was 4.00%, or 5.09% after giving effect to our interest rate swaps. See “Note 7. Derivative Financial Instruments” to our condensed consolidated financial statements in this Quarterly Report on Form 10-Q for a discussion of our interest rate swaps.

The Senior Secured Term Loan Credit Agreement also requires us to prepay outstanding loans under the Term Loan Facility, subject to certain exceptions, with, among other things:

 

    50% (which percentage will be reduced to 25% if our leverage ratio is 5.5x or less and to 0% if our leverage ratio is 4.5x or less) of our annual excess cash flow, as defined in the Senior Secured Term Loan Credit Agreement;

 

    100% of the net cash proceeds of certain casualty events and non-ordinary course asset sales or other dispositions of property for a purchase price above $10 million, in each case, subject to our right to reinvest the proceeds; and

 

    100% of the net cash proceeds of any incurrence of debt, other than proceeds from debt permitted under the Senior Secured Term Loan Credit Agreement.

We have the right to request an additional $500.0 million plus an additional amount of secured indebtedness under the Term Loan Facility. Lenders under this facility are under no obligation to provide any such additional loans, and any such borrowings will be subject to customary conditions precedent, including satisfaction of a prescribed leverage ratio, subject to the identification of willing lenders and other customary conditions precedent.

Senior Secured Asset-Based Revolving Credit Agreement

Our senior secured asset-based revolving facility provides for senior secured financing of up to $750 million (with all related loan documents, and as amended from time to time, the “ABL Facility”) with a term of five years. We maintain the ABL Facility for flexibility to fund our seasonal working capital needs, which are affected by, among other things, the growing cycle of the fruits, vegetables and tomatoes we process, and for other general corporate purposes. The vast majority of our fruit, vegetable and tomato inventories are produced during the harvesting and packing months of June through October and depleted through the remaining seven months. Accordingly, our need to draw on the ABL Facility may fluctuate significantly during the year. We do not expect this seasonal volatility in cash requirements to continue upon closing of the planned sale of the Consumer Products Business.

Borrowings under the ABL Facility bear interest at an initial interest rate equal to an applicable margin, plus, at our option, either (i) a LIBOR rate, or (ii) a base rate equal to the highest of (a) the federal funds rate plus 0.50%, (b) Bank of America, N.A.’s “prime rate” and (c) the one-month LIBOR rate plus 1.00%. The applicable margin with respect to LIBOR borrowings is currently 2.0% (and may increase to 2.50% depending on average excess availability) and with respect to base rate borrowings is currently 1.00% (and may increase to 1.50% depending on average excess availability).

In addition to paying interest on outstanding principal under the ABL Facility, we are required to pay a commitment fee at an initial rate of 0.500% per annum in respect of the unutilized commitments thereunder. The commitment fee rate may be reduced to 0.375% depending on the amount of excess availability under the ABL Facility. We must also pay customary letter of credit fees and fronting fees for each letter of credit issued.

Availability under the ABL Facility is subject to a borrowing base. The borrowing base, determined at the time of calculation, is an amount equal to: (a) 85% of eligible accounts receivable and (b) the lesser of (1) 75% of the net book value of eligible inventory and (2) 85% of the net orderly liquidation value of eligible inventory, of the borrowers under the facility at such time, less customary reserves. The ABL Facility will mature, and the commitments thereunder will terminate, on March 8, 2016. We borrowed $222.2

 

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million under our ABL Facility during the three and six months ended October 27, 2013 and repaid a total of $66.0 million. As of October 27, 2013, there was $156.2 million of loans outstanding under the ABL Facility, the amount of letters of credit issued under the ABL Facility was $33.4 million and the net availability under the ABL Facility was $544.3 million. Following the closing date of the sale of the Consumer Products Business, we expect the net availability under the ABL Facility to decrease significantly as a result of the sale of receivables and inventory related to the Consumer Products Business.

The ABL Facility includes a sub-limit for letters of credit and for borrowings on same-day notice, referred to as “swingline loans.” No new letters of credit were issued under the ABL Facility on March 8, 2011 but certain letters of credit outstanding under a prior credit facility were deemed to be outstanding under the ABL Facility. We are the lead borrower under the ABL Facility and other domestic subsidiaries may be designated as borrowers on a joint and several basis.

The commitments under the ABL Facility may be increased, subject only to the consent of the new or existing lenders providing such increases, such that the aggregate principal amount of commitments does not exceed $1.0 billion. The lenders under this facility are under no obligation to provide any such additional commitments, and any increase in commitments will be subject to customary conditions precedent. Notwithstanding any such increase in the facility size, our ability to borrow under the facility will remain limited at all times by the borrowing base (to the extent the borrowing base is less than the commitments).

Senior Notes Due 2019

Our senior notes due February 15, 2019 have an aggregate principal amount of $1,300.0 million and a stated interest rate of 7.625% (the “7.625% Notes”). Interest on the 7.625% Notes is payable semi-annually on February 15 and August 15 of each year.

The 7.625% Notes are required to be fully and unconditionally guaranteed by each of our existing and future domestic restricted subsidiaries that guarantee our obligations under the Term Loan Facility and ABL Facility.

Prior to February 15, 2014, we have the option of redeeming (a) all or a part of the 7.625% Notes at 100% of the principal amount plus a “make whole” premium, or, using the proceeds from certain equity offerings and subject to certain conditions, (b) up to 35% of the then-outstanding 7.625% Notes at a premium of 107.625% of the aggregate principal amount and a special interest payment. Beginning on February 15, 2014, we may redeem all or a part of the 7.625% Notes at a premium ranging from 103.813% to 101.906% of the aggregate principal amount. Finally, beginning on February 15, 2016, we may redeem all or a part of the 7.625% Notes at face value. Any redemption as described above is subject to the concurrent payment of accrued and unpaid interest, if any, upon redemption.

Pursuant to the terms of a registration rights agreement, we were obligated, among other things, to use our commercially reasonable efforts to file and cause to become effective an exchange offer registration statement with the SEC with respect to a registered offer (the “Exchange Offer”) to exchange the 7.625% Notes for freely tradable notes having substantially identical terms as the 7.625% Notes. Substantially all of the 7.625% Notes were exchanged for substantially identical registered notes pursuant to an Exchange Offer that was consummated on December 16, 2011.

Security Interests and Guarantees

Indebtedness under the Term Loan Facility is generally secured by a first priority lien on substantially all of our assets other than inventories and accounts receivable, and by a second priority lien with respect to inventories and accounts receivable. The ABL Facility is generally secured by a first priority lien on our inventories and accounts receivable and by a second priority lien on substantially all of our other assets. The 7.625% Notes are our senior unsecured obligations and rank senior in right of payment to the existing and future indebtedness and other obligations that expressly provide for their subordination to the 7.625% Notes; rank equally in right of payment to all of the existing and future unsecured indebtedness; are effectively subordinated to all of the existing and future secured debt (including obligations under the Term Loan Facility and ABL Facility described above) to the extent of the value of the collateral securing such debt; and are structurally subordinated to all existing and future liabilities, including trade payables, of the non-guarantor subsidiaries, to the extent of the assets of those subsidiaries.

All our obligations under the senior secured term loan credit agreement and senior secured asset-based revolving facility agreement are unconditionally guaranteed by Parent and by substantially all our existing and future, direct and indirect, wholly-owned material restricted domestic subsidiaries, subject to certain exceptions. The 7.625% Notes are required to be fully and unconditionally guaranteed by each of our existing and future domestic restricted subsidiaries that guarantee our obligations under the Term Loan Facility and ABL Facility. Subsequent to the July acquisition described above, Natural Balance is expected to become a guarantor subsidiary under our debt agreements.

 

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Maturities

As of October 27, 2013, scheduled maturities of long-term debt (representing debt under the Term Loans and 7.625% Notes) are as follows (in millions) (1) :

 

2014 (remainder)

   $ —     

2015

     26.4   

2016

     26.4   

2017

     26.4   

2018

     2,528.2   

Thereafter

     1,300.0   

 

(1)   Does not reflect any excess cash flow or other principal prepayments that may be required under the terms of the senior secured term loan credit agreement, as described above.

Restrictive and Financial Covenants

The Term Loan Facility, ABL Facility and indenture related to our 7.625% Notes contain restrictive covenants. See “Note 5. Short-Term Borrowings and Long-Term Debt” to our consolidated financial statements in our 2013 Annual Report for additional information regarding the covenants.

The Term Loan Facility, ABL Facility and indenture related to our 7.625% Notes generally do not require that we comply with financial maintenance covenants. The ABL Facility, however, contains a financial covenant that applies if availability under the ABL Facility falls below a certain level.

The restrictive and financial covenants in the Term Loan Facility, the ABL Facility and indenture related to the 7.625% Notes may adversely affect our ability to finance our future operations or capital needs or engage in other business activities that may be in our interest, such as acquisitions.

We believe that we are currently in compliance with all of our applicable covenants and were in compliance therewith as of October 27, 2013. Compliance with these covenants is monitored periodically in order to assess the likelihood of continued compliance. Our ability to continue to comply with these covenants may be affected by events beyond our control. If we are unable to comply with the covenants under the Term Loan Facility, the ABL Facility and indenture related to the 7.625% Notes, there would be a default, which, if not waived, could result in the acceleration of a significant portion of our indebtedness. See “Part II, Item 1A. Risk Factors—Restrictive covenants in the Credit Facilities and the indenture governing the Notes may restrict our operational flexibility. If we fail to comply with these restrictions, we may be required to repay our debt, which would materially and adversely affect our financial position and results of operations” in our 2013 Annual Report.

Cash Flow

During the six months ended October 27, 2013, our cash and cash equivalents decreased by $578.6 million and during the six months ended October 28, 2012, our cash and cash equivalents decreased by $246.5 million.

 

     Six Months Ended  
     October 27,     October 28,  
     2013     2012  
     (in millions)  

Net cash used in operating activities

   $ (263.1   $ (101.5

Net cash used in investing activities

     (397.1     (54.2

Net cash provided by (used in) financing activities

     80.8        (89.8

Operating Activities

Cash used in operating activities was $263.1 million for the six months ended October 27, 2013 compared to cash used by operating activities of $101.5 million for the six months ended October 28, 2012. This change was driven by higher inventories related to the Consumer Products Business (included in discontinued operations) due to lower volume of sales than the prior year, as well as higher cash taxes.

 

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Typically, the cash requirements of the Consumer Products Business (in discontinued operations) vary significantly during the year to coincide with the seasonal growing cycles of fruit, vegetables and tomatoes. The vast majority of our fruit, vegetable and tomato inventories are produced during the packing season, from June through October, and then depleted during the remaining months of the fiscal year. As a result, the vast majority of our total operating cash flow is generated during the second half of the fiscal year.

Investing Activities

Cash used in investing activities was $397.1 million for the six months ended October 27, 2013 and $54.2 million for the six months ended October 28, 2012. During the six months ended October 27, 2013, we used $335.0 million for the acquisition of Natural Balance and $14.6 million to acquire a minority equity interest in a co-packer for some of our dog products. Capital spending was $47.6 million for the six months ended October 27, 2013 compared to $42.2 million for the six months ended October 28, 2012. In addition, we paid approximately $12.0 million for the purchase of a fruit processing plant and warehouse facility based in Yakima County, Washington out of the bankruptcy estate of Snokist Growers during the three months ended July 29, 2012. Capital spending for the remainder of fiscal 2014 is expected to be up to $50 million to $70 million and is expected to be funded by cash on hand and cash generated by operating activities. The actual amount of capital spending for the remainder of fiscal 2014 could be impacted by the timing of the close of the sale of the Consumer Products Business.

Financing Activities

During the first six months of fiscal 2014, we borrowed a net of $155.2 million in short-term borrowings, primarily related to $156.2 million of net Revolver borrowings, as a result of incurring seasonal borrowing for operations. During the first six months of fiscal 2014, we made $74.5 million in payments on long-term debt representing the excess annual cash flow payment due for the fiscal year ended April 28, 2013.

During the first six months of fiscal 2013, we had net borrowings of $1.3 million on our short term borrowings and made $91.1 million in payments on long-term debt representing the excess annual cash flow payment due for the fiscal year ended April 29, 2012.

Recently Issued Accounting Standards

In February 2013, the Financial Accounting Standards Board (“FASB”) issued an Accounting Standards Update (“ASU”) related to comprehensive income. The amendments require an entity to provide information about the amounts reclassified out of accumulated other comprehensive income by component. This new accounting pronouncement is effective for fiscal years and interim periods within those years beginning after December 15, 2012, with early adoption permitted. Accordingly, we have included the enhanced disclosure in “Note 10. Accumulated Other Comprehensive Loss” to our condensed consolidated financial statements in this Quarterly Report on Form 10-Q.

In March 2013, the FASB issued an ASU to clarify the applicable guidance for the release of foreign currency cumulative translation adjustments under GAAP. The amended guidance clarifies when cumulative translation adjustments should be released into net income in connection with (i) the loss of a controlling financial interest in a subsidiary or group of assets within a foreign entity or (ii) the partial sale of an equity method investment that is a foreign entity. The amended guidance also clarifies the types of events that result in the sale of an investment in a foreign entity. We are required to adopt this amended guidance prospectively for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2013. We do not expect the adoption of this guidance to have a material impact on our consolidated financial statements.

In July 2013, the FASB issued an ASU to clarify the presentation of unrecognized tax benefits when a net operating loss carryforward, a similar tax loss or a tax credit carryforward exists as of the reporting date. We are required to adopt this amended guidance for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2013. We do not expect the adoption of this guidance to have a material impact on our consolidated financial statements.

In July 2013, the FASB issued an ASU permitting the Fed Funds Effective Swap Rate to be used as a U.S. benchmark interest rate for hedge accounting purposes, in addition to the United States Treasury rate and London Interbank Offered Rate (“LIBOR”). In addition, the restriction on using different benchmark rates for similar hedges is removed. We are required to adopt these provisions prospectively for qualifying new or re-designated hedging relationships entered into on or after July 17, 2013. We do not expect the adoption of this guidance to have a material impact on our consolidated financial statements.

Critical Accounting Policies and Estimates

Our discussion and analysis of the financial condition and results of operations are based upon our financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States. The preparation of these financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses.

 

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On an ongoing basis, we reevaluate our estimates, including those related to trade promotions, goodwill and intangibles, retirement benefits and retained-insurance liabilities. Estimates in the assumptions used in the valuation of our stock compensation expense are updated periodically and reflect conditions that existed at the time of each new issuance of stock awards. We base estimates on historical experience and on various other assumptions that we believe to be reasonable under the circumstances, the results of which form the basis for making judgments about the book values of assets and liabilities that are not readily apparent from other sources. For all of these estimates, we caution that future events rarely develop exactly as forecasted, and, therefore, these estimates routinely require adjustment.

Management has discussed the selection of critical accounting policies and estimates with the Audit Committee of the Board of Directors, and the Audit Committee has reviewed our disclosure relating to critical accounting policies and estimates in this Quarterly Report on Form 10-Q. Our significant accounting policies are described in “Note 2. Significant Accounting Policies” to our consolidated financial statements in our 2013 Annual Report. The following is a summary of the more significant judgments and estimates used in the preparation of our financial statements:

Trade Promotions

Trade promotions are an important component of the sales and marketing of our products and are critical to the support of our business. Trade spending includes amounts paid to encourage retailers to offer temporary price reductions for the sale of our products to consumers, to advertise our products in their circulars, to obtain favorable display positions in their stores and to obtain shelf space. We accrue for trade promotions, primarily at the time products are sold to customers, by reducing sales and recording a corresponding accrued liability. The amount we accrue is based on an estimate of the level of performance of the trade promotion, which is dependent upon factors such as historical trends with similar promotions, expectations regarding customer and consumer participation, and sales and payment trends with similar previously offered programs. Our original estimated costs of trade promotions are reasonably likely to change in the future as a result of changes in trends with regard to customer and consumer participation, particularly for new programs and for programs related to the introduction of new products. We perform monthly evaluations of our outstanding trade promotions, making adjustments, where appropriate, to reflect changes in our estimates. The ultimate cost of a trade promotion program is dependent on the relative success of the events and the actions and level of deductions taken by our customers for amounts they consider due to them. Final determination of the permissible trade promotion amounts due to a customer generally may take up to 18 months from the product shipment date. Our evaluations during the three and six months ended October 27, 2013 resulted in a net reduction to the trade promotion liability and increase in net sales from continuing operations of $1.4 million for both periods. Our evaluations during the three and six months ended October 28, 2012 resulted in a net reduction to the trade promotion liability and increase in net sales from continuing operations of $0.4 million and $0.3 million, respectively. All of the adjustments noted above relate only to continuing operations and are not material to trade promotion expense for the respective periods.

Goodwill and Intangibles

Del Monte produces, distributes and markets products under many different brand names (also referred to as trademarks). During an acquisition, the purchase price is allocated to identifiable assets and liabilities, including brand names and other intangibles, based on estimated fair value, with any remaining purchase price recorded as goodwill. As a result of the Merger, we applied the acquisition method of accounting and established a new basis of accounting on March 8, 2011. Accordingly, each of our active brand names now has a value on our balance sheet.

We have evaluated our capitalized brand names and determined that some have lives that generally range from 5 to 25 years (“Amortizing Brands”) and others have indefinite lives (“Non-Amortizing Brands”). Non-Amortizing Brands typically have significant market share and a history of strong earnings and cash flow, which we expect to continue into the foreseeable future.

Amortizing Brands and customer relationships are amortized over their estimated lives. We review the asset groups containing Amortizing Brands and customer relationships (including related tangible assets) for impairment whenever events or changes in circumstances indicate that the book value of an asset group may not be recoverable. An asset or asset group is considered impaired if its book value exceeds the undiscounted future net cash flow the asset or asset group is expected to generate. If an asset or asset group is considered to be impaired, the impairment to be recognized is measured by the amount by which the book value of the asset exceeds its fair value. Non-Amortizing Brands and goodwill are not amortized, but are instead tested for impairment at least annually. Our annual impairment tests occur during the fourth quarter of our fiscal year. Non-Amortizing Brands are considered impaired if the book value exceeds the estimated fair value. The goodwill impairment test is a two-step process. Initially, we compare the book value of net assets to the fair value of each reporting unit that has goodwill assigned to it. If the fair value is determined to be less than the book value, a second step is performed to compute the amount of the impairment.

The estimated fair value of our Non-Amortizing Brands is determined using the relief from royalty method, which is based upon the estimated rent or royalty we would pay for the use of a brand name if we did not own it. For goodwill, the estimated fair value of a reporting unit is determined using the income approach, which is based on the cash flows that the unit is expected to generate over its

 

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remaining life, and the market approach, which is based on market multiples of similar businesses. Our reporting unit is the same as our operating segment—Pet Products—reflecting the way that we manage our business. Annually, we engage third-party valuation experts to assist in this process. Considerable management judgment is necessary in estimating future cash flows, market interest rates, discount rates and other factors affecting the valuation of goodwill and intangibles, including the operating and macroeconomic factors that may affect them. We use historical financial information, internal plans and projections, and industry information in making such estimates.

We did not recognize any impairment charges in continuing operations for our Amortizing Intangibles, Non-Amortizing Brands or goodwill during the three and six months ended October 27, 2013 and October 28, 2012. As of October 27, 2013, our Pet Products segment had $2,113.0 million of goodwill, $1,389.9 million of Non-Amortizing Brands, $31.0 million of Amortizing Brands, net of amortization and $758.0 million of customer relationships, net of amortization. The Meow Mix and Milk-Bone brands together, which are included in the Pet Products segment, comprise 55% of Non-Amortizing Brands. Beginning in the second quarter of fiscal 2013, the goodwill, Non-Amortizing Brands and Amortizing Brands of our former Consumer Products segment were reclassified to assets held for sale. See “Note 4. Discontinued Operations” to our condensed consolidated financial statements in this Quarterly Report on Form 10-Q.

Retirement Benefits

We sponsor a non-contributory defined benefit pension plan (“DB plan”), defined contribution plans, multi-employer plans and certain other unfunded retirement benefit plans for our eligible employees. The amount of DB plan benefits eligible retirees receive is based on their earnings and age. Retirees may also be eligible for medical, dental and life insurance benefits (“other benefits”) if they meet certain age and service requirements at retirement. Generally, other benefit costs are subject to plan maximums, such that the Company and retiree both share in the cost of these benefits.

Our Assumptions

We utilize third-party actuaries to assist us in calculating the expense and liabilities related to the DB plan benefits and other benefits. DB plan benefits and other benefits which are expected to be paid are expensed over the employees’ expected service period. The actuaries measure our annual DB plan benefits and other benefits expense by relying on certain assumptions made by us. Such assumptions include:

 

    The discount rate used to determine projected benefit obligation and net periodic benefit cost (DB plan benefits and other benefits);

 

    The expected long-term rate of return on assets (DB plan benefits);

 

    The rate of increase in compensation levels (DB plan benefits); and

 

    Other factors including employee turnover, retirement age, mortality and health care cost trend rates.

These assumptions reflect our historical experience and our best judgment regarding future expectations. The assumptions, the plan assets and the plan obligations are used to measure our annual DB plan benefits expense and other benefits expense.

Since the DB plan benefits and other benefits liabilities are measured on a discounted basis, the discount rate is a significant assumption. The discount rate was determined based on an analysis of interest rates for high-quality, long-term corporate debt at the measurement date. In order to appropriately match the bond maturities with expected future cash payments, we utilize differing bond portfolios to estimate the discount rates for the DB plan and for the other benefits. The discount rate used to determine DB plan and other benefits projected benefit obligation as of the balance sheet date is the rate in effect at the measurement date. The same rate is also used to determine DB plan and other benefits expense for the following fiscal year. The long-term rate of return for DB plan’s assets is based on our historical experience, our DB plan’s investment guidelines and our expectations for long-term rates of return. Our DB plan’s investment guidelines are established based upon an evaluation of market conditions, tolerance for risk and cash requirements for benefit payments.

During the three and six months ended October 27, 2013, for continuing operations, we recognized expense for our qualified DB plan of $0.3 million and $0.5 million respectively, and other benefits expense of $0.4 million and $0.8 million. Our remaining fiscal 2014 pension expense for our DB plan is currently estimated to be approximately $0.4 million and other benefits expense is currently estimated to be approximately $0.9 million. Our actual future pension and other benefit expense amounts may vary depending upon the accuracy of our original assumptions and future assumptions.

Stock Compensation Expense

We believe an effective way to align the interests of certain employees with those of our equity stakeholders is through employee stock-based incentives. Stock options are stock incentives in which employees benefit to the extent that the stock price for the stock underlying the option exceeds the strike price of the stock option before expiration. A stock option is the right to purchase a share of

 

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common stock at a predetermined exercise price. Restricted stock incentives are stock incentives in which employees receive the right to own shares of common stock and do not require the employee to pay an exercise price. Restricted stock incentives include restricted stock, restricted stock units, performance share units and performance accelerated restricted stock units. We follow the fair value method of accounting for stock-based compensation, under which employee stock option grants and other stock-based compensation are expensed over the vesting period, based on the fair value at the time the stock-based compensation is granted.

Subsequent to the Merger, Parent has issued to certain of our executive officers and other employees service-based stock options and performance-based stock options and restricted common stock. Service-based stock options generally vest in equal annual installments over a four or five-year period and generally have a ten-year term until expiration. Performance-based stock options granted prior to fiscal 2013 initially were to vest only if certain pre-determined performance criteria are met and also have a ten-year term. Certain shares of restricted common stock vested immediately, while certain other shares vest in equal annual installments over a three-year period.

Our Post Merger Stock Option Assumptions. We measure stock option expense for both service-based options and performance-based options at the date of grant using the Black-Scholes valuation model. This model estimates the fair value of the options based on a number of assumptions, such as interest rates, employee exercises, the current price and expected volatility of common stock and expected dividends. The fair value of service-based stock options granted during the six months ended October 27, 2013 was $2.1 million. The fair value of performance-based stock options granted during the six months ended October 27, 2013 was $1.0 million. The following table presents the weighted-average valuation assumptions used for the recognition of stock option expense for stock options granted during the six months ended October 27, 2013:

 

     Service-based     Performance-based  
     Options     Options  

Expected life (in years)

     5.9        5.9   

Expected volatility

     45.00     45.00

Risk-free interest rate

     1.03     1.03

Dividend yield

     0.00     0.00

Weighted average exercise price

   $ 5.95      $ 5.95   

Weighted average option value

   $ 2.57      $ 2.57   

Valuation of Restricted Common Stock. The fair value of restricted common stock is calculated by multiplying the price of Parent’s common stock on the date of grant by the number of shares granted.

Retained-Insurance Liabilities

Our business exposes us to the risk of liabilities arising out of our operations. For example, liabilities may arise out of claims of employees, customers or other third parties for personal injury or property damage occurring in the course of our operations. We manage these risks through various insurance contracts from third-party insurance carriers. We, however, retain an insurance risk for the deductible portion of each claim. For example, the deductible under our loss-sensitive worker’s compensation insurance policy is up to $0.5 million per claim. A third-party actuary is engaged to assist us in estimating the ultimate costs of certain retained insurance risks. Actuarial determination of our estimated retained-insurance liability is based upon the following factors:

 

    Losses which have been reported and incurred by us;

 

    Losses which we have knowledge of but have not yet been reported to us;

 

    Losses which we have no knowledge of but are projected based on historical information from both our Company and our industry; and

 

    The projected costs to resolve these estimated losses.

Our estimate of retained-insurance liabilities is subject to change as new events or circumstances develop which might materially impact the ultimate cost to settle these losses. For continuing operations, during the three and six months ended October 27, 2013 and October 28, 2012, we experienced no significant adjustments to our estimates.

 

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ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

We have a risk management program that was adopted with the objective of minimizing our exposure to changes in interest rates, commodity, transportation and other price and foreign currency exchange rates. We do not trade or use instruments with the objective of earning financial gains on price fluctuations alone or use instruments where there are not underlying exposures. We believe that the use of derivative instruments to manage risk is in our best interest. As of October 27, 2013, we had both cash flow and economic hedges.

During the six months ended October 27, 2013, we were primarily exposed to the risk of loss resulting from adverse changes in interest rates, commodity and other input prices as well as foreign currency exchange rates.

Interest Rates: Our debt primarily consists of floating rate term loans and fixed rate notes. We maintain our floating rate revolver for flexibility to fund seasonal working capital needs and for other uses of cash. Interest expense on our floating rate debt is typically calculated based on a fixed spread over a reference rate, such as LIBOR (also known as the Eurodollar rate). Therefore, fluctuations in market interest rates will cause interest expense increases or decreases on a given amount of floating rate debt.

From time to time, we manage a portion of our interest rate risk related to floating rate debt by entering into interest rate swaps in which we receive floating rate payments and make fixed rate payments. On April 12, 2011, we entered into interest rate swaps with a total notional amount of $900.0 million as the fixed rate payer. The interest rate swaps fix LIBOR at 3.029% for the term of the swaps. The swaps have an effective date of September 4, 2012 and a maturity date of September 1, 2015. On August 13, 2010, we entered into an interest rate swap with a notional amount of $300.0 million as the fixed rate payer. The interest rate swap fixes LIBOR at 1.368% for the term of the swap. The swap has an effective date of February 1, 2011 and a maturity date of February 3, 2014.

The fair values of the Company’s interest rate swaps from continuing operations were recorded as current liabilities of $26.7 million and non-current liabilities of $21.0 million at October 27, 2013. The fair values of the Company’s interest rate swaps from continuing operations were recorded as current liabilities of $28.4 million and non-current liabilities of $33.5 million at April 28, 2013.

Assuming average floating rate term loans during the period and average revolver borrowings, for the period equal to the trailing twelve months average, a hypothetical one percentage point increase in interest rates would increase interest expense by approximately $7.3 million for the six months ended October 27, 2013.

Commodities: Certain commodities such as soybean meal, corn, wheat, soybean oil, diesel fuel and natural gas (collectively, “commodity contracts”) are used in the production or transportation of our products. As part of our commodity risk management activities, we use derivative financial instruments, primarily futures, swaps, options and swaptions (an option on a swap), to reduce the effect of changing prices and as a mechanism to procure the underlying commodity where applicable. We account for these commodities derivatives as either economic or cash flow hedges. Changes in the value of economic hedges are recorded directly in earnings. For cash flow hedges, the effective portion of the derivative gains and losses is deferred in equity and recognized as part of cost of products sold in the appropriate period and the ineffective portion is recognized as other (income) expense.

On October 27, 2013, the fair values of our commodities hedges from continuing operations were recorded as current assets of $9.3 million and current liabilities of $10.6 million. On April 28, 2013, the fair values of our commodities hedges from continuing operations were recorded as current assets of $3.8 million and current liabilities of $10.6 million.

The sensitivity analyses presented below (in millions) reflect potential losses of fair value resulting from hypothetical changes in market prices related to commodities. Sensitivity analyses do not consider the actions we may take to mitigate our exposure to changes, nor do they consider the effects such hypothetical adverse changes may have on overall economic activity. Actual changes in market prices may differ from hypothetical changes.

 

     October 27,      April 28,  
     2013      2013  

Effect of a hypothetical 10% change in market price:

     

Commodity contracts

   $ 17.4       $ 26.4   

Foreign Currency: We manage our exposure to fluctuations in foreign currency exchange rates by entering into forward contracts from time to time to cover a portion of our projected expenditures paid in local currency. These contracts may have a term of up to 24 months. We account for these contracts as either economic or cash flow hedges. For cash flow hedges, the effective portion of derivative gains and losses is deferred in equity and recognized as part of cost of products sold in the appropriate period and the ineffective portion is recognized as other (income) expense. Changes in the value of the economic hedges are recorded directly in earnings. As of October 27, 2013, we did not have any outstanding foreign currency hedges because we did not believe it was in our best interest at the time. We may again in the future enter into foreign currency forward contracts.

 

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ITEM 4. CONTROLS AND PROCEDURES

Evaluation of Disclosure Controls and Procedures

We conducted an evaluation of the effectiveness of the design and operation of our disclosure controls and procedures, or “Disclosure Controls,” as of the end of the period covered by this Quarterly Report on Form 10-Q. This evaluation, or “Controls Evaluation” was performed under the supervision and with the participation of management, including our President and Chief Executive Officer (our “CEO”) and our Executive Vice President, Chief Financial Officer and Treasurer (our “CFO”). Disclosure Controls are controls and procedures designed to reasonably ensure that information required to be disclosed in our reports filed under the Exchange Act, such as this quarterly report, is recorded, processed, summarized and reported within the time periods specified in the U.S. Securities and Exchange Commission’s rules and forms. Disclosure Controls include, without limitation, controls and procedures designed to ensure that information required to be disclosed in our reports filed under the Securities Exchange Act of 1934, as amended, is accumulated and communicated to our management, including our CEO and CFO, or persons performing similar functions, as appropriate, to allow timely decisions regarding required disclosure. Our Disclosure Controls include some, but not all, components of our internal control over financial reporting.

Based upon the Controls Evaluation, and subject to the limitations noted in this Part I, Item 4, our CEO and CFO have concluded that as of the end of the period covered by this Quarterly Report on Form 10-Q, our Disclosure Controls were effective, with the exception of the infrequent and unusual item noted below, to provide reasonable assurance that information required to be disclosed in our Exchange Act reports is recorded, processed, summarized and reported within the time periods specified by the Securities and Exchange Commission, and that material information relating to Del Monte Corporation and its consolidated subsidiaries is made known to management, including the CEO and CFO, particularly during the period when our periodic reports are being prepared.

With regards to the exception mentioned above, and specific to the pending sale of the Consumer Products Business, we determined that our Disclosure Controls over non-routine transactions were not operating effectively to ensure that the adjustment to the book value of assets held for sale of the Consumer Products Business discontinued operations was recorded properly. We have determined that this exception is considered to be a material weakness. A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of our interim financial statements would not be prevented or detected on a timely basis.

Despite this finding, management believes that our condensed consolidated financial statements included in the Quarterly Report on Form 10-Q fairly present in all material respects our financial condition, results of operations and cash flows for the periods presented and that this Quarterly Report on Form 10-Q does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the periods covered by this report.

Limitations on the Effectiveness of Controls

Our management, including our CEO and CFO, does not expect that our Disclosure Controls or our internal controls will prevent all error and all fraud. A control system, no matter how well designed and operated, can provide only reasonable, not absolute, assurance that the control system’s objectives will be met. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within Del Monte have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of simple error or mistake. Controls can also be circumvented by the individual acts of some persons, by collusion of two or more people, or by management override of the controls. The design of any system of controls is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions. Over time, controls may become inadequate because of changes in conditions or deterioration in the degree of compliance with associated policies or procedures. Because of the inherent limitations in a cost-effective control system, misstatements due to error or fraud may occur and not be detected.

Changes in Internal Control Over Financial Reporting

There have not been any changes in our internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) of the Securities Exchange Act of 1934, as amended) during the most recent fiscal quarter that have materially affected or are reasonably likely to materially affect our internal control over financial reporting.

CEO and CFO Certifications

The certifications of the CEO and the CFO required by Rule 13a-14 of the Securities Exchange Act of 1934, as amended, or the “Rule 13a-14 Certifications” are filed as Exhibits 31.1 and 31.2 of this Quarterly Report on Form 10-Q. This Part I, Item 4 of the Quarterly Report on Form 10-Q should be read in conjunction with the Rule 13a-14 Certifications for a more complete understanding of the topics presented.

PART II. OTHER INFORMATION

ITEM 1. LEGAL PROCEEDINGS

For a description of material developments in our pending legal proceedings, see “Note 11. Legal Proceedings” in our Notes to the Condensed Consolidated Financial Statements included in Part I, Item 1 of this Quarterly Report on Form 10-Q, which is incorporated herein by reference.

 

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ITEM 1A. RISK FACTORS

This Quarterly Report on Form 10-Q, including the section entitled “Item 1. Financial Statements” and the section entitled “Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations,” contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, and Section 21E of the Securities Act of 1934. Statements that are not historical facts, including statements about our beliefs or expectations, are forward-looking statements. In some cases, you can identify forward-looking statements by the use of forward-looking terms such as “may,” “will,” “should,” “expect,” “intend,” “plan,” “anticipate,” “believe,” “estimate,” “predict,” “potential,” or “continue” or the negative of these terms or other comparable terms.

Forward-looking statements are based on our plans, estimates, expectations and assumptions as of the date of this Quarterly Report on Form 10-Q, and are subject to risks and uncertainties that may cause actual results to differ materially from the forward-looking statements. Accordingly, you should not place undue reliance on them.

For example:

On October 9, 2013, we entered into a purchase agreement (the “Purchase Agreement”), with Del Monte Pacific Limited (“DMPL”) and Del Monte Foods Consumer Products, Inc. (now known as “Del Monte Foods, Inc.”), a Delaware corporation and subsidiary of DMPL (the “Acquiror”) providing for the sale to the Acquiror of the issued and outstanding interests of certain subsidiaries related to our Consumer Products business (the “Consumer Products Business”) and all assets primarily related to the Consumer Products Business (other than certain specified excluded assets). There are a number of risks and uncertainties relating to the sale. For example:

 

    the sale may not be consummated or may not be consummated as currently anticipated;

 

    there can be no assurance other conditions to the closing of the sale will be satisfied or waived or that other events will not intervene to delay or result in the termination of the sale;

 

    failure of the sale to close, or a delay in its closing, may have a negative impact on our ability to pursue alternative strategic transactions or our ability to implement alternative business plans;

 

    pending the closing of the sale, the Purchase Agreement restricts us from engaging in certain actions without Acquiror’s approval, which could prevent us from pursuing opportunities that may arise prior to the closing of the sale;

 

    any delay in completing, or the failure to complete, the sale could have a negative impact on our business and our relationships with our customers or suppliers; and

 

    the attention of our management may be directed to transaction-related considerations and may be diverted from the day-to-day operations of our business and pursuit of our strategic initiatives.

In addition, we have incurred, and will continue to incur, significant costs, expenses and fees for professional services and other transaction costs in connection with the proposed sale, and many of these fees and costs are payable by us regardless of whether or not the sale is consummated.

In addition to the foregoing, other conditions may affect our business, financial condition and results of operations, and could cause actual results to differ materially from those contained in or suggested by any forward-looking statement. These factors include, among others:

 

    our debt levels and ability to service our debt and comply with covenants;

 

    the failure of the financial institutions that are part of the syndicate of our revolving credit facility to extend credit to us;

 

    competition, including pricing and promotional spending levels by competitors;

 

    our ability to launch new products and anticipate changing pet and consumer preferences;

 

    our ability to maintain or increase prices and persuade consumers to purchase our branded products versus lower-priced branded and private label offerings and shifts in consumer purchases to lower-priced or other value offerings, particularly during economic downturns;

 

    our ability to implement productivity initiatives to control or reduce costs;

 

    cost and availability of inputs, commodities, ingredients and other raw materials, including without limitation, energy (including natural gas), fuel, packaging, fruits, vegetables, tomatoes, grains (including corn), sugar, spices, meats, meat by-products, soybean meal, water, fats, oils and chemicals;

 

    logistics and other transportation-related costs;

 

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    hedging practices and the financial health of the counterparties to our hedging programs;

 

    currency and interest rate fluctuations;

 

    the loss of significant customers or a substantial reduction in orders from these customers or the financial difficulties, bankruptcy or other business disruption of any such customer;

 

    contaminated ingredients;

 

    allegations that our products cause injury or illness, product recalls and product liability claims and other litigation;

 

    transformative plans;

 

    strategic transaction endeavors, if any, including identification of appropriate targets and successful implementation;

 

    reliance on certain third parties, including co-packers, our broker and third-party distribution centers or managers;

 

    changes in, or the failure or inability to comply with, U.S., foreign and local governmental regulations, including packaging and labeling regulations, environmental regulations and import/export regulations or duties;

 

    sufficiency and effectiveness of marketing and trade promotion programs;

 

    failure of our information technology systems;

 

    adverse weather conditions, natural disasters, pestilences and other natural conditions that affect crop yields or other inputs or otherwise disrupt operations;

 

    any disruption to our manufacturing or supply chain, particularly any disruption in or shortage of seasonal pack;

 

    impairments in the book value of goodwill or other intangible assets;

 

    risks associated with foreign operations;

 

    pension costs and funding requirements;

 

    negative comments posted on social media which may influence consumers’ perception of our brands;

 

    protecting our intellectual property rights or intellectual property infringement or violation claims; and

 

    the control of substantially all of our common stock by a group of private investors and conflicts of interest potentially posed by such ownership.

Certain aspects of these and other factors are described in more detail in our filings with the Securities and Exchange Commission, including the section entitled “Factors that May Affect Our Future Results” in our 2013 Annual Report.

All forward-looking statements in this Quarterly Report on Form 10-Q are made only as of the date of this report. We undertake no obligation, other than as required by law, to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise.

ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS

(a) NONE.

(b) NONE.

(c) NONE.

See “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations – Liquidity and Capital Resources” in our 2013 Annual Report for a description of the restrictions on our ability to pay dividends.

ITEM 3. DEFAULTS UPON SENIOR SECURITIES

NONE.

ITEM 4. MINE SAFETY DISCLOSURES

NONE.

 

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ITEM 5. OTHER INFORMATION

(a) NONE.

(b) NONE.

 

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ITEM 6. EXHIBITS

 

(a) Exhibits .

 

Exhibit

Number

 

Description

   Incorporated by Reference
     Form    Exhibit    Filing Date
  *10.1   Third Amendment to Office Lease, dated June 26, 2013, between Del Monte Corporation and PPF OFF ONE MARITIME PLAZA, LP, (confidential treatment has been requested as to portions of the Exhibit)         
  *10.2   Fourth Amendment to Office Lease, dated September 17, 2013, between Del Monte Corporation and PPF OFF ONE MARITIME PLAZA, LP, (confidential treatment has been requested as to portions of the Exhibit)         
  *10.3   Purchase Agreement among Del Monte Corporation, Del Monte Foods Consumer Products, Inc. and, solely for the purposes of Section 11.20 herein, Del Monte Pacific Limited dated as of October 9, 2013         
  *10.4**   Letter Agreement, dated as of October 18, 2013, between Del Monte Corporation and Nils Lommerin         
  *10.5**   Independent Director Compensation Plan, dated October 25, 2013         
  *10.6   Seventh Amendment to the Restated Del Monte Foods Retail Brokerage Agreement between Del Monte Corporation and Advantage Sales and Marketing LLC, dated February 15, 2013 (confidential treatment has been requested as to portions of the Exhibit)         
  *31.1   Certification of the Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002      
  *31.2   Certification of the Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002      
  *32.1   Certification of the Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002      
  *32.2   Certification of the Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002      
^101.INS   XBRL Instance Document      
^101.SCH   XBRL Taxonomy Extension Schema Document      
^101.CAL   XBRL Taxonomy Extension Calculation Linkbase Document      
^101.DEF   XBRL Taxonomy Extension Definition Linkbase Document      
^101.LAB   XBRL Taxonomy Extension Label Linkbase Document      
^101.PRE   XBRL Taxonomy Extension Presentation Linkbase Document      

 

* Filed or furnished herewith
** Indicates a management contract or compensatory plan or arrangement
^ Furnished herewith

 

38


Table of Contents

XBRL (eXtensible Business Reporting Language) information is furnished and not filed or a part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, is deemed not filed for purposes of Section 18 of the Securities Exchange Act of 1934, and otherwise is not subject to liability under these sections.

 

39


Table of Contents

SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

DEL MONTE CORPORATION
By:     /s/ David J. West
  David J. West
  President and Chief Executive Officer; Director
By:     /s/ Larry E. Bodner
  Larry E. Bodner
  Executive Vice President,
  Chief Financial Officer and Treasurer

Dated: December 9, 2013

 

40

Exhibit 10.1

 

Certain portions of this agreement, for which confidential treatment has been requested,

have been omitted and filed separately with the Securities and Exchange Commission.

Sections of the agreement where portions have been omitted have been identified in the text.

THIRD AMENDMENT TO OFFICE LEASE

THIS THIRD AMENDMENT TO OFFICE LEASE ( “Third Amendment” ) is entered into as of June 26, 2013 (the “Third Amendment Effective Date” ), by and between PPF OFF ONE MARITIME PLAZA, LP, a Delaware limited partnership ( “Landlord” ), and DEL MONTE CORPORATION, a Delaware corporation ( “Tenant” ), with reference to the following facts:

 

  A. Landlord and Tenant are parties to that certain Office Lease Agreement dated as of October 27, 2009 (the “Original Lease” ), as amended by that certain First Amendment dated as of January 21, 2011 (the “First Amendment” ) and by that certain Second Amendment to Office Lease dated as of February 1, 2011 (the “Second Amendment” ), pursuant to which Landlord leases to Tenant certain space containing 152,917 rentable square feet (the “Premises” ) on the second (2nd), third (3rd) fourth (4th), sixth (6th), seventh (7th), twenty-fourth (24th) and twenty-fifth (25th) floors of the building located at One Maritime Plaza, San Francisco, California (the “Building” ). The Original Lease, as amended by the First Amendment and the Second Amendment, is referred to herein as the “Lease .

 

  B. Pursuant to the provisions of Section 4(b) of the Original Lease, Tenant is entitled to an abatement of Base Rent payable for the Premises for the calendar months of [***] * (the “Original Abatement Months” ), in the aggregate amount of $ [***] * (the “Remaining Abated Rent” ).

 

  C. Landlord desires to allow Tenant to have an abatement of the Base Rent payable under the Lease during the calendar months of [***] * (during which months Tenant is not otherwise currently entitled to any abatement of Base Rent pursuant to the provisions of the Lease), said months being collectively referred to herein as the “2013 Abatement Period” , in an amount equal to the Remaining Abated Rent and to eliminate the abatement of Base Rent payable during the Original Abatement Months; Tenant is amenable to the reallocation of the Remaining Abated Rent to the 2013 Abatement Period.

NOW, THEREFORE, in consideration of the above recitals which by this reference are incorporated herein, the mutual covenants and conditions contained herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:

 

*   CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION

 

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1. Abatement .

(a) 2013 Abatement Period . Tenant shall be entitled to an abatement of Base Rent payable for the Premises during the 2013 Abatement Period as follows:

 

Applicable Month
of 2013 Abatement

   Originally Scheduled
Base Rent
    Base Rent 
Abated
    Base Rent 
Payable
 

  [***] *

   $ [***] *     $ [***] *     $ [***] *  

Notwithstanding the foregoing, if Tenant is in Monetary Default prior to the expiration of the 2013 Abatement Period, there will be no further abatement of Base Rent pursuant to this Third Amendment during the remainder of the 2013 Abatement Period unless and until such Monetary Default is cured; upon any cure of such Monetary Default by Tenant, any remaining scheduled abatement of Base Rent pursuant to this Section 1 will take place as scheduled, and any abatement of Base Rent which ceased or did not occur as a result of the pendency of such Monetary Default will commence upon the date that is thirty (30) days following Tenant’s cure of such Monetary Default.

(b) Original Abatement Period . Section 4(b) of the Original Lease is hereby amended to remove from the definition of the Abatement Period the [***] * full calendar months following the Commencement Date (i.e., the Original Abatement Period), and Tenant acknowledges that during the Original Abatement Period, Tenant will pay Base Rent for the Premises in accordance with the terms of the schedule set forth in Section 5(e) of the Basic Lease Provisions in the Original Lease.

2. Miscellaneous.

(a) This Third Amendment sets forth the entire agreement between the parties with respect to the matters set forth herein. There have been no additional oral or written representations or agreements.

(b) Except as herein modified or amended, the provisions, conditions and terms of the Lease shall remain unchanged and in full force and effect.

(c) In the case of any inconsistency between the provisions of the Lease and this Third Amendment, the provisions of this Third Amendment shall govern and control.

 

*   CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION

 

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(d) Submission of this Third Amendment by Landlord is not an offer to enter into this Third Amendment but rather is a solicitation for such an offer by Tenant. Landlord shall not be bound by this Third Amendment until Landlord has executed and delivered the same to Tenant.

(e) The capitalized terms used in this Third Amendment shall have the same definitions as set forth in the Lease to the extent that such capitalized terms are defined therein and not redefined in this Third Amendment.

(f) Tenant hereby represents to Landlord that Tenant has dealt with no broker in connection with this Third Amendment. Tenant agrees to defend, indemnify and hold Landlord harmless from all claims of any brokers claiming to have represented Tenant in connection with this Third Amendment. Landlord hereby represents to Tenant that Landlord has dealt with no broker in connection with this Third Amendment. Landlord agrees to defend, indemnify and hold Tenant harmless from all claims of any brokers claiming to have represented Landlord in connection with this Third Amendment.

(g) Each signatory of this Third Amendment represents hereby that he or she has the authority to execute and deliver the same on behalf of the party hereto for which such signatory is acting.

This Third Amendment may be executed in multiple counterparts each of which is deemed an original but together constitute one and the same instrument. This Third Amendment may be executed in so-called “pdf” format and each party has the right to rely upon a pdf counterpart of this Third Amendment signed by the other party to the same extent as if such party had received an original counterpart.

[SIGNATURES ARE ON FOLLOWING PAGE]

 

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IN WITNESS WHEREOF , Landlord and Tenant have duly executed this Third Amendment as of the Third Amendment Effective Date.

 

LANDLORD:   
PPF OFF ONE MARITIME PLAZA, LP   
a Delaware limited partnership   
By:  

PPF OFF GP, LLC, a Delaware limited liability company,

its General Partner

  
  By:  

PPF OFF, LLC,

a Delaware limited liability company, its Member

  
    By:   PPF OP, LP, a Delaware limited partnership, its Member   
      By:  

PPF OPGP, LLC,

a Delaware limited liability company, its General Partner

  
        By:   Prime Property Fund, LLC, a Delaware limited liability company, its Member   
          By:   Morgan Stanley Real Estate Advisor, Inc., a Delaware corporation, its Manager   
            By:  

/s/ Keith Fink

  
              Name: Keith Fink   
              Title:   Executive Director   

 

TENANT:

DEL MONTE CORPORATION,

a Delaware corporation

By:  

/s/ John Stier

Print Name: John Stier
Its:   Director
By:  

 

Print Name:                                                                   
Its:    

 

-4-

Exhibit 10.2

 

Certain portions of this agreement, for which confidential treatment has been requested,

have been omitted and filed separately with the Securities and Exchange Commission.

Sections of the agreement where portions have been omitted have been identified in the text.

FOURTH AMENDMENT TO LEASE

THIS FOURTH AMENDMENT TO LEASE (“ Fourth Amendment ”) is entered into as of September 17, 2013 (the “ Fourth Amendment Effective Date ”), by and between PPF OFF ONE MARITIME PLAZA, LP, a Delaware limited partnership (“ Landlord ”) and DEL MONTE CORPORATION, a Delaware corporation (“ Tenant ”) with reference to the following facts:

 

A. Landlord and Tenant are parties to that certain Office Lease Agreement dated as of October 27, 2009 (the “ Original Lease ”), as amended by that certain First Amendment dated as of January 21, 2011 (the “ First Amendment ”), by that certain Second Amendment to Office Lease dated as of February 1, 2011 (the “ Second Amendment ”) and by that certain Third Amendment to Lease dated as of June 26, 2013 (the “ Third Amendment ”) (the Original Lease, as so amended, being referred to herein as the “ Lease ”), pursuant to which Landlord leases to Tenant certain space containing 152,917 rentable square feet (the “ Premises ”) on the second (2nd), third (3rd) fourth (4th), sixth (6th), seventh (7th), twenty-fourth (24th) and twenty-fifth (25th) floors of the building located at One Maritime Plaza, San Francisco, California (the “ Building ”)

 

B. Landlord and Tenant agree that additional space containing approximately 6,323 rentable square feet in the building located at Nine Maritime Plaza (“ Nine Maritime ”, which is adjacent to the Building and part of the same complex in which the Building is located), shown on Exhibit A hereto (the “ Expansion Space ”) shall be added to the Premises, on the terms and conditions set forth herein.

NOW, THEREFORE , in consideration of the above recitals which by this reference are incorporated herein, the mutual covenants and conditions contained herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:

1. Expansion . Effective as of the date (the “ Expansion Date ”) that is the earlier to occur of (a) February 15, 2014 (the “ Target Expansion Date ”) and (b) the date upon which Tenant first occupies the Expansion Space for the purpose of conducting Tenant’s business operations therein (the “ Expansion Date ”), the Premises, as defined in the Lease, is increased by the addition of the Expansion Space, and from and after the Expansion Date, the Current Premises and the Expansion Space, collectively, containing 159,240 rentable square feet of space, shall be deemed the “Premises” for all purposes under the Lease. Landlord will deliver possession of the Expansion Space to Tenant for the purpose of allowing Tenant to construct Tenant Improvements (defined in the Work Agreement attached hereto as Exhibit C (the “ Work Agreement ”) therein within three (3) Business Days following the mutual execution and delivery of this Fourth Amendment (the “ Target Delivery Date ”). The term for the Expansion Space (the “ Expansion Space Term ”) shall commence on the Expansion Date and end on the Expiration Date (i.e., March 31, 2021). The Expansion Date shall be delayed to the extent that Landlord fails to achieve Delivery on the Target Delivery Date for any reason, including, but not limited to, the holding over

 

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by the current occupant of the Expansion Space. Any such delay in the Expansion Date shall not subject Landlord to any liability for any loss or damage resulting therefrom. Promptly following the Expansion Date, Landlord and Tenant shall enter into a letter agreement in the form attached hereto as Exhibit B (the “ Expansion Confirmation Letter ”), confirming the Expansion Date.

2. Base Rent .

(a) Generally . In addition to Tenant’s obligation to pay Base Rent for the Current Premises, during the Expansion Space Term, Tenant shall pay Landlord Base Rent for the Expansion Space as follows:

 

Months of Expansion
Space Term

   Annual Rate Per 
Rentable Square Foot
    Monthly Base Rent  

1 - 12*

   $ [***] *     $ [***] * ** 

13 - 24

   $ [***] *     $ [***] *  

25 - 36

   $ [***] *     $ [***] *  

37 - 48

   $ [***] *     $ [***] *  

49 - 60

   $ [***] *     $ [***] *  

61 - 72

   $ [***] *     $ [***] *  

73 - 84

   $ [***] *     $ [***] *  

85 - Expiration Date

   $ [***] *     $ [***] *  

 

* If the Expansion Date is other than the first (1st) day of a calendar month, then, for the purposes of the chart above, “Month 1” shall mean the remainder of the calendar month in which the Expansion Date occurs and the next-succeeding full calendar month.
** Subject to abatement pursuant to Section 2(b) below.

(b) Abatement . So long as Tenant is not in Monetary Default under the Lease (as amended hereby), Tenant shall be entitled to an abatement of Base Rent payable for the Expansion Space only for the [***] * months of the Expansion Space Term (the “ Expansion Abatement Period ”). The total amount of Base Rent abated during the Expansion Abatement Period in the amount of $[***] * is referred to herein as the “ Expansion Abated Rent ”. If Tenant is in Monetary Default at any time during the Expansion Space Term, and such Monetary Default occurs prior to the expiration of the Expansion Abatement Period, there will be no further abatement of Base Rent pursuant to the provisions of this Section 2(b) during the remainder of the Expansion Abatement Period unless and until such Monetary Default is cured; upon any cure of such Monetary Default by Tenant, any remaining scheduled abatement of Base Rent pursuant to the provisions of this Section 2(b) will take place as scheduled, and any abatement of Base Rent which ceased or did not occur as a result of a pendency of such Monetary Default will commence upon the date that is thirty (30) days following Tenant’s cure of such Monetary Default.

 

*   CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION

 

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3. Operating Expenses, Taxes and Insurance Expenses . Commencing on January 1, 2015 and thereafter during the remainder of the Expansion Space Term, Tenant will pay Tenant’s Share of Operating Expenses, Taxes and Insurance Expenses for the Expansion Space in excess of the amount of the Base Year Expense Amount, the Base Year Tax Amount or the Base Year Insurance Amount, as applicable. With respect to the Expansion Space, the foregoing capitalized terms are defined as follows:

(a) Tenant’s Share . Tenant’s Share for the Expansion Space only shall be 47.12% (i.e., 6,323/13,418);

(b) Base Year . The Operating Expense Base Year, the Tax Base Year and the Insurance Expense Base Year for the Expansion Space only shall be the calendar year 2014, and the Base Year Expense Amount, the Base Year Tax Amount and the Base Year Insurance Amount shall be the amount of such expenses during such Base Year;

(c) Operating Expenses, Taxes and Insurance Expenses . The terms “Operating Expenses”, “Taxes” and “Insurance Expenses” shall, for the purpose of application to Expansion Space, have the same meanings as are given such terms in the Lease, provided that, in each case, references to the “Building” in the applicable definition shall mean references to Nine Maritime. For example, Operating Expenses shall mean the expenses actually paid by Landlord for operating, servicing, managing, maintaining and repairing the Property, Nine Maritime and all related Common Areas, subject to the qualifications and exclusions set forth in Section 5(b) of the Lease, with all references therein to “Building” being deemed references to Nine Maritime.

4. Improvements to Expansion Space.

(a) Condition of Expansion Space . Tenant has inspected the Expansion Space and, except as may be expressly provided otherwise in this Fourth Amendment (including the Work Agreement), agrees to accept the same “as is” without any agreements, representations, understandings or obligations on the part of Landlord to (i) perform any alterations, additions, repairs or improvements, (ii) fund or otherwise pay for any alterations, additions, repairs or improvements to the Expansion Space, or (iii) grant Tenant any free rent, concessions, credits or contributions of money with respect to the Expansion Space. Provided, however, that, subject to the final sentence of this Section 4(a), Landlord represents to Tenant that as of the Expansion Date (i) all base building systems (i.e., HVAC, plumbing and electrical) generally serving Nine Maritime, as opposed to building systems which exclusively serve the Premises, shall be in good working order and in a sufficient capacity to service the Expansion Space for occupancy by Tenant for office purposes at normal density levels and (ii) the Expansion Space shall be delivered to Tenant in broom clean condition, except as otherwise specifically provided in the Work Agreement. Notwithstanding the foregoing, Tenant acknowledges that, as of Landlord’s delivery of the Expansion Space to Tenant, Landlord may be in the process of performing certain upgrades to the base building HVAC system serving Nine Maritime; in such event, Landlord agrees that such base building HVAC system upgrades will be completed on or before the date of completion of Tenant’s Tenant Improvements within the Expansion Space.

(b) Responsibility for Improvements to Expansion Space . Tenant may construct Tenant Improvements in the Expansion Space in accordance with the Work Agreement and Tenant shall be entitled to an Allowance in connection with such work as more fully described in the Work Agreement.

 

-3-


5. Alterations and Improvements/Liens . For the purpose of application to the Expansion Space only, the provisions of Section 18(a) of the Lease defining Permitted Alterations shall deemed revised to reduce the reference therein to “$ [***] * per floor for any project or series or related projects” to “$[***] * for any project or series of related projects”.

6. Disability Access Notice Requirements . In accordance with Chapter 38 of the San Francisco Administrative Code, the Disability Access Obligations Notice attached hereto as Exhibit C (the “ Access Notice ”) is incorporated herein by this reference. Execution of this Fourth Amendment by the parties hereto shall be deemed to constitute and represent the parties’ acknowledgement and execution of the Access Notice, notwithstanding that such Access Notice may not be separately executed. Article 10 of the Original Lease sets forth the parties’ respective obligations regarding the performance of and payment for disability access improvements. Further, each party shall use reasonable efforts to notify the other of alterations the notifying party may make to or affecting the Expansion Space or Nine Maritime that might impact accessibility under federal and state disability access laws. Such notification regarding alterations shall in no event be construed to limit Tenant’s obligations or to expand Tenant’s rights under the Lease (including, without limitation, Article 18 of the Original Lease), and, without limiting the generality of the foregoing, in no event shall such notification be deemed to constitute any notice required to be given by Tenant to Landlord under any other provision of the Lease.

7. Miscellaneous .

(a) This Fourth Amendment and the attached exhibits, which are hereby incorporated into and made a part of this Fourth Amendment, set forth the entire agreement between the parties with respect to the matters set forth herein. There have been no additional oral or written representations or agreements.

(b) Except as herein modified or amended, the provisions, conditions and terms of the Lease shall remain unchanged and in full force and effect.

(c) In the case of any inconsistency between the provisions of the Lease and this Fourth Amendment, the provisions of this Fourth Amendment shall govern and control.

(d) Submission of this Fourth Amendment by Landlord is not an offer to enter into this Fourth Amendment. Landlord shall not be bound by this Fourth Amendment until Landlord has executed and delivered the same to Tenant.

(e) The capitalized terms used in this Fourth Amendment shall have the same definitions as set forth in the Lease to the extent that such capitalized terms are defined therein and not redefined in this Fourth Amendment.

(f) Tenant hereby represents to Landlord that Tenant has dealt with no broker in connection with this Fourth Amendment, other than The CAC Group (“ Tenant’s Broker ”). Tenant agrees to defend, indemnify and hold Landlord harmless from all claims of any brokers, other than Tenant’s Broker, claiming to have represented Tenant in connection with this Fourth Amendment.

 

*   CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION

 

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Landlord hereby represents, to Tenant that Landlord has dealt with no broker in connection with this Fourth Amendment, other than CBRE, Inc. Landlord agrees to defend, indemnify and hold Tenant harmless from all claims of any brokers claiming to have represented Landlord in connection with this Fourth Amendment.

(g) Each signatory of this Fourth Amendment represents hereby that he or she has the authority to execute and deliver the same on behalf of the party hereto for which such signatory is acting.

(h) Tenant represents and warrants to Landlord that Tenant is currently in compliance with and shall at all times through and including the Termination Date (including any extension thereof), remain in compliance with the regulations of the Office of Foreign Asset Control (“ OFAC ”) of the Department of the Treasury and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action relating thereto.

(i) The Expansion Space has not undergone an inspection by a Certified Access Specialist (CASp). This notice is given pursuant to California Civil Code Section 1938.

(j) This Fourth Amendment may be executed in multiple counterparts each of which is deemed an original but together constitute one and the same instrument. This Fourth Amendment may be executed in so-called “pdf’ format and each party has the right to rely upon a pdf counterpart of this Fourth Amendment signed by the other party to the same extent as if such party had received an original counterpart.

[SIGNATURES ON FOLLOWING PAGE]

 

-5-


IN WITNESS WHEREOF , Landlord and Tenant have duly executed this Fourth Amendment as of the Fourth Amendment Effective Date.

 

LANDLORD:   
PPF OFF ONE MARITIME PLAZA, LP , a Delaware limited partnership   

By:

 

PPF OFF GP, LLC, a Delaware limited liability company,

its General Partner

  
  By:  

PPF OFF, LLC,

a Delaware limited liability company, its Member

  
    By:   PPF OP, LP, a Delaware limited partnership, its Member   
      By:  

PPF OPGP, LLC,

a Delaware limited liability company, its General Partner

  
        By:   Prime Property Fund, LLC, a Delaware limited liability company, its Member   
            By:   Morgan Stanley Real Estate Advisor, Inc., a Delaware corporation, its Investment Advisor   
              By:  

/s/ Keith Fink

  
                Name: Keith Fink   
                Title:   Executive Director   

 

TENANT:

DEL MONTE CORPORATION,

a Delaware corporation

By:  

/s/ John Stier

Print Name: John Stier
Its:   Director
By:  

 

Print Name:                                                                     
Its:    

 

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EXHIBIT A

EXPANSION SPACE

 

LOGO


EXHIBIT B

WORK AGREEMENT

THIS WORK AGREEMENT ( Work Agreement ”) is attached to and made a part of that certain Fourth Amendment to Lease (the “ Fourth Amendment ”) between PPF OFF ONE MARITIME PLAZA, LP , a Delaware limited partnership ( Landlord ”), and DEL MONTE CORPORATION , a Delaware corporation ( Tenant ”). All capitalized terms used but not defined herein shall have the respective meanings given such terms in the Fourth Amendment or the Lease (as defined in the Fourth Amendment). This Work Agreement shall set forth the terms and conditions relating to Tenant’s construction of the Tenant Improvements in the Expansion Space.

SECTION 1

LANDLORD’S WORK

1.1 Landlord’s Work .

1.1.1 Landlord, at its sole cost and expense, will perform the work necessary, using building-standard plans and finishes, to cause the path of travel to the Expansion Space, as well as the restrooms serving the Expansion Space, to comply with all Laws, including the Americans with Disabilities Act, Title 24 and corresponding state law provisions regarding accessibility (but not with respect to any compliance upgrades required that result from additional accessibility requirements, if any, arising from Tenant’s particular employees or Tenant’s particular use constituting a place of public accommodation, or Tenant’s proposed occupancy of the Expansion Space at a density level which is greater than that for which it is designed) in effect and as interpreted as of the Fourth Amendment Effective Date (as opposed to any differing Laws or differing interpretations of Laws in effect as of the date of Tenant’s performance of the Tenant Improvement Project (defined in Section 1.1.3 below) (the “ Landlord Work ”). Tenant shall be responsible for any alterations, additions or improvements required by Law to be made to or in the Expansion Space as a result of Tenant’s proposed Tenant Improvements, but will not be responsible for such work with respect to the remainder of Nine Maritime (except with respect to any compliance upgrades required that result from additional accessibility requirements, if any, arising from Tenant’s particular employees or Tenant’s particular use constituting a place of public accommodation, or from Tenant’s proposed occupancy of the Expansion Space at a density level which is greater than that for which it is designed), unless, with respect to the Tenant Improvement Project, such work is required by any Law (x) which was not in effect as of the Fourth Amendment Effective Date or (y) to the extent the same has been amended or whose interpretation by applicable authorities has been modified since the Fourth Amendment Effective Date. Tenant’s obligation to comply with Laws as a consequence of the performance of subsequent Alterations will be governed by the Lease.

1.1.2 Notwithstanding the provisions of Section 1.1.1 above, if, in the course of constructing the Tenant Improvements, Tenant discovers asbestos-containing sprayed on fireproofing material in the Expansion Space, Landlord shall perform the necessary removal or remedial action with respect to such asbestos-containing material. Tenant will be responsible for the removal of any other asbestos-containing materials which may be located in the Expansion Space (such as floor mastic or VAT). Tenant acknowledges that no penetration of the roof membrane of Nine Maritime (which is a transite paneling system) is permitted.


1.1.3 The parties acknowledge that Tenant initially intends to perform interior painting, carpet installation and the installation of telecommunication and data cabling in the Expansion Space prior to Tenant’s initial occupancy of the Expansion Space (the “ Preliminary Work ”), and, at some point thereafter, to potentially carry out a more extensive Tenant Improvement project in the Expansion Space as a separate project (the “ Tenant Improvement Project ”). For avoidance of doubt, both the Preliminary Work and the Tenant Improvement Project will constitute Tenant Improvements for the purposes of this Work Agreement. In connection therewith:

1.1.3.1 Tenant may apply the Allowance (defined below) towards the cost of the Preliminary Work and/or the Tenant Improvement Project;

1.1.3.2 Tenant expressly acknowledges that the work described in the final sentence of Section 4(a) of the Fourth Amendment (“ Landlord’s HVAC Upgrade ”) will not be completed by Landlord prior to the completion of the Preliminary Work. As an alternative, the parties have agreed that Landlord will perform Landlord’s HVAC Upgrade following Tenant’s initial occupancy of the Expansion Space at a time mutually agreed upon between Landlord and Tenant and concurrently with Tenant’s performance of the Tenant Improvement Project, provided that (a) Tenant must provide Landlord with notice of the date that Tenant desires to commence the Tenant Improvement Project at least one hundred twenty (120) days prior to the proposed date of commencement of the Tenant Improvement Project and (b) Tenant must vacate its employees from the Expansion Space for a period of approximately ninety (90) days, commencing as of the date immediately preceding the date of commencement of the Tenant Improvement Project (as amended by the Fourth Amendment), in order to allow Landlord to have access to the Expansion Space for the purpose of performing Landlord’s HVAC Upgrade (during such period, Tenant will have access to the Premises to carry out the Tenant Improvement Project so long as such work does not interfere with Landlord’s ability to carry out the HVAC Upgrade).

1.1.3.3 Tenant shall not be entitled to any abatement of Rent payable for the Expansion Space as a result of Tenant’s vacation of the Expansion Space for the purposes of allowing Landlord to perform Landlord’s HVAC Upgrade or construction of the Tenant Improvement Project, and waives any claims against Landlord arising out of Landlord’s performance of such work; and

1.1.3.4 Landlord has agreed to delay the performance of Landlord’s HVAC Upgrade at Tenant’s request. Tenant expressly acknowledges that if any component of the HVAC system serving 9 Maritime and/or the Expansion Space fails prior to the date upon which Landlord is able to complete Landlord’s HVAC Upgrade, Landlord shall have no liability under the Lease (as amended by the Fourth Amendment) or otherwise, as a result of such failure, and such failure shall not trigger any right to an abatement of Rent payable under the Lease (as amended by the Fourth Amendment), notwithstanding any provisions of the Lease to the contrary; Landlord agrees, however, to use reasonable efforts to perform such repairs as may be necessary to any such component as soon as reasonably possible in an effort to bring any such HVAC services back on line.

 

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1.1.3.5 Notwithstanding the foregoing provisions of this Section 1.1.3, if, as of July 31, 2015, Tenant has not notified Landlord of Tenant’s intent to commence the Tenant Improvement Project, Landlord shall have the right, upon one hundred twenty (120) days’ prior written notice to Tenant, to commence Landlord’s HVAC Upgrade. In such event, Tenant shall cause its employees to vacate the Expansion Space as of the date set forth in Landlord’s notice of the date which immediately precedes the date of commencement of Landlord’s HVAC Upgrade and may reoccupy the Expansion Space following completion of Landlord’s HVAC Upgrade. Section 1.1.3.3 above will apply to Landlord’s performance Upgrade pursuant to this Section 1.1.3.5.

1.1.3.6 Notwithstanding the provisions of Section 2 of the Fourth Amendment, the Expansion Abatement Period shall be deemed to be the period commencing as of the Expansion Date (as determined pursuant to the provisions of Section 1 of the Fourth Amendment) and expiring as of March 31, 2014.

SECTION 2

TENANT IMPROVEMENTS

2.1 Construction of Tenant Improvements . The “ Tenant Improvements ” shall consist of any and all improvements and work to improve, alter and complete the Expansion Space for Tenant’s occupancy. Landlord acknowledges that Tenant desires to perform the Preliminary Work promptly following the Fourth Amendment Effective Date, and agrees that the Expansion Space shall be available for Tenant’s performance of the Preliminary Work promptly following the Fourth Amendment Effective Date. The Tenant Improvements shall be undertaken and prosecuted in accordance with the following requirements:

2.1.1 The Tenant Improvements shall be designed and constructed by Tenant in accordance with the Approved Working Drawings (defined below) and the terms of this Work Agreement. Tenant shall abide by the reasonable written rules established by Landlord or Landlord’s property manager with respect to the construction of the Tenant Improvements, the use of freight, loading dock and service areas, storage of materials, coordination of work with the contractors of other tenants. All construction drawings (defined below) prepared by the Architect (defined below) shall follow Landlord’s commercially reasonable CAD standards and requirements, which standards and requirements shall be provided to Tenant or the Architect upon request.

2.1.2 The Tenant Improvements shall be undertaken and performed at all times in accordance with all state, federal and local laws, regulations and ordinances, including without limitation all OSHA and other safety laws and with all applicable rules, orders, regulations and requirements of the California Board of Fire Underwriters and the California Fire Insurance Rating Organization or any similar body.

 

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2.1.3 Landlord shall, within ten (10) business days after request by Tenant, provide Tenant with appropriate “path of travel plans” showing areas outside the Expansion Space, as required under applicable laws and codes. Tenant shall deliver to Landlord a copy of the final application for permit and issued permit for the construction of the Tenant Improvements prior to commencement of construction. Prior to the commencement of construction of any portion of the Tenant Improvements, Tenant shall have procured and paid for and exhibited to Landlord all permits, approvals and authorizations of all applicable governmental authorities. Landlord will use reasonable efforts to cooperate with Tenant in Tenant’s efforts to procure applicable construction permits.

2.1.4 Contractor (defined below) as well as all subcontractors, laborers, materialmen, and suppliers used by Tenant for the Tenant Improvements (such subcontractors, laborers, materialmen, and suppliers, and Contractor, referred to herein collectively as “ Tenant’s Agents ”) shall comply with Landlord’s written guidelines generally imposed on third party contractors including without limitation all insurance coverage requirements and the obligation to furnish appropriate certificates of insurance to Landlord prior to commencement of construction. Contractor and each of its subcontractors shall guarantee to Tenant and for the benefit of Landlord that the portion of the Tenant Improvements for which it is responsible shall be free from any defects in workmanship and materials for a period of not less than one (1) year from the date of completion thereof. Each of Tenant’s Agents shall be responsible for the replacement or repair, without additional charge, of all work done or furnished in accordance with its contract that shall become defective within one (1) year after the completion of the work performed by such contractor or subcontractors. The correction of such work shall include, without additional charge, all additional expenses and damages incurred in connection with such removal or replacement of all or any part of the Tenant Improvements, and/or Nine Maritime and/or common areas that may be damaged or disturbed thereby. All such warranties or guarantees as to materials or workmanship of or with respect to the Tenant Improvements shall be contained in the applicable contract or subcontract and shall be written such that such guarantees or warranties shall inure to the benefit of both Landlord and Tenant, as their respective interests may appear, and can be directly enforced by either. Tenant shall give to Landlord any assignment or other assurances that may be necessary to effect such right of direct enforcement.

2.1.5 Tenant and Contractor shall use commercially reasonable efforts to hold weekly job meetings and shall provide Landlord with reasonable advance notice of such meetings and permit Landlord’s construction manager, at its election, to attend; said meetings may be attended by parties telephonically.

2.1.6 All of the relevant provisions of the Lease shall apply to any activity of Tenant, its agents and contractors, in the Expansion Space during the construction of the Tenant Improvements.

2.1.7 It shall be the responsibility of Tenant and Tenant’s contractors to remove all trash and debris from the Expansion Space on a regular basis and to break down all boxes and place all such trash and debris in the containers supplied for that purpose. If trash and debris are not removed on a regular basis by Tenant or Tenant’s contractors, then Landlord shall have the right to remove such trash and debris or have such trash and debris removed at the sole cost and expense of Tenant by deduction from the Allowance.

 

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2.1.8 Following completion of the Tenant Improvements, Tenant shall cause any necessary Notice of Completion to be recorded in the office of the Recorder of San Francisco County in accordance with Section 3093 of the California Civil code or any successor statute, shall furnish a copy thereof to Landlord upon such recordation, and shall timely give all notices required pursuant to Section 3259.5 of the California Civil Code or any successor statute and will provide to Landlord:

(a) as-built drawings of the Expansion Space signed by Architect; Tenant shall cause the Architect and Contractor to update the Approved Working Drawings as necessary to reflect all changes made to the Approved Working Drawings during the course of construction and a certificate, in a form reasonably acceptable to Landlord, from Architect certifying that the construction of the Tenant Improvements have been substantially completed;

(b) CAD files of the improved space compatible with Landlord’s CAD standards;

(c) a final punchlist signed by Tenant;

(d) final and unconditional lien waivers from all contractors and subcontractors;

(e) signed copies of the permit or job card indicating passing of the final inspection; and

(f) a copy of all warranties, guaranties, and operating manuals and information relating to the Tenant Improvements.

The foregoing materials are referred to herein collectively as the “ Close-out Package ”. Should Tenant fail to provide complete CAD files compatible with Landlord’s standards as required herein, Landlord may cause its architect to prepare same and the cost thereof shall be reimbursed to Landlord by Tenant as additional Rent under the Lease within thirty (30) days of invoice therefor.

2.2 Preparation and Approval of Construction Drawings .

2.2.1 Selection of Architect/Construction Drawings . Tenant shall retain an architect approved in writing by Landlord (such approval not to be unreasonably withheld, conditioned or delayed) to prepare the Construction Drawings (the “ Architect ”). Landlord hereby approves STUDIOS Architecture as the Architect. Tenant shall, at its option, retain either engineering consultants designated by Landlord listed below or engineering consultants designated by Tenant and reasonably approved by Landlord (the “ Building Consultants ”) to prepare all plans and engineering working drawings relating to the structural, mechanical, electrical, plumbing, HVAC, life-safety, sprinkler and riser work. The following are the engineering consultants designated by Landlord:

 

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Structural:    Rivera Consulting Group, Inc.
MEP:    Glumac, Inc.
Life Safety:   

Pacific Auxiliary Fire Alarm (design and supply devices),

Paganini Electric (installation)

Sprinkler:    RLH, Pribuss or Ayoob & Perry
Air Balancing:    RS Analysis Inc., Circo Systems Balancing Inc.
Riser Management:    Montgomery Technologies

If Tenant wishes to engage Building Consultants other than those designated by Landlord, Tenant may do so subject to Landlord’s approval, which shall not be unreasonably withheld, or delayed (it being acknowledged that Landlord’s approval will not be deemed unreasonably withheld if Landlord, reasonably and in good faith, determines that any such proposed Building Consultant does not have sufficient skill, expertise or experience in performing similar work in similar first class buildings, does not have sufficient insurance coverage or if Landlord has previously experienced difficulties or disputes with the suggested Building Consultant).

The plans and drawings to be prepared by Architect and the Engineers hereunder shall be referred to collectively as the “Construction Drawings” . Tenant and Architect shall verify, in the field, the dimensions and conditions of the Premises, and Tenant and Architect shall be solely responsible for the same, and Landlord shall have no responsibility in connection therewith, other than Landlord’s obligation to complete the Landlord Work. Landlord’s review of the Construction Drawings as set forth herein shall not imply Landlord’s review of the same for quality, design, Code compliance or other like matters. Accordingly, notwithstanding that any Construction Drawings are reviewed by Landlord or its space planner, architect, engineers and consultants, and notwithstanding any advice or assistance which may be rendered to Tenant by Landlord or Landlord’s space planner, architect, engineers, and consultants, Landlord shall have no liability whatsoever in connection therewith and shall not be responsible for any omissions or errors contained in the Construction Drawings.

2.2.2 Space Plan . Tenant shall supply Landlord with four (4) copies of its final space plan for the Expansion Space, each signed by Architect and approved by Tenant. The final space plans (collectively, the “ Space Plan ”) shall include a layout and designation of all offices, rooms and other partitioning, their intended use, and equipment to be contained therein. Landlord may request clarification or more specific drawings for special use items not included in the Final Space Plan. Landlord’s approval of Tenant’s draft Space Plan shall not be unreasonably withheld, conditioned or delayed. Landlord shall respond to Tenant’s submission of the draft Space Plan within five (5) business days following Tenant’s submission. If Landlord disapproves Tenant’s Space Plan, Landlord shall specify in reasonable detail, within such five (5) business day period, the basis of such disapproval and the changes necessary to obtain Landlord’s approval of the Space Plan. Thereafter, Tenant may revise and re-submit its draft Space Plan to Landlord, which Landlord will review and respond to within five (5) business days. This process shall continue until the Space Plan has been approved in writing by Landlord.

 

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2.2.3 Final Working Drawings . After the Space Plan has been approved by Landlord, Tenant shall supply the Building Consultants with a complete listing of standard and non-standard equipment and specifications, including, without limitation, B.T.U. calculations, electrical requirements and special electrical receptacle requirements for the Expansion Space, to enable the Building Consultants and the Architect to complete the Final Working Drawings (defined below) in the manner as set forth below. Tenant shall cause Architect to compile a fully coordinated set of architectural, structural, mechanical, electrical and plumbing working drawings in a form which is complete to allow subcontractors to bid on the work and to obtain all applicable permits (collectively, the “ Final Working Drawings ”) and shall submit the same to Landlord for Landlord’s approval, not to be unreasonably withheld, conditioned or delayed. Tenant shall supply Landlord with four (4) copies of such Final Working Drawings, each signed by Architect and approved by Tenant. Landlord’s approval of Tenant’s Final Working Drawings shall not be unreasonably withheld, conditioned or delayed. Landlord shall respond to Tenant’s submission of the Final Working Drawings within ten (10) business days following Tenant’s submission. If Landlord disapproves Tenant’s Final Working Drawings, Landlord shall specify in reasonable detail, within such ten (10) business day period, the basis of such disapproval and the changes necessary to obtain Landlord’s approval of the Final Working Drawings. Thereafter, Tenant may revise and re-submit its draft Final Working Drawings to Landlord, which Landlord will review and respond to within ten (10) business days. This process shall continue until the Final Working Drawings have been approved in writing by Landlord.

2.2.4 Permits . The Final Working Drawings as approved by Landlord, including any changes thereto approved by Landlord (to the extent Landlord’s approval is required hereunder), are referred to herein as the “ Approved Working Drawings ”. After approval of the Approved Working Drawings, Tenant may submit the same to the appropriate municipal authorities for all applicable building permits. Neither Landlord nor Landlord’s consultants shall be responsible for obtaining any building permit or certificate of occupancy for the Tenant Improvements; obtaining the same shall be Tenant’s responsibility. However, Landlord will promptly cooperate with Tenant in executing permit applications and performing other ministerial acts reasonably necessary to enable Tenant to obtain any such permit or certificate of occupancy. No material changes, modifications or alterations to the Approved Working Drawings may be made without the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed; in the event that Tenant so requests any changes, modifications or alterations to the Approved Working Drawings, Landlord will review and respond to any suggested changes as promptly as practicable, but in any event within the time period described in Section 2.2.3 above.

2.3 Contractor . Tenant may competitively bid the Tenant Improvements to several mutually acceptable and qualified union labor contractors to act as the General Contractor to perform the Tenant Improvements (“ Contractor ”). BCCI, Hathaway Dinwiddie, Turner, GCI and DPR are approved by Landlord as qualified entities to serve as Contractor; the foregoing list is not an exclusive list of potentially acceptable Contractors and Tenant may suggest additional proposed Contractors to Landlord for Landlord’s approval. Landlord’s approval of such entities shall not be unreasonably withheld, conditioned or delayed, provided that Landlord may withhold its consent to any general contractor who is not union-affiliated. All of Tenant’s Agents shall be licensed in the State of California, capable of being bonded and union-affiliated in compliance with all then existing master labor agreements.

 

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2.4 Construction Contract; Excess Costs . Tenant shall execute a construction contract and general conditions with Contractor, substantially in the form of an industry standard AIA form contract or another standard construction contract form typically used by Tenant (the “ Contract ”). Prior to the commencement of the construction of the Tenant Improvements, Tenant shall provide Landlord with a detailed breakdown, by trade, of the final costs anticipated to be incurred or which have been incurred, in connection with the design and construction of the Tenant Improvements to be performed by or at the direction of Tenant or Contractor, which costs form a basis for the amount of the Contract. In the event that the costs relating to the design and construction of the Tenant Improvements shall be in excess of the Allowance (defined below), any such additional costs (except to the extent resulting from Landlord Delays, as defined below) shall be paid by Tenant out of its own funds on a pro rata basis (i.e., a proportional amount of each payment to the Contractor shall be made by Tenant), but Tenant shall continue to provide Landlord with the documents described in this Work Agreement, above, for Landlord’s approval.

2.5 Inspection by Landlord . Landlord shall have the right to inspect the Tenant Improvements at all times, provided however, that Landlord’s failure to inspect the Tenant Improvements shall in no event constitute a waiver of any of Landlord’s rights hereunder nor shall Landlord’s inspection of the Tenant Improvements constitute Landlord’s approval of the same, and, provided further that such inspection is solely for the purpose of determining whether or not the Tenant Improvements are being constructed in strict accordance with the Approved Working Drawings. Should Landlord disapprove any portion of the Tenant Improvements, Landlord shall promptly notify Tenant in writing of such disapproval and shall specify the items disapproved and the basis for such disapproval, provided that Landlord shall only disapprove any portion of the Tenant Improvements to the extent that same materially deviate from the Approved Working Drawings. Any material defects or material deviations in, and/or disapproval by Landlord of, the Tenant Improvements shall be rectified by Tenant at no expense to Landlord, provided however, that in the event Landlord determines that a defect or deviation exists or disapproves of any matter in connection with any portion of the Tenant Improvements and such defect, deviation or matter might immediately or materially adversely affect the mechanical, electrical, plumbing, heating, ventilating and air conditioning or life-safety systems of Nine Maritime, the structure or exterior appearance of Nine Maritime, and if Tenant fails to correct such matter within five (5) business days following written notice from Landlord, Landlord may take such action as Landlord reasonably deems necessary, at Tenant’s expense and without incurring any liability on Landlord’s part, to correct any such defect, deviation and/or matter.

2.6 Allowances; Credits; Disbursement . Tenant shall be entitled to a tenant improvement allowance (the “ Allowance ”) in the amount of $ [***] * (i.e., $[ *** ] * per rentable square foot of the Expansion Space). Except with respect to Landlord’s obligation to complete the Landlord Work, in no event will Landlord be obligated to make disbursements pursuant to this Work Agreement in a total amount that exceeds the Allowance. In addition to the Allowance, Landlord will provide a separate allowance to Tenant to be applied towards the cost of painting, patching and/or replacing ceiling tiles in the Expansion Space, up to a maximum of [***] * ($[***] * ). Any portion of the Allowance which has not been the subject of a disbursement request by Tenant in accordance with the provisions of Section 2.6.2 below as of December 31, 2015, shall irrevocably be deemed to be waived by Tenant.

 

*   CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION

 

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2.6.1 Allowance Items . Except as otherwise set forth in this Work Agreement, the Allowance shall be disbursed by Landlord in accordance with the terms of this Work Agreement for the following items and costs (collectively, the “ Allowance Items ”): (i) the cost of all materials and labor to complete the Tenant Improvements, (ii) payment of the fees and charges of the Architect and the Engineers, (iii) payment for the preparation of the Final Space Plan and Approved Working Drawings, (iv) the cost of obtaining any and all permits for the construction of the Tenant Improvements; (v) the cost of any changes to the Approved Working Drawings or Tenant Improvements required by applicable building codes (collectively, the “ Code ”), (vi) the fees of Tenant’s project manager, (vii) the cost of signage, (viii) costs of telecommunications and data cabling and security systems, (ix) Landlord’s construction supervision fee described in Section 2.7.1 below and other costs and expenses payable to Landlord as set forth in this Work Agreement, including Section 2.7 below, (x) any other costs associated with the design and construction of improvements to the Expansion Space and (xi) Base Rent payable for the Expansion Space immediately following the Expansion Abatement Period (provided, however, that Tenant shall not be entitled to apply in excess of $[***] * per rentable square foot of the Expansion Space (i.e., $[***] * toward Base Rent payable for the Expansion Space).

2.6.2 Disbursement of Allowance . Landlord shall make monthly disbursements of the Allowance and shall authorize the release of monies as follows:

(a) Each calendar month Tenant may deliver to Landlord: (i) a request for payment from Contractor, approved by Tenant, in a customary form to be provided or approved by Landlord, showing the schedule, by trade, of percentage of completion of the Tenant Improvements detailing the portion of the work completed and the portion not completed, and/or one or more invoices, approved by Tenant, for Allowance Items other than costs of the Tenant Improvements; (ii) invoices from all of Tenant’s Agents for labor rendered and materials delivered to the Expansion Space; (iii) executed unconditional mechanic’s lien releases from all of Tenant’s Agents which shall substantially comply with the appropriate provisions, as reasonably determined by Landlord, of California Civil Code Section 3262(d), or conditional releases if appropriate; and (iv) all other information reasonably requested in good faith by Landlord. Within thirty (30) days thereafter, Landlord shall deliver a check made payable to Tenant, or a check or checks made payable to another party or parties as requested by Tenant, in payment of the lesser of: (A) the amounts so requested by Tenant, less a ten percent (10%) retention as to payments to Contractor (the aggregate amount of such retentions to be known as the “Final Retention” ), and (B) the balance of any remaining available portion of the Allowance (not including the Final Retention), provided that, if Landlord, in good faith, disputes any item in a request for payment based on non-compliance of any work with the Approved Working Drawings or due to any substandard work and delivers a written objection to such item setting forth with reasonable particularity Landlord’s reasons for its dispute (a “Draw Dispute Notice” ) within five (5) business days following Tenant’s submission of such draw request, Landlord may

 

*   CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION

 

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deduct the amount of such disputed item from the payment. Landlord and Tenant shall, in good faith, endeavor to resolve any such dispute with diligence and dispatch. Landlord’s payment of such amounts shall not be deemed Landlord’s approval or acceptance of the work furnished or materials supplied as set forth in Tenant’s payment request.

(b) If and to the extent that Landlord fails to fund any monthly disbursement of the Allowance within thirty (30) days following Tenant’s submission to Landlord of a draw request containing all of the materials and information require pursuant to Section 2.6.2 (subject to Landlord’s right to deduct amounts specified in a timely Draw Dispute Notice), Tenant shall be entitled to fund the amount set forth in Tenant’s draw request and deduct the same, together with interest at the Interest Rate, from Rent next due and payable by Tenant under the Lease, provided that Tenant will concurrently deliver notice to Landlord of the amount so funded by Tenant. Additionally, if and to the extent that Landlord’s failure to timely fund a monthly disbursement of the Allowance causes Tenant to incur any additional penalty or fee payable to Contractor, Landlord will be responsible for such penalty or fee (and Tenant will similarly have the right to offset such penalty or fee, together with interest at the Interest Rate, against Rent payable under the Lease). If and to the extent that Landlord timely delivers any Draw Dispute Notice, Landlord shall nevertheless be obligated to fund the portion of such draw request, if any, which Landlord has not duly disputed, and Tenant shall only be entitled to fund the undisputed amount of such draw request to the extent Landlord fails to so fund such amount. If Tenant commences to offset unfunded draw amounts (or any penalty or fee payable to Contractor as described above) pursuant to the provisions of this Section 2.6.2(b), Landlord shall have the right, at any time, to pay to Tenant all or any portion of the then-unfunded amount and accrued interest, in which event Tenant shall have no further right to continue such offset with respect to the amount so paid.

(c) Upon Substantial Completion of the Tenant Improvements, Landlord shall deliver to Tenant a check to Tenant made payable to Tenant, or a check or checks made payable to another party or parties as requested by Tenant, in the amount of the Final Retention, less an amount equal to one hundred fifty percent (150%) of the estimated cost of the punch list items remaining to be completed as determined by Landlord and Tenant (the “ Punch List Retention ”). The Punch List Retention shall be paid by Landlord to Tenant promptly following the completion of construction of the Tenant Improvements and Landlord’s receipt of the Close-Out Package.

2.7 Construction Management Fee; Other Expense paid to Landlord .

2.7.1 Supervisory Fees . To insure the quality and integrity of the construction process, Landlord shall have the right to deduct from the Allowance the amount set forth in Section 18(a) of the Original Lease (the “ Supervisory Fee ”) in connection with the oversight and coordination of the Tenant Improvements (which for purposes of determining any fee based on a percentage of the cost of work only, shall be deemed “Alterations”), which will be deducted from the Allowance in monthly installments; provided in no event will the Supervisory Fee (exclusive of any review costs under Section 2.7.2 below) exceed [***] * percent ([***] * %) of the cost of the design, permitting and construction of the Tenant Improvements.

 

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2.7.2 Other Expenses . If Tenant selects a substitute professional other than those specified in Section 2.2.1 above, in addition to the Supervisory Fee, Tenant shall pay the actual third party consultant fees incurred by Landlord to review any plans and specifications or work performed by any professional other than the Building Consultants listed in Section 2.2.1.

2.8 Miscellaneous .

2.8.1 Indemnity . Tenant’s shall indemnify, defend and hold Landlord harmless from and with respect to any and all costs, losses, damages, injuries and liabilities related in any way to any act or omission of Tenant or Tenant’s Agents, or anyone directly or indirectly employed by any of them, or in connection with Tenant’s non-payment of any amount arising out of the Tenant Improvements and/or Tenant’s disapproval of all or any portion of any request for payment. Such indemnity by Tenant shall also apply with respect to any and all costs, losses, damages, injuries and liabilities related in any way to Landlord’s performance of any ministerial acts reasonably necessary (i) to permit Tenant to complete the Tenant Improvements, and (ii) to enable Tenant to obtain any building permit or certificate of occupancy for the Expansion Space, except to the extent attributable to the negligence or willful misconduct of Landlord or Landlord’s employees, agents or contractors.

2.8.2 Tenant’s Lease Default . Notwithstanding any provision to the contrary contained in the Lease, if a Default has occurred at any time on or before the Substantial Completion of the Tenant Improvements, then (i) in addition to all other rights and remedies granted to Landlord pursuant to the Lease, Landlord shall have the right to withhold payment of all or any portion of the Allowance to the extent of damages suffered by Landlord resulting from such Default, and (ii) all other obligations of Landlord under the terms of this Work Agreement shall be forgiven until such time as such Default is cured pursuant to the terms of the Lease (in which case, Tenant shall be responsible for any delay in the substantial completion of the Tenant Improvements caused by such inaction by Landlord).

2.8.3 Tenant’s Representative . Tenant has designated John Stier, as its sole representative with respect to the matters set forth in this Work Agreement, who shall have full authority and responsibility to act on behalf of the Tenant as required in this Work Agreement, unless Tenant provides Landlord with written notice to the contrary.

2.8.4 Landlord’s Representative . Landlord has designated Stacia Keisner, General Manager, CB Richard Ellis, Inc., as its sole representative with respect to the matters set forth in this Work Agreement, who, until further notice to Tenant, shall have full authority and responsibility to act on behalf of the Landlord as required in this Work Agreement.

2.8.5 Time of the Essence . Time is of the essence in all matters under this Work Agreement in which time is a factor. Unless otherwise indicated, all references herein to a “number of days” shall mean and refer to calendar days.

 

*   CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION

 

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2.8.6 Freight Elevators and Utilities . Landlord shall, consistent with its obligations to other tenants of Nine Maritime, make the freight elevator, loading docks (for loading and unloading only, no parking of vehicles) and bathrooms (in the basement level) in Nine Maritime reasonably available to Tenant in connection with initial decorating, furnishing and moving into the Premises at no additional charge to Tenant. Landlord shall provide , access to Tenant for water, electricity, HVAC and other utilities reasonably required in connection with constructing, decorating, furnishing and moving into the Premises at no additional charge to Tenant and Tenant’s consumption of such utilities during the construction of the Tenant Improvements will be at no charge to Tenant.

 

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EXHIBIT C

DISABILITY ACCESS OBLIGATIONS UNDER

SAN FRANCISCO ADMINISTRATIVE CODE CHAPTER 38

Before you, as the Tenant, enter into the lease document to which this Exhibit is attached (whether a new lease or an amendment to an existing lease) with us, the Landlord, for premises in the building located in San Francisco, CA and more particularly described in the Fourth Amendment to Lease (the “ Property ”), please be aware of the following important information about the Lease:

You May Be Held Liable for Disability Access Violations on the Property . Even though you are not the owner of the Property, you, as the Tenant, as well as the Property owner, may still be subject to legal and financial liabilities if the leased Property does not comply with applicable Federal and State disability access laws. You may wish to consult with an attorney prior to entering into the lease document to make sure that you understand your obligations under Federal and State disability access laws. The Landlord must provide you with a copy of the Small Business Commission Access Information Notice under Section 38.6 of the Administrative Code in your requested language; a copy of such Notice is attached hereto in satisfaction of such obligation. For more information about disability access laws applicable to small businesses, you may wish to visit the website of the San Francisco Office of Small Business or call 415-554-6134.

The Lease Must Specify Who Is Responsible for Making Any Required Disability Access Improvements to the Property . Under the laws of the City of San Francisco, the lease must include a provision in which you, the Tenant, and the Landlord agree upon your respective obligations and liabilities for making and paying for required disability access improvements on the leased Property. The Lease must also require you and the Landlord to use reasonable efforts to notify each other if they make alterations to the leased Property that might impact accessibility under Federal and State disability access laws. You may wish to review those provisions with your attorney prior to entering the lease to make sure that you understand your obligations under the Lease.

PLEASE NOTE: The Property may not currently meet all applicable construction-related accessibility standards, including standards for public restrooms and ground floor entrances and exits.

By signing below, each party confirms that it has read and understood this Notice.

 

LANDLORD:     TENANT:
By:  

/s/ Keith Fink

    By:  

/s/ John Stier

Name:   Keith Fink     Name:   John Stier
Title:   Executive Director     Title:   Director


 

LOGO


 

LOGO

Exhibit 10.3

EXECUTION COPY

 

 

 

PURCHASE AGREEMENT

among

DEL MONTE CORPORATION,

DEL MONTE FOODS CONSUMER PRODUCTS, INC.

and, solely for the purposes of Section 11.20 herein,

DEL MONTE PACIFIC LIMITED

Dated as of October 9, 2013

 

 

 


TABLE OF CONTENTS

 

         Page  

ARTICLE I DEFINITIONS

     1  

SECTION 1.1

 

Certain Defined Terms

     1  

ARTICLE II PURCHASE AND SALE

     11  

SECTION 2.1

 

Purchase and Sale of Shares

     11  

SECTION 2.2

 

Purchase and Sale of Assets

     12  

SECTION 2.3

 

Assignment of Certain Transferred Assets

     20  

SECTION 2.4

 

Dividable Contracts

     21  

SECTION 2.5

 

Closing

     22  

SECTION 2.6

 

Purchase Price; Deposit

     23  

SECTION 2.7

 

Closing Deliveries by the Company

     24  

SECTION 2.8

 

Closing Deliveries by the Acquiror

     25  

SECTION 2.9

 

Adjustment to Purchase Price

     26  

SECTION 2.10

 

Reconciliation of Post-Closing Statements

     27  

SECTION 2.11

 

Tax Withholding

     28  

SECTION 2.12

 

Post-Closing Adjustment

     29  

ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY

     29  

SECTION 3.1

 

Organization and Qualification

     29  

SECTION 3.2

 

Authority of the Company

     29  

SECTION 3.3

 

No Conflict; Required Filings and Consents

     30  

SECTION 3.4

 

Shares

     30  

SECTION 3.5

 

Financial Information; Absence of Undisclosed Liabilities

     31  

SECTION 3.6

 

Absence of Certain Changes or Events

     31  

SECTION 3.7

 

Absence of Litigation

     32  

SECTION 3.8

 

Compliance with Laws

     32  

SECTION 3.9

 

Sufficiency of the Transferred Assets; Liens

     32  

SECTION 3.10

 

Intellectual Property

     33  

SECTION 3.11

 

Environmental Matters

     33  

SECTION 3.12

 

Contracts

     34  

SECTION 3.13

 

Company Plans

     35  

SECTION 3.14

 

Real Property

     37  

SECTION 3.15

 

Personal Property

     38  

SECTION 3.16

 

Brokers

     38  

SECTION 3.17

 

Taxes

     38  

SECTION 3.18

 

FCPA and Certain Other Regulatory Compliance

     39  

SECTION 3.19

 

Venezuelan Operations

     40  

SECTION 3.20

 

Insurance

     40  

SECTION 3.21

 

No Other Representations or Warranties

     41  

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE ACQUIROR

     41  

SECTION 4.1

 

Organization and Qualification of the Acquiror

     41  

SECTION 4.2

 

Authority of the Acquiror

     41  

 

i


SECTION 4.3

 

No Conflict; Required Filings and Consents

     42  

SECTION 4.4

 

Absence of Restraints; Compliance with Laws

     43  

SECTION 4.5

 

Financial Ability

     43  

SECTION 4.6

 

Brokers

     43  

SECTION 4.7

 

Purchase for Investment

     43  

SECTION 4.8

 

Investigation

     43  

ARTICLE V ADDITIONAL AGREEMENTS

     44  

SECTION 5.1

 

Conduct of Business Prior to the Closing

     44  

SECTION 5.2

 

Forbearances of the Acquiror

     46  

SECTION 5.3

 

Access to Books and Records; Confidentiality

     47  

SECTION 5.4

 

Further Action; Efforts

     47  

SECTION 5.5

 

Third Party Consents

     49  

SECTION 5.6

 

Contact with Customers and Suppliers

     50  

SECTION 5.7

 

Non-Competition; Non-Hire

     50  

SECTION 5.8

 

Credit and Performance Support Obligations

     51  

SECTION 5.9

 

Transfer Taxes

     52  

SECTION 5.10

 

Assumption of Litigation

     52  

SECTION 5.11

 

Ancillary Agreements

     52  

SECTION 5.12

 

Intellectual Property Licenses

     53  

SECTION 5.13

 

Rebates under Supply Agreement

     54  

SECTION 5.14

 

Direct Trade Promotions

     54  

SECTION 5.15

 

Forwarding of Collected Payments; Customer Deductions

     54  

SECTION 5.16

 

Pre-Closing Cooperation

     54  

SECTION 5.17

 

Post-Closing Cooperation

     55  

SECTION 5.18

 

Confidentiality Agreements

     56  

SECTION 5.19

 

Exclusivity

     56  

SECTION 5.20

 

Financing

     56  

SECTION 5.21

 

Other Certain Shared Assets

     57  

SECTION 5.22

 

Insurance

     57  

ARTICLE VI EMPLOYEE MATTERS

     59  

SECTION 6.1

 

Transferred Employees

     59  

SECTION 6.2

 

Employee-Related Liabilities

     60  

SECTION 6.3

 

Participation in Company Plans

     61  

SECTION 6.4

 

Service Recognition

     61  

SECTION 6.5

 

Company Pension Plan

     62  

SECTION 6.6

 

401(k) Plan

     65  

SECTION 6.7

 

Post-Retirement Health and Welfare Benefits; COBRA Coverage

     65  

SECTION 6.8

 

Multiemployer Plans

     66  

SECTION 6.9

 

Workers’ Compensation Liabilities

     67  

SECTION 6.10

 

Payroll and Related Taxes

     67  

SECTION 6.11

 

No Third Party Beneficiaries

     67  

 

ii


ARTICLE VII TAX MATTERS

     68  

SECTION 7.1

 

Tax Matters

     68  

ARTICLE VIII CONDITIONS TO CLOSING

     71  

SECTION 8.1

 

Conditions to Obligations of Each Party to Effect the Transactions

     71  

SECTION 8.2

 

Conditions to Obligations of the Acquiror to Effect the Transactions

     71  

SECTION 8.3

 

Conditions to Obligations of the Company to Effect the Transactions

     72  

ARTICLE IX TERMINATION, AMENDMENT AND WAIVER

     72  

SECTION 9.1

 

Termination

     72  

SECTION 9.2

 

Notice of Termination

     73  

SECTION 9.3

 

Effect of Termination

     73  

SECTION 9.4

 

Extension; Waiver

     73  

ARTICLE X INDEMNIFICATION

     74  

SECTION 10.1

 

Indemnification by the Company

     74  

SECTION 10.2

 

Indemnification by the Acquiror

     74  

SECTION 10.3

 

Notification of Claims

     74  

SECTION 10.4

 

Additional Indemnification Provisions

     75  

SECTION 10.5

 

Mitigation

     76  

SECTION 10.6

 

Limitation on Liability

     76  

ARTICLE XI GENERAL PROVISIONS

     76  

SECTION 11.1

 

Survival

     76  

SECTION 11.2

 

Expenses

     76  

SECTION 11.3

 

Notices

     76  

SECTION 11.4

 

Public Announcements

     77  

SECTION 11.5

 

Severability

     78  

SECTION 11.6

 

Entire Agreement

     78  

SECTION 11.7

 

Assignment

     78  

SECTION 11.8

 

No Third-Party Beneficiaries

     78  

SECTION 11.9

 

Amendment

     79  

SECTION 11.10

 

Disclosure Schedule

     79  

SECTION 11.11

 

Specific Performance; Jurisdiction

     79  

SECTION 11.12

 

Governing Law

     80  

SECTION 11.13

 

Bulk Sales Laws

     81  

SECTION 11.14

 

Rules of Construction

     81  

SECTION 11.15

 

Counterparts

     81  

SECTION 11.16

 

Waiver of Jury Trial

     82  

SECTION 11.17

 

Asset Transfers

     82  

SECTION 11.18

 

No Recourse

     82  

SECTION 11.19

 

No Recourse Against Financing Sources

     83  

SECTION 11.20

 

Parent Guarantee and Undertaking

     83  

 

iii


E XHIBITS

Exhibit A – Bill of Sale, Assignment and Assumption Agreement

Exhibit B – Form of Working Capital Statement of the Business

Exhibit C – Transition Services Agreement

Exhibit D – Transitional Trademark License

Exhibit E – Escrow Agreement

 

iv


INDEX OF DEFINED TERMS

 

Defined Terms

   Page  

Access Notice

     57   

Acquiror

     1   

Acquiror 401(k) Plan

     65   

Acquiror Benefit Arrangement

     61   

Acquiror Fundamental Representations

     1   

Acquiror Indemnified Parties

     74   

Acquiror Licensed IP

     53   

Acquiror Pension Plan

     62   

Acquiror’s Banker

     43   

Action

     1   

Actuary

     1   

Affiliate

     2   

Agreement

     1   

Ancillary Agreements

     2   

Anti-Boycott Regulations

     39   

Antitrust Laws

     30   

Applicable Food Safety Laws

     40   

Assumed Contracts

     13   

Assumed Liabilities

     17   

Audited Financial Statements

     10   

Bill of Sale, Assignment and Assumption Agreement

     2   

Business

     1   

Business Books and Records

     2   

Business Day

     2   

Business Employee

     2   

Business Financial Statements

     31   

Business IP

     33   

Business Leased Real Property

     5   

Business Owned Real Property

     8   

Business Pension Participants

     2   

Business Territory

     2   

Cash on Hand

     2   

Closing

     23   

Closing Adjustment

     23   

Closing Amount

     23   

Closing Date

     23   

Closing Working Capital

     26   

COBRA

     66   

Code

     2   

Defined Terms

   Page  

Collective Bargaining Agreement

     2   

Commonly Controlled Entity

     36   

Company

     1   

Company 401(k) Plans

     65   

Company Contract

     2   

Company Indemnified Parties

     74   

Company IP Agreements

     35   

Company Pension Plan

     3   

Company Plan

     3   

Company Protected Parties

     83   

Company True-Up Amount

     64   

Competing Activities

     50   

Competing Product

     3   

Confidential Information

     47   

Confidentiality Agreement

     47   

Consultation Period

     27   

Contracts

     13   

Control

     3   

Controlling Party

     75   

Cost Neutral Basis

     21   

Critical Dividable Contracts

     21   

Customs Laws

     40   

Deposit

     23   

Disclosure Schedule

     29   

Dividable Contract

     34   

EAR

     39   

End Date

     73   

Environmental Law

     3   

Environmental Permit

     3   

Equipment

     13   

ERISA

     3   

Escrow Agent

     23   

Escrow Agreement

     23   

Estimated Company Pension Plan Transfer Amount

     63   

Estimated Working Capital

     26   

Excluded Assets

     15   

Excluded Liabilities

     19   

Excluded UPC Codes

     3   

Facilities

     3   

FCPA

     39   
 

 

i


Federal Law of Economic Competition

     3   

Final Company Transfer Date

     64   

Final Working Capital

     28   

Final Working Capital Statement

     28   

Financial Statements

     31   

Financing Commitments

     43   

Financing Sources

     3   

Form of Working Capital Statement of the Business

     11   

Former Business Employee

     4   

Fundamental Representations

     4   

GAAP

     4   

Government Antitrust Entity

     48   

Governmental Entity

     4   

Governmental Order

     4   

HSR Act

     4   

Indebtedness

     4   

Indemnified Party

     75   

Indemnifying Party

     75   

Independent Accounting Firm

     28   

Initial Company Transfer Amount

     63   

Initial Working Capital Statement

     26   

Intellectual Property

     4   

Inventory

     5   

IRS

     5   

Knowledge of the Company

     5   

Law

     5   

Leased Real Property

     5   

Liabilities

     5   

Lien

     6   

Losses

     6   

Marketing Period

     6   

Material Adverse Effect

     7   

Materials of Environmental Concern

     8   

Minority Shareholders

     8   

Multiemployer Plan

     66   

Notice of Disagreement

     27   

Other Dividable Contracts

     8   

Owned Real Property

     8   

Parent

     1   

Parent Shareholder Approval

     42   

PBGC

     36   

Pension Plan Transfer Amount

     64   

Permits

     32   

Permitted Liens

     8   

Person

     9   

Post-Closing Adjustment

     29   

Post-Closing Consents

     49   

Post-Closing Dividable Contracts

     21   

Post-Termination Welfare Plans

     65   

Pre-Closing Period

     44   

Pre-Closing Tax Period

     9   

Product

     9   

Proposed Transaction

     56   

Purchase Price

     23   

Qualifying Shared Asset

     9   

Real Estate Leases

     9   

Real Properties

     9   

Recall

     9   

Registered IP

     33   

Related to the Business

     9   

Release

     9   

Representative

     10   

Required Financing Information

     10   

Retained Employees

     10   

Review Period

     26   

Revised Company Pension Plan Transfer Amount

     63   

Securities Act

     43   

Seller Licensed IP

     53   

Share Transfer Documents

     12   

Shares

     1   

Software

     10   

Statement of Net Assets

     31   

Stock Purchase

     1   

Straddle Period

     68   

Subsidiary

     10   

Target Working Capital

     10   

Tax

     10   

Tax Returns

     10   

Third Party Claim

     75   

Third Party Rights

     21   

Title Company

     55   

Trademarks

     4   

Transaction Agreements

     11   

Transfer Taxes

     52   

Transferred Assets

     12   

Transferred Employee

     59   

Transferred Entities

     1   

Transferred Entity Contract

     11   
 

 

ii


Transferred Entity Employee

     11   

Transferred Entity Plan

     11   

Transferred IP

     13   

Transition Services Agreement

     52   

U.S. Economic Sanctions

     40   

Union Employee

     11   

Working Capital

     11   
 

 

iii


This PURCHASE AGREEMENT, dated as of October 9, 2013 (this “ Agreement ”), is made among DEL MONTE CORPORATION, a Delaware corporation (the “ Company ”), and DEL MONTE FOODS CONSUMER PRODUCTS, INC., a Delaware corporation (the “ Acquiror ”), and, solely for purposes of Section 11.20 , DEL MONTE PACIFIC LIMITED, a corporation established under the laws of the British Virgin Islands (“ Parent ”).

WHEREAS, the Company owns, directly or indirectly, all of the issued and outstanding equity interests of each of the entities identified as “Transferred Entities” set forth in Section 1.1(a) of the Disclosure Schedule, which are referred to herein as the “ Transferred Entities ”. The issued and outstanding equity interests of the Transferred Entities are referred to herein as the “ Shares ”;

WHEREAS, the Company and the Transferred Entities are engaged in the businesses of developing, manufacturing, marketing, distributing and selling food and beverage products for human consumption under the brands DEL MONTE, S&W, CONTADINA and COLLEGE INN and others (collectively, the “ Business ”); and

WHEREAS, upon the terms and subject to the conditions set forth in this Agreement, the Company wishes to sell to the Acquiror (or certain designated Affiliates of the Acquiror), and the Acquiror (or certain designated Affiliates of the Acquiror) wishes to purchase from the Company, (i) the Shares (such purchase, the “ Stock Purchase ”) and (ii) certain of the assets of the Company Related to the Business, in each case, upon the terms and subject to the conditions set forth in this Agreement. In addition, the Acquiror wishes to assume, and the Company wishes to have the Acquiror assume, certain Liabilities of the Company, in each case, upon the terms and subject to the conditions set forth in this Agreement.

NOW, THEREFORE, in consideration for the premises and mutual covenants, representations, warranties and agreements hereinafter set forth, the parties to this Agreement agree as follows:

ARTICLE I

DEFINITIONS

SECTION 1.1 Certain Defined Terms . As used herein the following terms not otherwise defined have the following respective meanings:

Acquiror Fundamental Representations ” means those representations and warranties set forth in Section 4.2 and Section 4.6 .

Action ” means any civil, criminal or administrative litigation, claim, action, suit, arbitration, hearing, investigation or other similar proceeding before any Governmental Entity or self-regulatory organization.

Actuary ” means, when immediately preceded by “the Company,” the actuary retained by the Company in respect of the Company Pension Plan, and shall mean, when immediately preceded by “Acquiror,” the actuary retained by the Acquiror in respect of, respectively, the Acquiror Pension Plan.


Affiliate ” means, with respect to any specified Person, any other Person that, directly or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with such specified Person.

Ancillary Agreements ” means the Share Transfer Documents, Transition Services Agreement, Transitional Trademark License and the Bill of Sale, Assignment and Assumption Agreement.

Bill of Sale, Assignment and Assumption Agreement ” means the Bill of Sale, Assignment and Assumption Agreement among the Company and the Acquiror, substantially in the form attached hereto as Exhibit A .

Business Books and Records ” means all books, records, files and correspondence (whether in original or photostatic form) to the extent held for use exclusively in connection with, or exclusively relating to, the Business, including lists of past customers and suppliers and social media information.

Business Day ” means any day other than Saturday, Sunday or other day on which banks in San Francisco, California are required or permitted by Law to close.

Business Employee ” means an individual (other than any Retained Employee) whose employment or services relates primarily to the operation of the Business, whether salaried or hourly and including individuals on layoff, or medical, educational, personal, long-term, short-term, disability, family, paid time off or other authorized leave of absence, who is employed with the Business immediately prior to the Closing Date.

Business Pension Participants ” means all Business Employees and Former Business Employees who, immediately prior to the Closing Date, were participants, whether or not vested, under the Company Pension Plan as agreed to between the Company and the Acquiror and set forth on Section 6.5(a) of the Disclosure Schedule.

Business Territory ” means the United States and South America.

Cash on Hand ” means all cash and cash equivalents. For avoidance of doubt, (i) Cash on Hand shall be calculated net of issued but uncleared checks and drafts, and (ii) shall include checks and drafts deposited for the account of the Company which have not cleared as of the date of determination.

Code ” means the United States Internal Revenue Code of 1986, as amended.

Collective Bargaining Agreement ” means any collective bargaining agreement, works council agreement, union contract and/or memoranda of understanding in effect as of the date hereof between the Company and any group or union representing the Business Employees.

Company Contract ” means any Contract that is not (a) an Assumed Contract, (b) a Transferred Entity Contract or (c) a Dividable Contract.

 

2


Company Pension Plan ” means the Del Monte Corporation Retirement Plan.

Company Plan ” means each “employee benefit plan” (within the meaning of Section 3(3) of ERISA), and any material severance, change in control, employment, retention, vacation, incentive, stock-based incentive, bonus, fringe benefit or perquisite agreement, plan, program or policy sponsored or maintained by the Company or any of its Subsidiaries, in which any Business Employee participates or has rights to current or future payments or benefits.

Competing Product ” means broth packaged in metal or tetra containers or processed fruit, vegetables or tomatoes packaged in metal, glass or plastic containers; provided , however , that any product containing one or more of the foregoing as ingredients shall not be a “ Competing Product ” if such ingredients constitute less than 50% of the total ingredients of such product.

Control ” means, with respect to the relationship between or among two or more Persons, the possession, directly or indirectly, of the power to direct or cause the direction of the affairs or management of such Person, whether through the ownership of voting securities, as trustee or executor, by contract or otherwise, including the ownership, directly or indirectly, of securities having the power to elect a majority of the board of directors or similar body governing the affairs of such Person. The terms “ Controlled by ”, “ Controlled ”, “ under common Control with ” and “ Controlling ” shall have correlative meanings.

Environmental Law ” means any and all applicable Laws regulating, relating to or imposing liability or standards of conduct concerning protection of the environment.

Environmental Permit ” means any permit, license or written approval required of the Business under applicable Environmental Law.

ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.

Excluded UPC Codes ” means the universal product codes used in the Business that are related to any products which are manufactured by the Business for any other Person.

Facilities ” means the real property and buildings described in Section 1.1(b) of the Disclosure Schedule.

Federal Law of Economic Competition ” means the Federal Law of Economic Competition of the Mexican Republic.

Financing Sources ” mean the lenders that have committed to provide all or any part of the Financing Commitments, including the parties to any joinder agreements, indentures or credit agreements entered into in connection therewith.

 

3


Former Business Employee ” means an individual whose employment related primarily to the operation of the Business, whether salaried or hourly and including individuals on layoff, or medical, educational, personal, long-term, short-term, disability, family or other authorized leave of absence, but who ceased to be employed by the Company for any reason, including retirement, at any time prior to the Closing Date.

Fundamental Representations ” means those representations and warranties set forth in Section 3.2 , Section 3.4 , Section 3.5(c) , Section 3.9(a) , Section 3.9(b) , Section 3.11 , clause (i) of Section 3.14(a) and Section 3.16 .

GAAP ” means United States generally accepted accounting principles as applied and maintained throughout the applicable periods by the Company.

Governmental Entity ” means any government or any court, arbitral tribunal, administrative agency or commission or other governmental or other regulatory authority or agency, whether federal, state, local, transnational or foreign.

Governmental Order ” means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Entity.

HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations under such Act.

Indebtedness ” means, as applied to any Person, as of a particular date of determination, without duplication, (i) indebtedness of such Person for borrowed money or issued in substitution for or exchange of indebtedness for borrowed money, (ii) indebtedness of such Person evidenced by any note, bond, debenture or other debt security, (iii) indebtedness of such Person for the deferred purchase price of property or services with respect to which such Person is liable, contingently or otherwise, as obligor or otherwise (other than trade payables and other current liabilities incurred in the ordinary course of business), (iv) indebtedness guaranteed in any manner by such Person (including guarantees in the form of an agreement to repurchase or reimburse), (v) obligations under capitalized leases with respect to which such Person is liable as obligor or guarantor and (vi) net cash payment obligations under swaps, options, derivatives and other hedging agreements or arrangements of any of such Person or its Subsidiaries that will be payable upon termination thereof (assuming termination of such obligations on the date of such determination).

Intellectual Property ” means all rights in and to all trademarks, trade dress, trade names, service marks, brand names, domain names, logos, social media identifiers and other source indicators, all registrations and applications therefor, and all goodwill associated therewith (the “ Trademarks ”); inventions, invention disclosures, patents, patent applications, reissues, re-examinations, divisionals, continuations and continuations-in-part; copyrights, copyrightable works, copyright applications, internet and intranet websites (including data and collections of data), web page content, social media content, all registrations and applications therefor; all proprietary rights in varieties of plants, fruits, vegetables, seeds, grains and other agricultural inventions, including

 

4


plant varietal certificates, applications for plant varietal certificates, and all subject matter related thereto; know-how, trade secrets, processes, specifications, technical information, formulae, methodologies, business processes, research and development data, recipes, process sheets and mixing instructions, proprietary customer lists, proprietary vendor lists, proprietary manufacturing and sales information, and all other proprietary scientific, engineering, mechanical, financial, marketing, practical or other knowledge or experience; works of original authorship, copyrighted works, copyrightable works and design rights, Software, databases, database rights and all other intellectual property rights; and all documentation and media constituting, describing or relating to any of the foregoing.

Inventory ” means all inventory that are Related to the Business and that are (i) finished goods held for sale by the Company, (ii) raw materials, packaging and work in progress held by the Company, (iii) held by third parties (including, to the extent applicable, the Acquiror and its Affiliates) under co-pack agreements or similar manufacturing arrangements or (iv) held by a vendor on a consigned basis.

IRS ” means the U.S. Internal Revenue Service.

Knowledge of the Company ” or “ the Company’s Knowledge ” means, with respect to any particular matter, the actual knowledge of the individuals listed on Section 1.1(c) of the Disclosure Schedule.

Law ” means any law, statute, ordinance, rule (including common law), regulation, Action, code, decree or other legally enforceable requirement of any Governmental Entity, and includes rules and regulations of any regulatory or self-regulatory authority.

Leased Real Property ” means (i) the real property leased by the Company as tenant, subtenant or otherwise, together with all buildings and other structures, facilities or improvements located thereon, all fixtures attached or appurtenant thereto and all easements, licenses, rights and appurtenances relating to the foregoing, in each case Related to the Business and as set forth in Section 1.1(d)(i) of the Disclosure Schedule (the “ Business Leased Real Property ”) and (ii) the real property leased by the Transferred Entities as tenant, subtenant or otherwise, together with all buildings and other structures, facilities or improvements located thereon, all fixtures attached or appurtenant thereto and all easements, licenses, rights and appurtenances relating to the foregoing as set forth in Section 1.1(d)(ii) of the Disclosure Schedule.

Liabilities ” means any and all losses, claims, charges, debts, demands, actions, damages, obligations, payments, costs and expenses, bonds, indemnities and similar obligations, covenants, controversies, promises, omissions, guarantees, make whole agreements and similar obligations and other liabilities of whatever kind and nature, including all contractual obligations, whether absolute or contingent, inchoate or otherwise, primary or secondary, direct or indirect, absolute or contingent, matured or unmatured, liquidated or unliquidated, accrued or unaccrued, known or unknown, whenever arising, and including those arising under any law, rule, regulation, action,

 

5


threatened or contemplated action (including the costs and expenses of demands, assessments, judgments, settlements and compromises relating thereto and attorney’s fees and any and all costs and expenses (including allocated costs of in-house counsel and other personnel), whatsoever incurring in investigating, preparing or defending against any such actions or threatened or contemplated actions), order or consent decree of any Governmental Entity or any award of any arbitrator or mediator of any kind, and those arising under any contract, commitment or undertaking, including those arising under this Agreement.

Lien ” means any title defect or objection, lien, pledge, mortgage, deed of trust, security interest, claim (whether or not made, known or contingent), judgment, charge, conditional sale or other title retention agreement, option, easement, encroachment, lease, transfer restriction under any stockholder or similar agreement, or any other similar restriction or limitation whatsoever.

Losses ” means all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including any Action brought by any Governmental Entity or other Person and including reasonable attorneys’ fees).

Marketing Period ” means the first period of twenty (20) consecutive Business Days ( provided , that (i) the days from and including November 28, 2013 through and including November 29, 2013, shall not be considered Business Days and (ii) if such period has not ended prior to December 20, 2013, such period shall be deemed not to have commenced until January 6, 2014) after the date hereof and throughout which: (a) the Acquiror shall have the Required Financial Information and (b) the conditions set forth in Section 8.1 (other than Section 8.1(b)) have been satisfied or waived (other than those conditions that by their terms are to be satisfied on the Closing Date) and nothing shall have occurred and no condition shall exist that would cause any conditions set forth in Section 8.2 of this Agreement to fail to be satisfied assuming the Closing were to be scheduled for any time during such twenty (20) consecutive Business-Day period (provided, with respect to Section 8.2(b) , only failures to perform or comply with agreements contained in this Agreement that would impair the ability of the Acquiror to arrange the financing contemplated by the Financing Commitments shall be considered for purposes of determining whether such condition has been satisfied); provided , that the Marketing Period shall not be deemed to have commenced if, prior to the completion of the Marketing Period, (i) the Company’s auditors shall have withdrawn their audit opinion with respect to any of the Audited Financial Statements, in which case the Marketing Period shall not be deemed to commence unless and until a new audit opinion is issued with respect to the applicable Audited Financial Statements by such auditor or another accounting firm of national standing, (ii) the financial statements included in the Required Financial Information on the first day of any such twenty (20) consecutive Business Day period become “stale” or not sufficiently current on any day during such period under the provisions of Rule 3-12 of Regulation S-X applicable to “all other filers” for a registration statement using such financial statements to be declared effective by the Securities and Exchange Commission on the last day of such period or (iii) the Company determines to restate the consolidated historical financial statements of the Business, in which case the Marketing Period shall not be deemed to commence until such

 

6


restatement has been completed and the relevant financial statement has been amended or the Company has indicated that it has concluded that no restatement shall be required in accordance with GAAP; provided; further , that the Marketing Period shall end on any earlier date on which the financing contemplated by the Financing Commitments is consummated; provided; further , that if the Company shall in good faith reasonably believe it has delivered the Required Financial Information, it may deliver to the Acquiror a written notice to that effect (stating when it believes it completed such delivery), in which case the Marketing Period shall be deemed to have commenced on the date specified in that notice unless the Acquiror in good faith reasonably believes the Company has not completed delivery of the Required Financial Information and, within three (3) Business Days after the delivery of such notice by the Company, delivers a written notice to the Company to that effect (stating with reasonable specificity which Required Financial Information Acquiror believes the Company has not delivered).

Material Adverse Effect ” means any change, event, effect, circumstance and/or development (or combination of the foregoing) which has had or would reasonably be expected to have a material adverse effect on the business, financial condition, or results of operations of the Business taken as a whole; provided , however , no such change, event, effect, circumstance and/or development resulting from or arising in connection with the following shall constitute (or be taken into account in determining the occurrence of) a Material Adverse Effect: (i) the announcement of, or the taking of any action contemplated by, this Agreement and the Ancillary Agreements, including by reason of the identity of the Acquiror or any communication by Acquiror regarding the plans or intentions of Acquiror with respect to the conduct of the Business, (ii) changes or conditions affecting generally the industries in which the Business operates including changes in commodity and raw material costs, fuel costs and metal costs, (iii) any change in economic conditions or the financial, banking, currency or capital markets in general (whether in the United States or any other country or in any international market) or changes in currency exchange rates or currency fluctuations, (iv) the announcement, declaration, commencement, occurrence, continuation or threat of any war or armed hostilities, any act or acts of terrorism, (v) acts of God or other calamities, national or international politics or social actions or conditions, including the engagement by any country in hostilities, whether commenced before or after the date hereof, and whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack, (vi) changes in Law, GAAP or other applicable accounting standards or interpretations thereof, (vii) the resignation or termination of any employee of the Business, (viii) the Company’s compliance with the terms of this Agreement or any Ancillary Agreements, (ix) any actions taken, or failures to take action, or such other changes or events, in each case, to which the Acquiror has expressly consented, or the failure to take actions specified in Section 5.1 due to Acquiror’s failure to consent thereto following the request of the Company, or (x) any failure to meet any projections or forecasts or estimates of revenues or earnings for any period (it being understood and agreed that the facts and circumstances giving rise to such failure that are not otherwise excluded from the definition of Material Adverse Effect may be taken into account in determining whether there has been a Material Adverse Effect); provided , that, any of the matters set forth in clauses (ii) through (vi) shall be taken into account in determining whether there is a Material Adverse Effect only to the extent that such effects have a disproportionate adverse effect on the Business (as compared to other businesses operating in the industries in which the Business operates).

 

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Materials of Environmental Concern ” means hazardous chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum and petroleum products, asbestos or asbestos-containing materials or products, polychlorinated biphenyls, lead or lead-based paints or materials, diesel products, radon, toxic fungus, toxic mold, mycotoxins or other hazardous substances that would reasonably be expected to have an adverse effect on human health or the environment.

Minority Shareholders ” means the holders of Shares listed in Section 1.1(h) of the Disclosure Schedule.

Other Dividable Contracts ” means those Dividable Contracts which are not Critical Dividable Contracts.

Owned Real Property ” means real property owned (i) by the Company wherever located that is Related to the Business as set forth in Section 1.1(e)(i) of the Disclosure Schedule (the “ Business Owned Real Property ”), and (ii) by the Transferred Entities, in each case, including any buildings, structures and improvements located on any such real property and all fixtures attached thereto and all easements, rights of way, reservations, privileges, appurtenances and other estates and rights pertaining thereto, as set forth in Section 1.1(e)(ii) of the Disclosure Schedule.

Permitted Liens ” means (a) statutory liens for current Taxes not yet due or delinquent (or which may be paid without interest or penalties) or the validity or amount of which is being contested in good faith by appropriate proceedings and for which appropriate reserves have been established in accordance with GAAP, (b) mechanics’, carriers’, workers’, repairers’ and other similar liens arising or incurred in the ordinary course of business relating to obligations as to which there is no default on the part of the Company or any Transferred Entity or the validity or amount of which is being contested in good faith by appropriate proceedings and for which appropriate reserves have been established in accordance with GAAP, or pledges, deposits or other liens securing the performance of bids, trade contracts, leases or statutory obligations (including workers’ compensation, unemployment insurance or other social security legislation) and relating to obligations as to which there is no default on the part of the Company or any Transferred Entity, (c) rights of lessors under the Real Estate Leases under which neither the Company nor any Transferred Entity is in material default, (d) with respect to the Real Properties, zoning, entitlement, conservation restriction and other land use and environmental regulations by Governmental Entities which do not materially interfere with the present use of the Real Properties subject thereto, taken as a whole, and which are not violated by the present use of the Real Property to which they relate or the present operation of the business as presently conducted thereon, taken as a whole, (e) all covenants, conditions, restrictions, easements, charges, rights-of-way, minor title defects and other similar matters (whether or not of record) which do not and would not reasonably be expected to materially adversely interfere with the use of the Real Property subject thereto as presently used, (f) matters disclosed in title policies, title reports or title

 

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commitments made available to Acquiror as of the date hereof, (g) matters which would be disclosed by an accurate survey or inspection of the Real Properties which do not materially impair the occupancy or current use of the Real Property which it (or they) encumber, taken as a whole, (h) rights of licensees under trademark license agreements, intellectual property security agreements and other restrictions on use of Trademarks, (i) Liens that have been placed by any developer, landlord or other third party on property over which the Company or any Transferred Entity has easement rights, (j) Real Estate Leases affecting the Real Properties entered into in the ordinary course of business consistent with past practice and (k) all other Liens set forth in Section 1.1(f) of the Disclosure Schedule.

Person ” means any corporation, association, partnership, limited liability company, organization, business, individual or other entity or similar group.

Pre-Closing Tax Period ” means any Tax period ending on or before the Closing Date.

Product ” means any product in development, manufactured, distributed or sold by or on behalf of the Business.

Qualifying Shared Asset ” means any asset (other than Intellectual Property) of the Company or any of its Affiliates (other than any of the Transferred Entities) that was not Related to the Business but that was utilized by the Company and its Affiliates in connection with activities related to the Business.

Real Estate Leases ” means, collectively, each lease, sublease, license and other agreement pursuant to which the Company or any Transferred Entity (i) is granted the right to use or occupy, now or in the future, the Leased Real Property or any portion thereof, including any and all modifications, amendments and supplements thereto and any assignments thereof and (ii) is the landlord or lessor, sublandlord or sublessor, or licensor and grants the right to use or occupy, now or in the future, the Owned Real Property or Leased Real Property or any portion thereof to a third party, including any and all modifications, amendments and supplements thereto and any assignments thereof.

Real Properties ” means, collectively, the Owned Real Property and the Leased Real Property.

Recall ” means recall, removal, retrieval, correction and/or withdrawal of Product.

Related to the Business ” means (i) used or held for use primarily in or (ii) arising, directly or indirectly, primarily out of the operation or conduct of, the Business as conducted by the Company at any time.

Release ” shall have the same meaning as in Section 101(22) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601(22).

 

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Representative ” of a Person means the directors, officers, employees, advisors, agents, consultants, attorneys, accountants, investment bankers or other representatives of such Person.

Required Financing Information ” means (a) the audited consolidated balance sheets and related statements of income, shareholders’ equity and cash flows of the Business on a consolidated basis for the two most recently completed fiscal years ended at least 90 days prior to the Closing Date (the “ Audited Financial Statements ”) and (b) the unaudited consolidated balance sheet and related statements of income, shareholders’ equity and cash flows of the Business for each fiscal quarter ended subsequent to April 28, 2013 and ending at least 45 days prior to the Closing Date.

Retained Employees ” means the individuals set forth in Section 1.1(g) of the Disclosure Schedules.

Software ” means all computer programs, software, firmware and related documentation.

Specified Fundamental Representations ” means the representations and warranties set forth in Section 3.5(c) , Section 3.9(a) , Section 3.11 and clause (i) of Section 3.14(a) .

Subsidiary ” means, with respect to any Person, any corporation, partnership, joint venture, limited liability company or other business association or entity, whether incorporated or unincorporated, of which (i) such Person or any other Subsidiary of such Person is a general partner or a managing member, (ii) such Person and/or one or more of its Subsidiaries holds voting power to elect a majority of the board of directors or other governing body performing similar functions or (iii) such Person and/or one or more of its Subsidiaries, directly or indirectly, owns or controls more than 50% of the total voting power or equity, membership, partnership or similar interests.

Target Working Capital ” means $620,000,000.00.

Tax ” or “ Taxes ” means any and all federal, state, county, provincial, local, foreign and other taxes, charges, fees, levies or other assessments of any kind whatsoever, including all net income, gross income, gross receipts, premium, estimated, sales, use, ad valorem, property, transfer, value-added, franchise, profits, license, withholding, payroll, employment, excise, severance, stamp, occupation, customs, duties, and imposts, whether disputed or not, together with any interest, additions to tax, and penalties with respect thereto imposed by any Tax authority as well as any liability for the Taxes of any other Person under Treasury Regulations Section 1.1502-6, or that arises by contract, by Law, in equity, by indemnify, as a successor or otherwise.

Tax Returns ” means any return, report, declaration, claim for refund, information return or other document (including any related or supporting schedule, statement or information) filed or required to be filed in connection with the determination, assessment or collection of any Tax of any party or the administration of any laws, regulations or administrative requirements relating to any Tax (including any amendment thereof).

 

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Transaction Agreements ” means this Agreement and each of the Ancillary Agreements.

Transferred Entity Contract ” means a Contract of one or more of the Transferred Entities that is not a Dividable Contract.

Transferred Entity Employee ” means any individual employed by any Transferred Entity immediately prior to the Closing Date.

Transferred Entity Plan ” means each Company Plan that is sponsored or maintained solely by a Transferred Entity.

Union Employee ” means any Business Employee who is covered under any Collective Bargaining Agreement.

Working Capital ” means the amount which is determined pursuant to the Statement of Working Capital, the form of which is attached hereto as Exhibit B (the “ Form of Working Capital Statement of the Business ”). For purposes of this Agreement, Working Capital shall be calculated using the same accounting methods, policies, practices and procedures, with consistent classifications, judgments and allocation methodology, as were used in preparation of the Statement of Net Assets, as further modified or clarified by the methodologies set forth in the Form of Working Capital Statement of the Business; provided , however , Working Capital shall not be calculated to include any changes in assets or liabilities as a result of purchase accounting adjustments or other changes arising from or resulting as a consequence of the transactions contemplated hereby other than as expressly set forth on the Form of Working Capital Statement of the Business; it being understood that the current assets and current liabilities used to calculate Working Capital shall be those identified by the categories on the Form of Working Capital Statement of the Business that are solely and exclusively related to the Business or, to the extent such a category is not solely and exclusively related to the Business, the current assets and current liabilities in such category allocated to the Business in accordance with this sentence.

ARTICLE II

PURCHASE AND SALE

SECTION 2.1 Purchase and Sale of Shares .

(a) Subject to the satisfaction or waiver of the conditions set forth in this Agreement, at the Closing and as of the Closing Date, the Company shall, and shall cause the Minority Shareholders to, sell, convey, assign, transfer and deliver to Acquiror (or certain designated Affiliates of the Acquiror), and Acquiror shall, or shall cause such designated Affiliates to, purchase and acquire from the Company, or such Minority Shareholder all of the Company’s, or such Minority Shareholder’s, right, title and interest in and to the Shares, free and clear of all Liens; provided that, at the Company’s sole election, the equity interests of Del Monte Argentina S.A. held by Del Monte Andina C.A. need not be separately sold, conveyed, assigned, transferred or delivered.

 

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(b) For the avoidance of doubt, upon the consummation of the Stock Purchase, Acquiror or its designated Affiliates shall assume control of all of the issued and outstanding Shares, assets and liabilities of the Transferred Entities, and except as expressly set forth herein in respect of Liabilities pursuant to Section 2.2(d)(iii) , Section 2.2 shall not apply to the Transferred Entities or the purchase and sale of the Shares contemplated hereby. At the Closing, all such assets of the Transferred Entities shall be free and clear of all Liens other than Permitted Liens(but specifically excluding any Liens arising from or related to those Liens set forth in Section 1.1(f) of the Disclosure Schedule).

(c) The transfer of the Shares by the Company will be effected pursuant to short-form share transfer agreements, forms, notices of transfer, notarial deeds, or other similar documents and any other ancillary documents (such as powers of attorney, lost certificates, indemnities with respect to lost certificates, updated share registers, shareholder and board resolutions (as necessary)) or other appropriate documents as may reasonably be requested by the Acquiror (the “ Share Transfer Documents ”), each subject to the terms and conditions of this Agreement and on a country-by-country basis. Each Share Transfer Document will comply with the constitution, articles of incorporation, bylaws or other applicable charter or organizational documents of the relevant Transferred Entity. The parties will prepare the Share Transfer Documents as soon as reasonably practicable after the date of this Agreement, and (i) the Company will execute, or cause the Minority Shareholders to execute, and deliver the Share Transfer Documents, and (ii) the Acquiror will execute, or cause its Affiliates to execute, and deliver the Share Transfer Documents, at the Closing upon the terms and subject to the conditions of this Agreement.

SECTION 2.2 Purchase and Sale of Assets .

(a) Transferred Assets . On the terms and subject to the conditions set forth in this Agreement and subject to the exclusions set forth in Section 2.2(b) , at the Closing, the Company shall sell, convey, assign, transfer and deliver, to the Acquiror (or, in the case of certain of the Transferred Assets to the extent designated by the Acquiror, certain designated Affiliates of the Acquiror), and the Acquiror shall purchase, acquire and accept from the Company (or, in the case of certain of the Transferred Assets to the extent designated by the Acquiror, to cause the Acquiror’s designated Affiliates to purchase, acquire and accept), all of the Company’s right, title and interest, in each case free and clear of all Liens other than Permitted Liens (but specifically excluding any Liens arising from or related to those Liens set forth in Section 1.1(f) of the Disclosure Schedule), in, to and under the following assets, properties, leases, rights, interests, Contracts and claims as the same shall exist immediately prior to the Closing (collectively, the “ Transferred Assets ”):

(i) all right, title and interest in and to the Business Owned Real Property;

 

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(ii) all right, title and interest in and to the Business Leased Real Property pursuant to the Real Estate Leases;

(iii) all Inventory, wherever held, including all Inventory in transit between sites;

(iv) all trade accounts receivable and other receivables (including any claims, remedies and other rights related thereto) of the Company, whether or not billed, for Products sold prior to the Closing Date or associated with the Transferred Assets;

(v) subject to Section 2.2(a)(xxii) , all right, title and interest in and to each contract, lease, license, understanding, commitment or other agreement, whether oral or written (“ Contracts ”) that (A) relate exclusively to the Business, except to the extent any third-party consents required to be obtained prior to the Closing have not been obtained by the Company pursuant to the terms of Section 2.3 , or (B) subject to Section 2.4 , all Dividable Contracts solely to the extent Related to the Business, including those listed on Section 2.2(a)(v) of the Disclosure Schedule (collectively, the “ Assumed Contracts ”);

(vi) subject to the Transitional Trademark License and to the terms of the Company IP Agreements, all right, title and interest owned by the Company in all Intellectual Property Related to the Business (the “ Transferred IP ”);

(vii) all transferable Permits that are owned by the Company and necessary to conduct the Business as currently conducted;

(viii) other than any Excluded Assets of the type described in Section 2.2(b)(xii) below, and subject the terms of the Transition Services Agreement, all Business Books and Records, except to the extent constituting Intellectual Property, which is governed solely by Section 2.2(a)(vi) ;

(ix) to the extent permitted by Law, all personnel and employment records that relate to a Transferred Employee, provided , that the Company shall be permitted to retain copies thereof;

(x) (A) all machinery, equipment and other items of personal property owned or leased by the Company, that (a) are located at the Facilities, the Business Owned Real Property or the Business Leased Real Property on the Closing Date, (b) are primarily related to the research and development projects of the Company with respect to the Business or Products or (c) as described on Section 2.2(a)(x) of the Disclosure Schedules and (B) all vehicles, furniture, fixtures, supplies, spare parts, dies, molds, tools and office equipment, whether owned or leased, in each case located at the Facilities, the Business Owned Real Property or the Business Leased Real Property on the Closing Date (collectively, the “ Equipment ”) and all warranties and guarantees, if any, express or implied, existing for the benefit of the Company in connection with the Equipment to the extent transferable and Related to the Business;

 

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(xi) all commitments and orders from third parties (subject to the terms and conditions of such commitments and orders) for the purchase of Products, raw materials, Equipment or other goods and services that have not been received as of the Closing;

(xii) all of the Company’s sales and promotional materials, catalogs, pamphlets, brochures, advertising materials, directories and other publications solely to the extent Related to the Business, and plates, copy engravings, photographs and other materials used in the printing or production of any such items solely to the extent Related to the Business, except in each case to the extent that the Company is required by law or regulation to retain the same and except to the extent constituting Intellectual Property, which is governed solely by Section 2.2(a)(vi) above;

(xiii) to the extent transferable as permitted by GS1 US, universal product codes used on Products, except for the Excluded UPC Codes;

(xiv) all intercompany receivables from the Company or its Subsidiaries Relating to the Business;

(xv) all rights of the Company to bring an Action and to obtain damages, refunds, rights of recovery, rights of setoff and rights of recoupment of any kind relating to any infringement of any Intellectual Property Related to the Business and accruing or arising at any time prior to, on or after the Closing Date;

(xvi) all expenses to the extent Related to the Business that have been prepaid by the Company, including lease and rental payments;

(xvii) all property and casualty insurance proceeds received or receivable in connection with the damage or destruction of any asset that is included in the Transferred Assets or would have been included in the Transferred Assets but for such damage or destruction and proceeds received or receivable in connection with products liability insurance policies of the Company or its Subsidiaries, in respect of Products sold on or prior to the Closing Date;

(xviii) assets of the Company Pension Plan, as contemplated by, and in accordance with, Section 6.5 ;

(xix) all refunds, deposits or over-payments Related to the Business prior to the Closing Date;

(xx) to the extent located at the Facilities, the Business Owned Real Property or the Business Leased Real Property or in the possession of any Transferred Employees, all laptops, PCs and monitors, computer hardware and other systems hardware and networking and communications assets, including servers, databases, backups and peripherals, and including, subject to Section 2.4 , any such items that are Dividable Contracts; provided , that notwithstanding the foregoing, in no event shall any Software be a Transferred Asset;

 

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(xxi) all sales and use Tax certificates of, as well as all exemption certificates collected for sales and use Tax purposes by, the Company and its Subsidiaries Related to the Business;

(xxii) (A) all confidentiality agreements pursuant to which the Company has disclosed confidential information Related to the Business and which were executed within the twelve months prior to the date of this Agreement and (B) all confidentiality agreements relating to the sale of the Business (but only to the extent such agreements protect the confidential information of the Business itself); and

(xxiii) other than any Excluded Assets, all other assets, properties or rights of every kind and description, wherever located, whether personal or mixed, tangible or intangible, that are owned by the Company or any of its Affiliates and Related to the Business.

(b) Excluded Assets . Notwithstanding anything to the contrary set forth in Section 2.2(a) or elsewhere in this Agreement, the Acquiror expressly understands and agrees that the following assets, properties, leases, rights, interests, Contracts and claims of the Company (the “ Excluded Assets ”) shall be retained by the Company and its Subsidiaries (other than the Transferred Entities), and shall be excluded from the Transferred Assets:

(i) all Cash on Hand held by the Company or held by any bank or other third Person on the Company’s behalf;

(ii) all Intellectual Property owned or used by the Company and its Subsidiaries (other than the Transferred Entities), other than the Transferred IP;

(iii) all Tax Returns, and all claims, refunds or credits in respect of Taxes of the Company, any of its Subsidiaries (other than the Transferred Entities) or of the operation of the Business or the Transferred Assets;

(iv) the Company Plans, and any assets related thereto, other than as contemplated by, and in accordance with, Article VI hereof;

(v) except as set forth in Section 2.2(a)(xvii) all policies of or agreements for insurance and interests in insurance pools and programs;

(vi) any assets Related to the Business owned on the date hereof or acquired after the date hereof and sold or otherwise disposed of prior to the Closing in the ordinary course of business consistent with past practice and not in violation of any other provisions of this Agreement;

(vii) subject to Section 2.2(a)(xv) and Section 2.2(a)(xvii) , all rights to insurance or indemnity, and all rights, claims, credits, defenses, causes of action (including counterclaims), rights of recovery or set-off and all other rights to bring any Action at law or in equity (x) relating to any period through the Closing, (y) to the extent arising out of or relating to any Excluded Asset or Excluded Liability or (z) to the extent that the assertion of such cause of action or defense is necessary or useful in defending

 

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any claim that may be asserted against the Company or its Affiliates for which the Company does not seek indemnification pursuant to Article X or for which indemnification is provided by the Company to the Acquiror Indemnified Parties pursuant to Article X ;

(viii) any interest or right of the Company under this Agreement and the Ancillary Agreements and any other documents, instruments or certificates executed in connection with this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby;

(ix) all employees of the Company and its Subsidiaries (other than the Transferred Entities) who are not Transferred Employees;

(x) personnel and employment records for employees and former employees of the Business who are not Transferred Employees;

(xi) all assets, properties, leases, rights, interests, Contracts and claims of the Company that are not Related to the Business, including every Company Contract, wherever located, whether tangible or intangible, real, personal or mixed;

(xii) (A) any books and records relating to the Excluded Assets or (B) any books, records or other materials that the Company (x) is required by Law to retain (copies of which, to the extent permitted by Law, and to the extent Related to the Business, will be made available to the Acquiror promptly upon the Acquiror’s reasonable request), (y) reasonably believes are necessary to enable the Company to prepare and/or file Tax Returns (copies of which will be made available to the Acquiror promptly upon the Acquiror’s reasonable request) or (z) is prohibited by Law from delivering to the Acquiror;

(xiii) all Equipment which is not a Transferred Asset;

(xiv) all Excluded UPC Codes;

(xv) all planning, forecast, presentation and strategic planning materials to the extent not related exclusively to the Business and all board of directors materials;

(xvi) all sales and use Tax certificates of, as well as all exemption certificates collected for sales and use Tax purposes by, the Company and its Subsidiaries not Related to the Business;

(xvii) Permits that are owned by the Company and (A) not necessary to conduct the Business as currently conducted or (B) necessary to conduct the Business and not transferable;

(xviii) all application systems and Software, including all computer Software, programs and source disks, and related program documentation, tapes, manuals, forms, guides and other materials; and

 

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(xix) the assets listed or described on Section 2.2(b)(xix) of the Disclosure Schedule.

Notwithstanding anything to the contrary set forth in this Agreement or any of the Ancillary Agreements, the Acquiror acknowledges and agrees that all of the following shall remain the property of the Company, and neither the Acquiror nor any of its Affiliates shall have any interest therein: (x) all records and reports prepared or received by the Company or any of its Affiliates in connection with the sale of the Business and the transactions contemplated hereby, including all analyses relating to the Business or the Acquiror so prepared or received; and (y) subject to Section 2.2(a)(xxii) , all confidentiality agreements with prospective purchasers of the Company or any portion thereof, as the case may be, and all bids and expressions of interest received from third parties with respect thereto.

(c) Assumed Liabilities . On the terms and subject to the conditions set forth in this Agreement and subject to the exclusions set forth in Section 2.2(d) , the Acquiror hereby agrees, effective at the time of the Closing, to assume and thereafter timely to pay, discharge and perform in accordance with their terms, all Liabilities of the Company arising from or relating to the Transferred Assets or the Business, as the same shall exist on the Closing Date and irrespective of whether the same shall arise prior to, on or following the Closing Date (the “ Assumed Liabilities ”). Without limiting the generality of the foregoing, subject to Section 2.2(d) , the following shall be included among the Assumed Liabilities:

(i) all Liabilities arising under or relating to any of the Assumed Contracts, including with respect to Liabilities of the Company as lessee under the Real Estate Leases and subject to Section 2.4 , Liabilities related to Dividable Contracts solely to the extent Related to the Business;

(ii) all Liabilities for Taxes, whether or not accrued, assessed or currently due and payable, relating to the operation or ownership of the Business (including Taxes relating to the Transferred Assets), (x) for any period (or portion thereof) commencing after the Closing Date and (y) apportioned to the portion of a Straddle Period falling after the Closing Date (as determined in accordance with Section 7.1 hereof);

(iii) all Liabilities, whether accruing before, on or after the Closing Date, (A)(1) under any Environmental Laws or otherwise relating to the environment or natural resources, human health and safety or Materials of Environmental Concern and (2) related to the Business (including the Transferred Assets or any past, current or future businesses, operations or properties, including any businesses, operations or properties for which a current or future owner or operator of the Transferred Assets or the Business may be alleged to be responsible as a matter of Law, contract or otherwise), including the costs and expenses of any filings with any Governmental Entity in order to record the transfer of any one or more Transferred Assets to the Acquiror or its Affiliates or (B) relating to the use, application, malfunction, defect, design, operation, performance or suitability of any Product manufactured, sold or distributed prior to the Closing by or on behalf of, or service of the Business rendered prior to the Closing by or on behalf of, the Company to any Person;

 

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(iv) all Liabilities relating to any and all Products (including product liabilities or Recall liabilities and customer deductions, including post-audit claims and deductions taken by customers, including such claims and deductions related to damages, shortages, fees, fines, pricing discrepancies, cash discounts and product returns) regardless of whether such Products were manufactured, sold or distributed before or after Closing;

(v) all Liabilities relating to the return of Products, all refund and replacement obligations and customer deductions with respect to Products regardless of whether such Products were manufactured, sold or distributed before or after Closing;

(vi) all Liabilities related to accounts payable of the Company for Products sold prior to the Closing Date;

(vii) except as otherwise provided in Article VI hereof, all Liabilities related to the Business Employees and Former Business Employees, including any such Liabilities arising under any Company Plan (including any Transferred Entity Plan), regardless of whether such Liabilities were incurred or arise before or after the Closing;

(viii) all Liabilities relating to trade promotion activities or events to the extent Related to the Business (including trade promotion payables or customer deductions) and regardless of whether such activities and events were initiated before or after Closing;

(ix) all Liabilities relating to committed marketing expenditures to the extent Related to the Business and regardless of whether such expenditures were incurred or committed to before or after Closing;

(x) all Liabilities relating to consumer coupons for Products regardless of whether such coupons were issued before or after Closing;

(xi) all Liabilities relating to Taxes for which the Acquiror is liable pursuant to the terms of this Agreement or any other Transaction Agreement regardless of whether such Taxes are incurred before or after Closing;

(xii) all Liabilities relating to the Acquiror’s obligations, agreements, covenants and restrictions for which the Acquiror has responsibility pursuant to the terms of this Agreement and the Transaction Agreements regardless of whether such obligations, agreements, covenants or restrictions were incurred before or after Closing;

(xiii) all Liabilities relating to trade association membership fees, dues and expenses;

(xiv) all Liabilities arising from or relating to the employment, termination of employment or employment practices or worker compensation insurance with respect to the Business before, on or after the Closing Date, including (x) all similar statutory or contractual obligations in any jurisdiction to provide insurance, compensation or benefits for injured past or present employees, and (y) all administrative functions pertaining to existing and future worker compensation claims;

 

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(xv) any Liability to the Company or its Subsidiaries for any intercompany accounts payable and other short term accrued liabilities;

(xvi) all Liabilities relating to Transferred IP whether arising before or after Closing, and all Actions relating to Transferred IP;

(xvii) all Liabilities disclosed or reflected on the Statement of Net Assets as adjusted for activity that has occurred or may occur between April 28, 2013 and the Closing Date;

(xviii) all Liabilities or commitments of the Company or its Affiliates or the Business under confidentiality agreements specified in Section 2.2(a)(xxii) ; and

(xix) all Liabilities arising out of, based upon, resulting from or relating to the Transferred Assets or the Business, and based upon, relating to, arising out of or resulting from any fact, circumstance, occurrence, condition, act or omission relating thereto.

(d) Excluded Liabilities . Notwithstanding anything to the contrary set forth in Section 2.2(c) or elsewhere in this Agreement, the Acquiror is not assuming or agreeing to pay or discharge any of the following Liabilities of the Company or its Subsidiaries (other than the Transferred Entities solely in respect of Section 2.2(d)(i ); it being understood, for the avoidance of doubt, that the Acquiror assumes and agrees to pay or discharge all other Liabilities of the Transferred Entities) (the “ Excluded Liabilities ”):

(i) any Indebtedness of the Company (including any interest thereon or other amounts payable in connection therewith);

(ii) any Liability relating to or arising under any Excluded Asset;

(iii) any Liability for Taxes, relating to the operation or ownership of the Business (including Taxes relating to the Transferred Assets) and any Liability for Taxes of a Transferred Entity, in each case, (x) for any Pre-Closing Tax Period and (y) for the portion of any Straddle Period ending on the Closing Date, apportioned in the manner described in Section 7.1(a) , and any Transfer Taxes imposed in connection with the transactions contemplated by this Agreement that are allocable to the Company pursuant to Section 5.9 ;

(iv) all Liabilities related to the Company Plans, other than the Assumed Liabilities;

(v) all Liabilities to the extent arising out of the operation or conduct by the Company or any of its Affiliates of any business other than the Business;

 

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(vi) all Liabilities related to any equity interests of the Company or any of its Affiliates (including Blue Acquisition Group, Inc.) or obligating the Company to issue, deliver, sell, repurchase, redeem or otherwise make any payments with respect to, or cause to be issued, delivered, sold, repurchased, redeemed or otherwise paid, any equity interests of the Company or any of its Affiliates (including Blue Acquisition Group, Inc.) or obligating the Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such equity interests of the Company or any of its Affiliates (including Blue Acquisition Group, Inc.);

(vii) except as otherwise provided in Section 2.2(c)(vii) , Section 2.2(c)(xiv) or Article VI hereof, all Liabilities related to the Business Employees and Former Business Employees;

(viii) any fees, costs or expenses (including investment banking, financial advisory, legal counsel, accountants, advisors and other service providers) incurred by the Company or any of its Affiliates in connection with this Agreement and the transactions contemplated by this Agreement;

(ix) all Liabilities relating to any failure of any Person to take actions required to comply with any applicable bulk sale Law, bulk transfer Law or similar Law (excluding Tax Laws) in connection with the transactions contemplated by this Agreement; and

(x) all Liabilities in respect of the Company’s Kingsburg, California, or Terminal Island, California, facilities, including with respect to any closures, divestitures or remedial actions regarding such facilities.

SECTION 2.3 Assignment of Certain Transferred Assets . Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall not constitute an agreement to assign or transfer any Transferred Asset (except to the extent provided in Section 2.4 with respect to Dividable Contract) or any claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment or transfer thereof, without the consent of a third party (including any Governmental Entity), would constitute a breach or other contravention thereof or a violation of Law or would in any way adversely affect the rights of the Acquiror (as assignee of the Company) thereto or thereunder. Subject to Section 5.5 , the Company will use its commercially reasonable efforts to obtain any consent necessary for the transfer or assignment of any such Transferred Asset, claim, right or benefit to the Acquiror. For the purposes of this Section 2.3 , the term “commercially reasonable efforts” shall not be deemed to require any Person to pay or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any consent or waiver may be required. If, on the Closing Date, any such consent is not obtained, or if an attempted transfer or assignment thereof would be ineffective or a violation of Law or would adversely affect the rights of the Acquiror (as assignee of the Company) thereto or thereunder so that the Acquiror would not in fact receive all such rights, the Company and the Acquiror will, subject to Section 5.5 , cooperate in a mutually agreeable arrangement (to the extent contractually permitted) under which the Acquiror would, in compliance with Law, obtain the benefits and assume the obligations and bear the economic burdens associated with such Transferred Asset, claim, right or benefit in accordance with this

 

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Agreement, including subcontracting, sublicensing or subleasing to the Acquiror, or under which the Company would enforce for the benefit (and at the expense) of the Acquiror any and all of its rights against a third party (including any Governmental Entity) associated with such Transferred Asset, claim, right or benefit (collectively, “ Third Party Rights ”), and the Company would promptly pay to the Acquiror when received all monies received by it under any such Transferred Asset, claim, right or benefit. Nothing stated in this Section 2.3 shall modify in any respect the conditions set forth in Article VIII .

SECTION 2.4 Dividable Contracts .

(a) The Company shall use its commercially reasonable efforts to cause the transfer to the Acquiror of such portion of each Dividable Contract listed on Section 2.4(a) of the Disclosure Schedule (the “ Critical Dividable Contracts ”), or the benefits thereof, that relates to the Business on terms that maintain the costs to the Business as owned by the Acquiror with the costs to the Business as owned by the Company (a “ Cost Neutral Basis ”). Upon such transfer, the Acquiror shall assume any Liabilities arising after the Closing related to the transferred portion of the Critical Dividable Contracts and any other Liabilities arising under the Critical Dividable Contracts shall remain with the Company. For purposes of this Section 2.4 only, “commercially reasonable efforts” shall include (i) a written reasoned request and recommendation in favor of such transfer to the landlord, customer or supplier that is the other party to such Critical Dividable Contract, (ii) subject to applicable non-disclosure agreements, the provision to the Acquiror of all information and records available to the Company relating to landlords, customers or suppliers, as the case may be, with respect to such portion of such Critical Dividable Contract, (iii) the provision to the Acquiror of available landlord, customer or supplier decision maker(s) with respect to such portion of such Critical Dividable Contract, (iv) if the Company or the Acquiror so requests, in accordance with reasonable commercial practice, the organization of mutually agreeable joint visits of the Acquiror and the Company with such landlords, customers or suppliers, subject, in each case, to any applicable confidentiality agreements or obligations of the Company and (v) prior to the Closing, the Company’s assistance and cooperation in negotiating a separate agreement on a Cost Neutral Basis with the other party to such Critical Dividable Contract if deemed appropriate by the Acquiror. In the event that in connection with any transfer of a portion of a Critical Dividable Contract, the applicable landlord, customer or supplier requests changes that would not result in such portion of such Critical Dividable Contract being transferred on a Cost Neutral Basis or otherwise requires any payments or concessions, the Company shall inform the Acquiror and the Acquiror shall have five (5) Business Days (or such lesser number of Business Days until the Closing Date) either (i) to agree to the transfer of such portion of such Critical Dividable Contract with such changes or to make such payments or (ii) to reject the transfer of such portion of such Critical Dividable Contract in which case the provisions of Section 2.4(b) shall apply.

(b) Notwithstanding anything to the contrary contained in this Agreement, to the extent that any of the Critical Dividable Contracts have not been divided and assigned by the parties prior to Closing (the “ Post-Closing Dividable Contracts ”), then this Agreement shall not constitute a transfer of such portion of any such Post-Closing Dividable Contract, or an attempt thereof. Following the Closing, the parties shall use their commercially reasonable efforts to obtain promptly such authorizations, approvals, consents or waivers and to cooperate with each other in connection with the transfer of any such portion of any Post-Closing Dividable Contract

 

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that has not been divided and assigned prior to Closing; provided , however , that the Company and the Acquiror shall not be required to pay or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any consent or waiver may be required; provided, further, however , that the Acquiror may elect to pay or commit to pay such amounts (or incur such obligations) in its sole discretion. To the extent that the Acquiror is provided the benefits pursuant to the Transition Services Agreement of any portion of any such Post-Closing Dividable Contract, the Acquiror shall perform, for the benefit of the other Persons that are parties thereto, the obligations (including payment obligations) of the Company thereunder and any related Liabilities that, but for the lack of an authorization, approval, consent or waiver in connection with the assignment of such Liabilities to the Acquiror, would have become Liabilities of the Acquiror arising on or after the Closing by virtue of the transfer of such portion of such Post-Closing Dividable Contract and any other obligations and Liabilities arising under such Post-Closing Dividable Contract shall remain with the Company.

(c) Notwithstanding anything to the contrary contained in this Agreement, to the extent that the transfer to the Acquiror of the portion of any Other Dividable Contract that relates to the Business, or any claim or right or any applicable Law would require any Governmental Entity’s or third-party’s authorization, approval, consent or waiver, and the Closing (subject to the satisfaction or waiver of the conditions set forth in Article VIII ) proceeds without such authorization, approval, consent or waiver then this Agreement shall not constitute a transfer of such portion of such Other Dividable Contract, or an attempt thereof. In the event that any such portion of any Other Dividable Contract is not transferred prior to the Closing, then, following the Closing, the parties shall use their commercially reasonable efforts to obtain promptly such authorizations, approvals, consents or waivers and to cooperate with each other in connection therewith; provided , however , that the Company and the Acquiror shall not be required to pay or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any consent or waiver may be required; provided , further , however , that the Acquiror may elect to pay or commit to pay such amounts (or incur such obligations) in its sole discretion. To the extent that the Acquiror is provided the benefits pursuant to the Transition Services Agreement of any portion of such Other Dividable Contract, the Acquiror shall perform, for the benefit of the other Persons that are parties thereto, the obligations (including payment obligations) of the Company thereunder and any related Liabilities that, but for the lack of an authorization, approval, consent or waiver in connection with the assignment of such Liabilities to the Acquiror, would have become Liabilities of the Acquiror arising on or after the Closing by virtue of the transfer of such portion of such Other Dividable Contract and any other obligations and Liabilities arising under such Other Dividable Contract shall remain with the Company.

(d) To the extent authorization, approval, consent or waiver for the transfer of any such portion of any Other Dividable Contract is obtained, the Company shall immediately transfer such portion of any such Other Dividable Contract to the Acquiror, and the Acquiror shall assume obligations arising after such transfer under such portion of any such Other Dividable Contracts.

SECTION 2.5 Closing . As soon as practicable, but in no event later than the second Business Day after the satisfaction or waiver of the conditions to closing specified in Article VIII (other than those conditions which, by their terms, cannot be satisfied until the

 

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Closing, but subject to the satisfaction or waiver of such conditions), the sale and purchase of the Shares and the Transferred Assets and the assumption of the Assumed Liabilities contemplated by this Agreement shall take place at a closing (the “ Closing ”) that will be held at 10:00 a.m., New York City time, at the offices of Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, New York 10017, or such other time or place as the Company and the Acquiror may agree in writing, provided , however , that if the Marketing Period has not ended at such time, the Closing will instead occur on the earlier of (a) a date during the Marketing Period specified by the Acquiror on no fewer than three (3) Business Days’ notice to the Company and (b) the final day of the Marketing Period (the date on which the Closing takes place being the “ Closing Date ”). Notwithstanding anything to the contrary contained in this Agreement, without the prior consent of the Acquiror, the Closing Date shall not occur prior to the earlier of (i) the second Business Day following the Parent Shareholder Approval and (ii) two Business Days prior to the End Date. For all purposes under this Agreement and each of the Ancillary Agreements, all matters at Closing will be considered to take place simultaneously, no delivery of any document will be deemed complete until all transactions and deliveries of documents are completed, and the Closing will be deemed to have occurred in each jurisdiction applicable to the Business on the Closing Date as of 12:01 a.m. local time, irrespective of the actual occurrence of the Closing at any particular time on the Closing Date.

SECTION 2.6 Purchase Price; Deposit .

(a) At the Closing, the Acquiror shall pay to the Company an aggregate amount in cash equal to $1,675,000,000, plus (1) the amount, if any, by which the Estimated Working Capital exceeds the Target Working Capital, minus (2) the amount, if any, by which the Target Working Capital exceeds the Estimated Working Capital (the net amount derived from the foregoing, the “ Closing Amount ”), by wire transfer of immediately available funds to bank accounts as shall be designated by the Company in writing no later than two (2) Business Days prior to the Closing Date, (as may be adjusted pursuant to Section 2.11 , the “ Purchase Price ”). The amount of any such adjustment pursuant to the foregoing clauses (1) and (2) is hereinafter referred to as the “ Closing Adjustment ”.

(b) As of the date hereof, the Acquiror has deposited, or caused to be deposited, an amount in cash equal to $100,000,000 by wire transfer of immediately available funds (the “ Deposit ”), as collateral and security for the payment of the Closing Amount, into a separate escrow account established pursuant to the terms of an escrow agreement, substantially in the form of attached hereto as Exhibit D (the “ Escrow Agreement ”), among Parent, the Company and Citibank, N.A (the “ Escrow Agent ”), which amount (together with all accrued investment income or interest thereon) shall be released by the Escrow Agent in the following circumstances and in accordance with the Escrow Agreement:

(i) at Closing, the Deposit (together with all accrued investment income or interest thereon) shall be released to the Company and applied to offset and reduce, dollar-for-dollar, the Closing Amount otherwise due at the Closing;

(ii) if all of the conditions set forth in Section 8.1 and Section 8.2 have been and continue to be satisfied or waived (other than those conditions that by their terms are to be satisfied at the Closing and which are capable of being satisfied at the

 

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Closing) and the Acquiror fails to complete the Closing when required pursuant to Section 2.5 and the Company stood ready, willing and able to consummate the Closing then the Deposit (together with all accrued investment income or interest thereon) shall be released to the Company and retained by the Company in full as a credit towards, and not a limitation on, damages (provided that the Deposit shall be applied to the purchase price in any action brought by the Company seeking specific performance pursuant to Section 11.11 );

(iii) if the Acquiror shall have materially failed to comply with any covenant or agreement applicable to the Acquiror set forth in this Agreement so as to cause any of the conditions set forth in Section 8.1 , Section 8.3(b) or Section 8.3(c) not to be capable of being satisfied, and such condition is incapable of being satisfied or cured by the End Date and at such time the Company shall have complied with its obligations under Section 5.4 , then the Deposit (together with all accrued investment income or interest thereon) shall be released to the Company and retained in full by the Company as a credit towards, and not a limitation on, damages (provided that the Deposit shall be applied to the purchase price in any action brought by the Company seeking specific performance pursuant to Section 11.11 );

(iv) if the Agreement is validly terminated pursuant to Section 9.1(a) , then the Deposit (together with all accrued investment income or interest thereon) shall be returned to the Acquiror; or

(v) if the Agreement is validly terminated pursuant to Section 9.1 (other than Section 9.1(a) ), then the Deposit (together with all accrued investment income or interest thereon) shall be released in accordance with Section 2(f) of the Escrow Agreement.

SECTION 2.7 Closing Deliveries by the Company . At the Closing, the Company shall deliver or cause to be delivered to the Acquiror:

(a) the certificate referenced in Section 8.2(a) and Section 8.2(b) ;

(b) a receipt for the Closing Amount;

(c) with respect to each parcel of Business Owned Real Property that is owned by the Company, a duly executed and acknowledged special warranty deed (or local equivalent) or, in the event the Company acquired title to any Business Owned Real Property pursuant to a quit claim deed, a quit claim deed (or local legal equivalent), in each case in proper recordable form and sufficient to vest title in the Acquiror;

(d) duly executed instruments of assignment and assumption of the Business Leased Real Property, executed by the Company or its applicable Subsidiary, in form and substance reasonably satisfactory to the Acquiror;

(e) duly executed counterparts to the Ancillary Agreements contemplated to be delivered pursuant to Section 8.2(c) ;

 

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(f) releases and Uniform Commercial Code termination statements, executed by the appropriate secured party and in a form appropriate for recording or filing, as applicable, that are sufficient to release any Lien against the Shares and any Lien other than Permitted Liens (but specifically excluding any Liens arising from or related to those Liens set forth in Section 1.1(f) of the Disclosure Schedule) against the Transferred Assets and assets of the Transferred Entities, and evidence of payoff and release of Liens pursuant to any mortgages on the Owned Real Property;

(g) such other deeds, bills of sale, endorsements, consents, assignments and other good and sufficient instruments of conveyance and assignment as the parties and their respective counsel shall deem reasonably necessary for the Assumption of the Assumed Liabilities or to vest in the Acquiror all of the Company’s rights, title and interest in and to the Transferred Assets;

(h) a certificate in accordance with Treasury Regulations Section 1.1445-2(b)(2) to the effect that the Company is not a “foreign person”;

(i) a release of all of the Transferred Entities in form and substance reasonably acceptable to Acquiror;

(j) the books, records, minute books and stock ledgers of the Transferred Entities to the extent not located at a Facility, Business Leased Real Property or Business Owned Real Property;

(k) transfer Tax forms (or portions thereof) for Business Owned Real Property and Business Leased Real Property, where applicable, prepared by Acquiror and required to be executed by the transferor, in form and substance reasonably acceptable to Acquiror and the Company; and

(l) certificates representing the Shares, duly endorsed, or accompanied by stock powers duly executed, with all other assignments, deeds, share transfer forms, endorsements or other instruments or documents, duly stamped where necessary, as required by applicable Law.

SECTION 2.8 Closing Deliveries by the Acquiror . At the Closing, the Acquiror shall deliver to the Company:

(a) cash in an aggregate amount equal to the Closing Amount by wire transfer in immediately available funds to an account or accounts as directed by the Company in accordance with Section 2.6 ; provided, that, such Closing Amount shall be offset by the amount released to the Company pursuant to Section 2.6(b)(i) ;

(b) any required transfer Tax stamps;

(c) the certificate referenced in Section 8.3(a) and Section 8.3(b) ;

 

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(d) transfer Tax forms for Business Owned Real Property and Business Leased Real Property, where applicable, and any payments due in accordance with Section 5.9(a) of this Agreement on the Closing Date;

(e) duly executed instruments of assignment and assumption of the Business Leased Real Property, executed by the Acquiror, in form and substance reasonably satisfactory to the Company;

(f) duly executed counterparts to the Ancillary Agreements contemplated to be delivered pursuant to Section 8.3(c) ; and

(g) such other deeds, assumptions and other good and sufficient instruments of conveyance and assumption as the parties and their respective counsel shall deem reasonably necessary for the assumption of the Assumed Liabilities or to vest in the Acquiror all of the Company’s rights, title and interest in, to and under the Transferred Assets.

SECTION 2.9 Adjustment to Purchase Price .

(a) Two (2) Business Days prior to the Closing, the Company shall deliver to the Acquiror a statement setting forth the Company’s good faith estimate of the Working Capital as of 11:59 PM PST on the day immediately preceding the Closing Date (“ Estimated Working Capital ”). The Estimated Working Capital shall be determined using the same accounting methods, policies, practices and procedures, with consistent classifications, judgments and allocation methodology, as were used in preparation of the Form of Working Capital Statement of the Business and shall be in the same form as the Form of Working Capital Statement of the Business. For purposes of calculating Working Capital, whether or not the date as of which Working Capital is required to be calculated hereunder coincides with a fiscal quarter-end or accounting-period end of the Company, Working Capital shall be calculated using the Company’s customary fiscal quarter-end or accounting- period end close procedures for the preparation thereof, including the Company’s procedures with respect to accruals and adjustments.

(b) Within ninety (90) days after the Closing Date, the Company shall prepare and deliver to the Acquiror a statement (the “ Initial Working Capital Statement ”), executed by an officer of the Company, setting forth in reasonable detail the Company’s calculation of Working Capital as of 11:59 PM PST on the day immediately preceding the Closing Date (the “ Closing Working Capital ”) together with the workpapers used in the preparation thereof (which shall include appropriate information and documentation in reasonable detail supporting the Company’s calculations). The Closing Working Capital shall be determined using the same accounting methods, policies, practices and procedures, with consistent classifications, judgments and allocation methodology, as were used in preparation of the Form of Working Capital Statement of the Business and shall be in the same form as the Form of Working Capital Statement of the Business.

 

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(c) During the 30-day period immediately following the Acquiror’s receipt of the Initial Working Capital Statement (the “ Review Period ”), the Acquiror and its Representatives will be permitted to review the Company’s work papers relating to the Initial Working Capital Statement, and the Company shall make available the individuals in its employ responsible for and knowledgeable about the information used in, and the preparation of, the Initial Working Capital Statement, to respond to the reasonable inquiries of the Acquiror.

(d) The Acquiror agrees that, following the Closing through the date that the Final Working Capital Statement becomes final and binding, it will not take any actions with respect to any accounting books, records, policies or procedures on which the Statement of Net Assets or the Initial Working Capital Statement is based or on which the Final Working Capital Statement is to be based that are inconsistent with the past practice of the Business (or the Company with respect to the Business) or that would impede or delay the determination of the amount of Closing Working Capital or the preparation of the Notice of Disagreement or the Final Working Capital Statement in the manner and utilizing the methods required by this Agreement. The Company and the Acquiror acknowledge that the sole purpose of the determination of Working Capital is to adjust the Purchase Price so as to reflect the difference, if any, between the Target Working Capital and the Final Working Capital resulting only from the operation of the Business.

(e) The Acquiror and the Company agree that any adjustments pursuant to this Section 2.9 or Section 2.12 , and any indemnification payment made pursuant to this Agreement, shall be treated as an adjustment of the Purchase Price for Tax purposes, unless otherwise required by applicable Law.

SECTION 2.10 Reconciliation of Post-Closing Statements .

(a) The Acquiror shall notify the Company in writing (the “ Notice of Disagreement ”) prior to the expiration of the Review Period if the Acquiror disagrees with the Initial Working Capital Statement or the Closing Working Capital set forth therein. The Notice of Disagreement shall set forth in reasonable detail the basis for such dispute, including, with respect to any such item in which the Company has allocated an amount between the Business and the other businesses of the Company, why the Acquiror believes that the allocation methodology applied by the Company is not consistent with that used in the preparation of the Form of Working Capital Statement of the Business, the amounts involved and the Acquiror’s determination of the amount of Closing Working Capital. All matters, components, calculations and assumptions in the Initial Working Capital Statement that the Acquiror does not specifically dispute shall not be subject to further review, challenge or adjustment. If no Notice of Disagreement is received by the Company prior to expiration of the Review Period, then the Initial Working Capital Statement shall be deemed to have been accepted by the Acquiror and shall become final and binding upon the parties in accordance with Section 2.10(d) .

(b) During the 30-day period immediately following the delivery of a Notice of Disagreement (the “ Consultation Period ”), the Company and the Acquiror shall seek in good faith to resolve any differences that they may have with respect to the matters specified in the Notice of Disagreement.

(c) If, at the end of the Consultation Period, the Company and the Acquiror have been unable to resolve any differences that they may have with respect to the matters specified in the Notice of Disagreement, the Company and the Acquiror shall submit all matters

 

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that remain in dispute with respect to the Notice of Disagreement (along with a copy of the Initial Working Capital Statement marked to indicate those line items that are not in dispute) to (i) an independent certified public accounting firm in the United States of national recognition mutually acceptable to the Company and the Acquiror (the “ Independent Accounting Firm ”) or (ii) if the Company and the Acquiror are unable to agree upon such a firm within ten (10) Business Days after the end of the Consultation Period, then within an additional ten (10) Business Days, the Company and the Acquiror shall each select one such firm and those two firms shall select a third such firm, in which event “Independent Accounting Firm” shall mean such third firm. The Independent Accounting Firm shall use the same accounting methods, policies, practices and procedures, with consistent classifications, judgments and allocation methodology, as were used in preparation of the Form of Working Capital Statement of the Business in making its determination. The Company and the Acquiror shall use commercially reasonable best efforts to cause the Independent Accounting Firm to reach a determination, solely with respect to the matters specifically disputed in the Notice of Disagreement, not more than 30 days after such referral. Nothing herein shall be construed to authorize or permit the Independent Accounting Firm to resolve or otherwise review any items which are not specifically disputed in the Notice of Disagreement. With respect to each disputed line item, such determination, if not in accordance with the position of either the Company or the Acquiror, shall not be in excess of the amount that results in higher Closing Working Capital, nor less than the amount that results in lower Closing Working Capital, as advocated by the Company in the Initial Working Capital Statement or the Acquiror in the Notice of Disagreement with respect to such disputed line item, respectively. The statement of Closing Working Capital that is final and binding on the parties, as determined either through agreement of the parties pursuant to Section 2.10(a) or Section 2.10(b) or through the action of the Independent Accounting Firm pursuant to this Section 2.10(c) , is referred to as the “ Final Working Capital Statement ” and the Closing Working Capital reflected on such Final Working Capital Statement is referred to as the “ Final Working Capital ”.

(d) The cost of the Independent Accounting Firm’s review and determination shall be shared equally by the Company, on the one hand, and the Acquiror, on the other hand. During the review by the Independent Accounting Firm, the Acquiror and the Company and their respective accountants will each make available to the Independent Accounting Firm interviews with such individuals, and such information, books and records and work papers, as may be reasonably requested by the Independent Accounting Firm to fulfill its obligations under Section 2.10(c) ; provided , however , that the accountants of the Company or the Acquiror shall not be obliged to make any work papers available to the Independent Accounting Firm except in accordance with such accountants’ normal disclosure procedures and then only after the Independent Accounting Firm has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such accountants. In acting under this Agreement, the Independent Accounting Firm will be entitled to the privileges and immunities of an arbitrator.

SECTION 2.11 Tax Withholding . The Acquiror shall be entitled to deduct and withhold from the Purchase Price all Taxes that the Acquiror may be required to deduct and withhold under any provision of Tax Law; provided, however, that if the Company delivers a certificate in accordance with Treasury Regulations Section 1.1445-2(b)(2) to the effect that the Company is not a “foreign person,” the Acquiror shall not be entitled to deduct and withhold from the Purchase Price any Taxes. All such withheld amounts shall be treated as delivered to the Company hereunder.

 

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SECTION 2.12 Post-Closing Adjustment . (i) If the Final Working Capital exceeds the Estimated Working Capital, the Acquiror shall pay the Company the amount of such excess; and (ii) if the Estimated Working Capital exceeds the Final Working Capital, the Company shall pay the Acquiror the amount of such excess. Any amounts owed pursuant to this Section 2.12 (the “ Post-Closing Adjustment ”), together with interest accrued from the Closing Date through the date of payment at an annual rate equal to the prime interest rate as reported by The Wall Street Journal as of the Closing Date, shall be paid in one payment to either the Company or the Acquiror, as the case may be, by wire transfer in immediately available funds to an account specified by the receiving party within three (3) Business Days after the Final Working Capital Statement becomes final, conclusive and binding pursuant to Section 2.10(c) .

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company hereby represents and warrants to the Acquiror, as of the date hereof and as of the Closing Date, that, except as set forth in the Disclosure Schedule delivered by the Company to the Acquiror prior to the execution of this Agreement (the “ Disclosure Schedule ”):

SECTION 3.1 Organization and Qualification . Each of the Company and the Transferred Entities is duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the Laws of its jurisdiction of its organization. Each of the Company and the Transferred Entities (a) has the corporate or other appropriate power and authority to own or lease its properties and to operate the Business as currently owned, leased or operated by the Company or such Transferred Entity and to carry on the Business as currently conducted and (b) is duly qualified or licensed to do business as a foreign corporation in each jurisdiction where the character of its owned, leased or operated properties or the nature of its activities makes such qualification or licensing necessary, except for jurisdictions where the failure to be so qualified or licensed would not have, individually or in the aggregate, a Material Adverse Effect. Copies of the Certificate of Incorporation or By-Laws or similar organizational documents of the Transferred Entities, which reflect all amendments made thereto at any time prior to the date of this Agreement, have been delivered to Acquiror and are correct and complete in all material respects.

SECTION 3.2 Authority of the Company .The Company has all necessary corporate or other power and authority to execute and deliver the Transaction Agreements to which it is a party, to perform its obligations thereunder and to consummate the transactions contemplated thereby. The execution and delivery by the Company of the Transaction Agreements to which it is a party and the consummation by the Company of the transactions contemplated by, and the performance by the Company of its obligations under, the Transaction Agreements have been duly and validly authorized by all requisite action on the part of the Company and no other corporate or other proceedings on the part of the Company is necessary to authorize the Transaction Agreements or to consummate the transactions so contemplated. This

 

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Agreement has been, and upon execution and delivery of the Ancillary Agreements to which it is a party each such Ancillary Agreement will be, duly executed and delivered by the Company, and (assuming due authorization, execution and delivery by the other parties hereto and thereto) this Agreement constitutes, and upon execution and delivery, the Ancillary Agreements will constitute, legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

SECTION 3.3 No Conflict; Required Filings and Consents .

(a) The execution, delivery and performance of the Transaction Agreements by the Company do not and will not (i) conflict with or violate the Certificate of Incorporation or By-Laws or similar organizational documents of the Company or the Transferred Entities, (ii) assuming that all consents, approvals and authorizations contemplated by clauses (i) and (ii) of subsection (b) below have been obtained, and all filings described in such clauses have been made, conflict in any material respect with or violate in any material respect any Law applicable to the Company, the Transferred Entities or the Transferred Assets or (iii) except as set forth in Section 3.3(a)(iii) of the Disclosure Schedule, result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both would become a default) or result in the loss of a benefit under, or give rise to any right of termination, cancellation, amendment or acceleration of, any of the Transferred Assets pursuant to any Contract binding upon any of the Company (with respect to the Transferred Assets) or any license, permit or similar authorization affecting, or relating to, the Transferred Assets, or any Transferred Entity Contract, except, in the case of clause (iii), for any such conflict, violation, breach, default, loss, right or other occurrence which would not, individually or in the aggregate, have a Material Adverse Effect.

(b) The execution, delivery and performance by the Company of the Transaction Agreements to which it is a party and the consummation of the transactions contemplated hereby do not and will not require any consent, approval, authorization or permit of, action by, filing with or notification to, any Governmental Entity, except for (i) the filing of a pre-merger notification and report by the Company under the HSR Act, the Federal Law of Economic Competition and applicable filings or approvals under other non-U.S. antitrust and competition Laws set forth on Section 3.3(b) of the Disclosure Schedule (together with the HSR Act and Federal Law of Economic Competition, the “ Antitrust Laws ”) and (ii) any such consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, have a Material Adverse Effect.

SECTION 3.4 Shares . Section 3.4 of the Disclosure Schedule sets forth an accurate list of the authorized and issued and outstanding shares of capital stock or other equity securities of each of the Transferred Entities. Except as set forth on Section 3.4 of the Disclosure Schedule, all of the Shares have been validly issued and are fully paid and nonassessable and are owned by the Company and/or another Transferred Entity free and clear of all Liens (except for Permitted Liens or Liens created by or through the Acquiror or any of its Affiliates). The Shares constitute all of the outstanding shares of the capital stock of the Transferred Entities. Except as

 

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indicated on Section 3.4 of the Disclosure Schedules, there are no outstanding options, warrants or other rights of any kind relating to the sale, issuance or voting of any equity interests of the Transferred Entities that have been issued, granted or entered into by the Company or any of its Subsidiaries or any securities convertible into or evidencing the right to purchase any equity interests of the Transferred Entities. The Company has as of the date hereof and at all times prior to the Closing will have good and valid title to the Shares and the absolute right to deliver such Shares to Acquiror in accordance with this Agreement.

SECTION 3.5 Financial Information; Absence of Undisclosed Liabilities .

(a) Section 3.5(a) of the Disclosure Schedule contains the audited combined statements of net assets to be sold of the Business as of April 29, 2012 and April 28, 2013 (the “ Statement of Net Assets ”) and combined statements of net sales, cost of products sold and direct operating expenses of the Business for the fiscal years ended April 29, 2012 and April 28, 2013 (the “ Business Financial Statements ”) (the Statement of Net Assets and the Business Financial Statements, collectively, the “ Financial Statements ”). The Financial Statements (i) fairly present, in all material respects, the combined net assets to be sold and the related combined net sales, cost of goods sold and direct operating expenses of the Business as of the respective dates thereof and for the period ending thereon in each case in conformity with GAAP and (ii) have been derived from the general ledger and other financial records of Company which have been maintained in a manner consistent with the Company’s internal controls over financial reporting.

(b) Section 3.5(a) is qualified by the fact that the Business has not operated as a separate independent entity within the Company. As a result, the Business and the Transferred Assets have been allocated certain charges and credits for purposes of the preparation of the Financial Statements. Such allocations of charges and credits do not necessarily reflect the amounts that would have resulted from arms-length transactions or the actual costs that would be incurred if the Business operated as an independent enterprise.

(c) All Liabilities (x) that will be Assumed Liabilities or (y) of the Transferred Entities (1) have been stated or adequately reserved against on the Statement of Net Assets or the notes thereto, (2) have been disclosed in Section 3.5(c) of the Disclosure Schedule, (3) have been incurred after April 28, 2013 (A) in the ordinary course of the Business consistent with past practice or (B) at the prior written request or with the prior written consent of the Acquiror or its Representatives, (4) are Liabilities not required to be disclosed on a balance sheet prepared in accordance with GAAP or in the notes thereto or (5) are Liabilities that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

SECTION 3.6 Absence of Certain Changes or Events . From April 28, 2013 (i) except as contemplated by this Agreement, the Company has conducted the Business in the ordinary course consistent with past practice, and (ii) except as set forth on Section 3.6(ii) of the Disclosure Schedule, there has not occurred any change, impact, event, effect, circumstance and/or development (or combination of the foregoing) that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Acquiror acknowledges that there may be disruption to the operation of the Business as a result of the announcement by the Company of its intention to sell the Business (and there may be further disruption to the Business as a result of the execution of this Agreement (including as a result of the identity of the Acquiror) and the consummation of the transactions contemplated hereby), and Acquiror agrees that any such disruptions do not and shall not constitute a breach of this Section 3.6 .

 

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SECTION 3.7 Absence of Litigation . Except as set forth in Section 3.7 of the Disclosure Schedules, and except as would not, individually or in the aggregate, have a Material Adverse Effect:

(a) there are no Actions or Governmental Orders pending or, to the Knowledge of the Company, threatened against the Company (in respect of the Business, the Transferred Assets or the Assumed Liabilities) or the Transferred Entities; and

(b) the Company and its Subsidiaries are not subject to any order, writ, settlement, injunction, judgment or decree of any court or any Governmental Entity relating to the Business.

SECTION 3.8 Compliance with Laws .

(a) The Company and the Transferred Entities own or possess, and are in compliance with, all material governmental qualifications, registrations, licenses, permits, approvals or authorizations necessary to conduct the Business as currently conducted.

(b) Except as disclosed in Section 3.8 of the Disclosure Schedule and except as would not, individually or in the aggregate, have a Material Adverse Effect (i) with respect to the Business, all governmental qualifications, registrations, licenses, permits, approvals or authorizations necessary to conduct the Business as currently conducted (“ Permits ”) are in full force and effect and no Action is pending, nor to the Knowledge of the Company is threatened, to suspend, revoke, revise, limit, restrict or terminate any of such Permits or declare any such Permit invalid, (ii) with respect to the Business, the Company and the Transferred Entities have filed all necessary reports and maintained and retained all necessary records pertaining to such Permits; and (iii) with respect to the Business, the Company and the Transferred Entities have otherwise complied with all of the Laws, ordinances, regulations and orders applicable to the Business, and the Company has not received any written notice to the contrary.

SECTION 3.9 Sufficiency of the Transferred Assets; Liens .

(a) Assuming receipt of all consents, approvals and authorizations as contemplated by Section 3.3 , the Transferred Assets and the Shares will, taking into account all Ancillary Agreements and Third Party Rights, and subject to Section 2.3 and Section 2.4 , constitute in all material respects all of the assets, rights and properties necessary to conduct the Business as presently conducted on the date of this Agreement; provided , however , that nothing in this Section 3.9(a) shall be deemed to constitute a representation or warranty as to the adequacy of the amounts of cash or working capital.

(b) Except for Permitted Liens or Liens created by or through the Acquiror or any of its Affiliates, the Company has good, valid and marketable title to the Shares and all Transferred Assets (other than the Real Properties, which are the subject of Section 3.14 ), free and clear of all Liens. Each Transferred Entity has good, valid and marketable title to its assets (other than the Real Properties, which are the subject of Section 3.14 ) free and clear of all Liens, except for Permitted Liens.

 

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SECTION 3.10 Intellectual Property . Section 3.10 of the Disclosure Schedules lists all registered and applied for Intellectual Property owned by the Company and the Transferred Entities as of the date hereof that is Related to the Business (the “Registered IP”). Except as set forth in Section 3.10 of the Disclosure Schedules and except as would not, individually or in the aggregate, have a Material Adverse Effect, (i) the Company and the Transferred Entities own, are licensed or have the right to use all Intellectual Property necessary for the operation of the Business as currently conducted (“Business IP”), free and clear of all material Liens, except for Permitted Liens; (ii) the Company and the Transferred Entities are not subject to any pending material Action challenging the validity, enforceability, use or ownership of such Business IP; (iii) to the Knowledge of the Company, the United States Registered IP owned by the Company and the Transferred Entities is valid and subsisting and is not being infringed by others; (iv) to the Knowledge of the Company, the current operation of the Business is not infringing any Intellectual Property owned by third parties; and (v) all maintenance and other fees and all filings necessary to maintain any Registered IP have been paid and/or filed as necessary, as of the date hereof.

SECTION 3.11 Environmental Matters .

(a) Except as set forth on Section 3.11 of the Disclosure Schedules, each of the Company and the Transferred Entities in respect of the Business: (i) is and has been in compliance with all Environmental Laws applicable to the Business; (ii) holds all Environmental Permits required for the current ownership, use and operation of the Business; and (iii) is in compliance with all terms and conditions of such Environmental Permits; except as would not, individually or in the aggregate, have a Material Adverse Effect;

(b) Neither of the Company nor the Transferred Entities in respect of the Business or any other Person, has (i) Released Materials of Environmental Concern at any Real Property or (ii) to the Knowledge of the Company, has Released or arranged for any other Person to Release any Materials of Environmental Concern at any location that would reasonably be expected to result in Liability to the Company or the Transferred Entities under any applicable Environmental Laws, except as would not, individually or in the aggregate, have a Material Adverse Effect;

(c) No claims under Environmental Law are pending or, to the Knowledge of the Company, threatened against the Business, or against the Company or the Transferred Entities in respect of the Business, except as would not, individually or in the aggregate, have a Material Adverse Effect; and

(d) Notwithstanding any other representations and warranties in this Agreement, the representations and warranties in this Section 3.11 are the Company’s only representations and warranties in this Agreement regarding or relating to Environmental Laws, Materials of Environmental Concern or other environmental matters.

 

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SECTION 3.12 Contracts .

(a) Set forth in Section 3.12(a) of the Disclosure Schedule is a list of each agreement or contract or any amendment thereto, which is an Assumed Contract or a Transferred Entity Contract and which is:

(i) with respect to the current or former Business Employees or other service providers of the Company, with respect to the current or former employees or other service providers of the Transferred Entities, an employment or consulting agreement (excluding any such contracts or arrangements for which the total compensation during each of the last two years was less than $100,000 per Person or contracts which are terminable by the Company at will, subject to the notice and severance policies of the Company), or any severance or “change of control” agreement, pursuant to which the Company is currently making or will become obligated to make cash payments;

(ii) a lease or similar agreement under which the Company or any Transferred Entity is lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by a third party at an annual payment in excess of $500,000;

(iii) an agreement or contract primarily related to the Business that involves the obligation of the Company or any Transferred Entity to purchase materials, supplies, equipment or services from others for payment of more than $500,000 and which is not terminable by the Company or such Transferred Entity on less than ninety (90) days’ notice;

(iv) an agreement or contract which deals with the provisions of the Business on a co-packing or repackaging, contracting or subcontracting basis at an annual payment or receipt of payments in excess of $500,000;

(v) an agreement or contract (excluding purchase orders in the ordinary course of the Business and contract manufacturing agreements identified in Section 3.12(a)(iv) ) that involves the obligation of the Company or any Transferred Entity to deliver products or services to third parties for annual payment of more than $1 million and which is not terminable by the Company or such Transferred Entity on less than ninety (90) days’ notice;

(vi) any Contract containing a covenant not to compete that materially impairs the ability of the Company (solely with respect to the Business) or the Transferred Entities to freely conduct the Business as the Business is conducted on the date hereof in any geographic area or any material line of business;

(vii) a Contract of the Company or its Affiliates (other than a Company Contract) that is material to the Business and is not solely related to the Business but also relates to other businesses of the Company (a “ Dividable Contract ”);

(viii) an agreement between the Company or any Transferred Entity, on the one hand, and the Company or any of its Subsidiaries, on the other hand;

(ix) a partnership or joint venture agreement;

 

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(x) an agreement related to material Intellectual Property Related to the Business, other than (x) commercially available, non-exclusive software licenses and (y) Contracts with an annual fee of less than $200,000 (the “ Company IP Agreements ”); and

(xi) an agreement or contract for Indebtedness in excess of $500,000 of a Transferred Entity.

(b) Except as set forth in Section 3.12(b) of the Disclosure Schedule and except as would not, individually or in the aggregate, have a Material Adverse Effect, the Company or any Transferred Entity is not (with or without the lapse of time or the giving of notice, or both) in breach or default under any Assumed Contract or Transferred Entity Contract and, to the Knowledge of the Company, no other party to any such Assumed Contract or Transferred Entity Contract is (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder, except for such breaches or defaults which would not, individually or in the aggregate have a Material Adverse Effect. All of the Assumed Contracts and Transferred Entity Contracts set forth in Section 3.12(a) of the Disclosure Schedule are in full force and effect and are valid and binding obligations of the Company or any Transferred Entity and (to the extent binding obligations of the other parties thereto) enforceable in accordance with their respective terms except to the extent such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other applicable Law relating to or affecting the enforcement of creditors’ rights or by general equitable principles. Except as otherwise indicated on Section 3.12(a) of the Disclosure Schedule, the Company has furnished or made available to the Acquiror true and complete copies of all of the Assumed Contracts and Transferred Entity Contracts set forth in Section 3.12(a) of the Disclosure Schedule.

SECTION 3.13 Company Plans .

(a) Section 3.13(a) of the Disclosure Schedule sets forth a list of each Company Plan, separately identifying each Transferred Entity Plan. To the extent applicable with respect to each Company Plan, true, correct, and complete copies of the most recent documents described below have been delivered to Acquiror (i) IRS determination letter and any outstanding request for a determination letter; (ii) Form 5500 for the three most recent plan years, (iii) all plan documents and amendments, (iv) current summary plan descriptions and summaries of material modifications, and (v) administrative service agreements, related trust agreements, annuity contracts, and other funding instruments.

(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, each Company Plan has been established, operated and administered in all respects in accordance with their terms, ERISA, the Code and all other applicable Law. Each of the Company Plans intended to be “qualified” within the meaning of Section 401(a) of the Code, has received a favorable determination letter from the IRS to the effect that each such Company Plan is so qualified and exempt from tax under Sections 401(a) and 501(a) of the Code, and nothing has occurred that would reasonably be expected to adversely affect such qualification.

 

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(c) Except as set forth in Section 3.13(c) of the Disclosure Schedule, with respect to any multiemployer plan (within the meaning of Section 3(37) of ERISA) to which the Company or the Transferred Entities, or any other entity that would be treated as a single employer with the Company or any Transferred Entity under Section 414 of the Code (“ Commonly Controlled Entity ”), contributes or has any Liability (or has at any time contributed or had an obligation to contribute), no such multiemployer plan is in reorganization or insolvent (as those terms are defined in Sections 4241 and 4245 of ERISA). Neither the Company nor any Transferred Entity nor any Commonly Controlled Entity (i) has completely or partially withdrawal from a multiemployer plan or (ii) has, as of the date of this Agreement, received notice from the sponsor or any multiemployer plan that such multiemployer plan is either in critical or endangered status within the meaning of Code Section 432.

(d) With respect to each Company Plan, (i) neither the Company nor any Transferred Entity nor any Commonly Controlled Entity has any unsatisfied liability under Title IV of ERISA, (ii) to the Knowledge of the Company, no condition exists that presents a material risk to the Company, any Transferred Entity or any Commonly Controlled Entity of incurring any material liability under Title IV of ERISA (other than premiums due to the Pension Benefit Guaranty Corporation (“ PBGC ”), (iii) the PBGC has not instituted proceedings under Section 4042 of ERISA to terminate any Company Plan, (iv) to the Knowledge of the Company, no event has occurred that would be reasonably expected to subject the Company, any Transferred Entity or any Commonly Controlled Entity, by reason of its affiliation with any other Commonly Controlled Entity to any tax, fine, lien, penalty or other liability imposed by ERISA, the Code or other applicable laws, rules, and regulations and (v) all premium payments required to have been made to the PBGC have been paid when due.

(e) Except as set forth in Section 3.13(e) of the Disclosure Schedule, with respect to each Company Plan, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (i) there are no actions by any Governmental Entity with respect to termination proceedings, (ii) there are no claims (except claims for benefits payable in the normal operation of the Company Plans), suits or proceedings against or involving any Company Plan or asserting any rights or claims to benefits under any Company Plan that are pending, or to the Knowledge of the Company, threatened, or in progress, (iii) to the Knowledge of the Company, there are not any facts that could give rise to any liability in the event of any such action, and (iv) no written or oral communication has been received from the PBGC in respect of any Company Plan subject to Title IV of ERISA concerning the funded status of any such plan or any transfer of assets and liabilities from any such plan in connection with the transactions contemplated herein.

(f) With respect to each Company Plan, (i) to the Knowledge of the Company, there has not occurred any prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code), and (ii) there has not occurred a reportable event (as such term is defined in Section 4043 of ERISA).

(g) Except as set forth in Section 3.13(g) of the Disclosure Schedule, no Company Plan exists that, as a result of the execution of this Agreement or the transactions contemplated by this Agreement (whether alone or in connection with any subsequent event(s)), would reasonably be expected to (i) result in the payment of severance or any increase in severance pay, including, without limitation, upon any termination of employment after the date of this Agreement, to any Business Employee or Former Business Employee, (ii) accelerate the

 

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time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or result in any other material obligation pursuant to, any of the Company Plans with respect to any Business Employee or Former Business Employee, or (iii) otherwise result in payments that would not be deductible under Section 280G of the Code.

(h) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, each Company Plan has been documented and operated in a manner that would not trigger adverse tax consequences under Code Section 409A and no Business Employee or Former Business Employee is or has been subject to any tax or penalty under Code Section 409A, and to the Knowledge of the Company no facts exist that would give rise to any such tax or penalty with respect to any Company Plan.

(i) Set forth on Section 3.13(i) of the Disclosure Schedule is a complete list of: all Business Employees; together with the current rate of compensation (if any) payable to each and any paid vacation time owing to such person, any incentive, bonus or deferred payments owing to such persons but not yet paid.

(j) Except as set forth on Section 3.13(j) of the Disclosure Schedule: (i) the Company is not indebted to any Business Employee except for amounts due as normal salaries, wages, employee benefits and bonuses and in reimbursement of ordinary expenses on a basis consistent with past practices; and (ii) no Business Employee is indebted to the Company except for advances for ordinary business expenses on a basis consistent with past practices.

(k) Except as set forth on Section 3.13(k) of the Disclosure Schedule, no employees of the Company are on secondment, maternity, paternity, adoption or other leave or absent due to ill-health or for any reason.

(l) Every employee of the Company who requires authorization from a Governmental Entity to work in such employee’s place of work as at Closing, as set forth on Section 3.13(l) of the Disclosure Schedule, has the necessary immigration documentation or other necessary permission.

(m) Except as set forth on Section 3.13(m) of the Disclosure Schedule, there are no Collective Bargaining Agreements valid and existing between the Company and any collective bargaining unit at the time of this Agreement or on the Closing Date.

SECTION 3.14 Real Property .

(a) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect: (i) the Company and the Transferred Entities have good and marketable fee simple (or the equivalent under applicable Law) title to all Owned Real Property free and clear of all Liens, except for Permitted Liens; (ii) and except as set forth in Section 3.14 (ii) of the Disclosure Schedule, neither the Company nor the Transferred Entities has leased, licensed or otherwise granted any Person the right to use or occupy the Owned Real Property, which lease, license or grant is currently in effect or collaterally assigned, or granted any other security interest in the Owned Real Property which assignment or security interest is currently in effect; (iii) there are no outstanding agreements, options, rights of first offer or rights

 

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of first refusal on the part of any party to purchase any Owned Real Property; (iv) there are not pending or, to the Knowledge of the Company, threatened any condemnation proceedings related to any of the Owned Real Property; and (v) to the Knowledge of the Company, there are not any pending, or threatened, condemnation proceedings related to any of the Leased Real Property.

(b) The Company has furnished or made available to the Acquiror true and complete copies of each Real Estate Lease, to the extent in the possession of or under the control of the Company. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect: (i) each Leased Real Property is a valid and binding obligation on the Company or the Transferred Entities party thereto and, to the Knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Leased Real Property by the Company, any of Transferred Entities or, to the Knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Real Estate Lease by the Company, any of the Transferred Entities or, to the Knowledge of the Company, any other party thereto; and (iv) the Company and each of the Transferred Entities that is either the tenant or licensee named under each Real Estate Lease has a good and valid leasehold interest in each Leased Real Property.

SECTION 3.15 Personal Property .Except as would not have a Material Adverse Effect, the items of material Equipment included in the Transferred Assets and the items of material Equipment owned by the Transferred Entities are in operating condition and good repair, ordinary wear and tear excepted. The Company (a) owns and has good title to all of the material Equipment included in the Transferred Assets purported to be owned by it and (b) has valid and subsisting leasehold interests in all of the material Equipment purported to be leased by it, in each case, free and clear of any Liens other than Permitted Liens. A Transferred Entity (a) owns and has good title to all of the material Equipment purported to be owned by it and (b) has valid and subsisting leasehold interests in all of the material Equipment purported to be leased by it, in each case, free and clear of any Liens other than Permitted Liens.

SECTION 3.16 Brokers . Except for fees and expenses of Morgan Stanley & Co., LLC and Centerview Partners LLC, in connection with their rendering of investment banking advice to the Company and its Affiliates, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission from the Company or any of its Affiliates in connection with the sale of the Business based upon arrangements made by or on behalf of the Company or any of its Affiliates. The Company is solely responsible for the investment advisory fees and expenses of Morgan Stanley & Co., LLC and Centerview Partners LLC.

SECTION 3.17 Taxes . Except as would not, individually or in the aggregate, have a Material Adverse Effect:

(a) The Transferred Entities and their Subsidiaries have duly and timely filed (including pursuant to applicable extensions) all Tax Returns required to be filed by them, and have paid all Taxes shown on such Tax Returns for which payment was due.

 

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(b) No deficiencies for any Taxes have been proposed or assessed in writing against or with respect to any Taxes due by or Tax Returns of the Transferred Entities or any of their Subsidiaries; and there are no Liens for Taxes upon the Transferred Assets, the Shares or the assets of the Transferred Entities or any of their Subsidiaries, except for Permitted Liens for Taxes.

(c) Except as set forth in Section 3.17(c) of the Disclosure Schedule, none of the Transferred Entities or their Subsidiaries is or has ever been a member of an affiliated group (other than a group of which it is currently a member) filing a consolidated Tax Return.

(d) All Taxes required to be withheld, collected or deposited by or with respect to the Transferred Entities and each of their Subsidiaries have been timely withheld, collected or deposited as the case may be, and to the extent required, have been paid to the relevant taxing authority.

(e) None of the Transferred Entities or any of their Subsidiaries is a party to, is bound by or has any obligation under any Tax sharing or Tax indemnity agreement or similar contract or arrangement that obligates it to make any payment computed by reference to the taxes, taxable income or taxable losses of any other person (other than any loan agreements or any other such contracts entered into in the ordinary course of business).

(f) None of the Transferred Entities or their Subsidiaries is or has been a party to any “listed transaction,” as defined in Code Section 6707A(c)(2) and Reg. Section 1.6011-4(b)(2).

SECTION 3.18 FCPA and Certain Other Regulatory Compliance .

(a) The Company (with respect to the Business) and, to Company’s Knowledge, the Transferred Entities and each director, officer, employee, agent or distributor of the Transferred Entities and the Company (with respect to the Business), have, for the past three years, been in material compliance with the Foreign Corrupt Practices Act, 15 U.S.C. 78dd et seq (“ FCPA ”) and all other applicable anti-corruption Laws. The Company maintains a system of internal accounting controls (as applied to the Transferred Entities), and the books and records of the Transferred Entities are maintained, pursuant to the requirements of 15 U.S.C. 78m(b)(2).

(b) The Company (with respect to the Business) and, to the Company’s Knowledge, the Transferred Entities have, for the past three years, been in material compliance with (i) all applicable international trade Laws (including, to the extent applicable, the U.S. Export Administration Regulations (“ EAR ”) and the regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Control), and (ii) to the extent applicable, the EAR concerning Restrictive Trade Practices or Boycotts (i.e., Part 760 of the EAR) (“ Anti-Boycott Regulations ”).

(c) The Company (with respect to the Business) and, to the Company’s Knowledge, the Transferred Entities have, for the past three years, been in material compliance with all applicable Laws related to economic sanctions (including, to the extent applicable, U.S. economic sanctions implemented (unilaterally or multilaterally) under statutory authority or presidential Executive Order for, among others, foreign policy reasons and involving, inter alia, the blocking of assets and the prohibition on commerce, including trade and investment (collectively, “ U.S. Economic Sanctions ”).

 

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(d) The Company (with respect to the Business) and, to the Company’s Knowledge, the Transferred Entities have, for the past three years, been in material compliance with all applicable Laws related to customs procedures (“ Customs Laws ”) (including, to the extent applicable, the filing of any export or import declaration, the payment of customs duties lawfully owed, compliance with import quotas, import registration or any other similar requirements related to the exportation or importation of goods or services by the Business).

(e) None of the Company (with respect to the Business) or, to the Company’s Knowledge, the Transferred Entities have, for the past three years, made any voluntary disclosure with respect to a possible material violation of the EAR, U.S. Economic Sanctions, Anti-Boycott Regulations, or Customs Laws to any Governmental Entity that remains unresolved.

(f) There is no Action by any Governmental Entity with respect to a material violation of any applicable international trade Laws described in this Section 3.18 (including the EAR, U.S. Economic Sanctions, Anti-Boycott Regulations, or Customs Laws), that is now pending or, to the Knowledge of the Company, asserted or threatened against the Transferred Entities or the Company (with respect to the Business).

(g) The Company (with respect to the Business) and, to Company’s Knowledge, the Transferred Entities and each of their officers, directors, employees or agents, have, for the past three years, been in material compliance with all applicable Laws related to the preparation and sale of food to customers (“ Applicable Food Safety Laws ”). With respect to Applicable Food Safety Laws none of the Company (with respect to the Business), or, to the Company’s Knowledge, the Transferred Entities have, for the past three years, (i) been excluded, debarred or suspended from participation under any government food safety program; (ii) been (or currently is) subject to a corporate integrity agreement, deferred prosecution agreement, consent decree, settlement agreement or similar agreements or orders mandating or prohibiting future or past activities; or (iii) to the Company’s Knowledge, been under investigation by, disclosed to, or settled with, any Governmental Entity, any Applicable Food Safety Law violations or related issues.

SECTION 3.19 Venezuelan Operations . As of the date hereof, neither the Company nor any Transferred Entity has received any (i) notice of any expropriation or potential expropriation of material assets of the Company or any Transferred Entity located in Venezuela, or (ii) notice of any material violation of Venezuelan Law.

SECTION 3.20 Insurance . Section 3.20(a) of the Disclosure Schedule sets forth a list, true and complete in all material respects, of all policies or certificates of insurance and all performance bonds, surety bonds and similar instruments held by or on behalf of the Company and the Transferred Entities covering the Transferred Assets, the assets of the Transferred Entities or the operations of the Business, the risk insured against, the deductible amount (if any) and the date through which coverage will continue by virtue of premiums already paid. Except as set forth in Section 3.20(b) of the Disclosure Schedule, as of the date

 

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hereof there is no material claim pending under any such policy as to which coverage has been questioned, denied or disputed by the underwriters of such policy. Neither the Company nor any of the Transferred Entities is in material default with respect to any provision contained in any such policy or binder. Neither the Company nor any of the Transferred Entities has received or given a notice of cancellation or non-renewal with respect to any such policy and no insurer under any such policy has generally disclaimed liability thereunder or indicated in writing any intent to cancel or not renew any such policy or generally disclaim liability thereunder.

SECTION 3.21 No Other Representations or Warranties . EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS ARTICLE III (AS MODIFIED BY THE DISCLOSURE SCHEDULE) AND IN THE ANCILLARY AGREEMENTS, NEITHER THE COMPANY NOR ANY OTHER PERSON MAKES ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPANY OR THE TRANSFERRED ENTITIES, THE PROBABLE SUCCESS OR PROFITABILITY OF THE BUSINESS, THE SHARES, THE TRANSFERRED ASSETS, THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE ASSUMED LIABILITIES AND ANY OTHER RIGHTS OR OBLIGATIONS TO BE TRANSFERRED HEREUNDER OR PURSUANT HERETO, AND THE COMPANY DISCLAIMS ANY OTHER REPRESENTATIONS, WARRANTIES, FORECASTS, PROJECTIONS, STATEMENTS OR INFORMATION, WHETHER MADE BY THE COMPANY, ANY OF THE TRANSFERRED ENTITIES OR ANY OF ITS OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE ACQUIROR

The Acquiror hereby represents and warrants to the Company as of the date hereof and as of the Closing Date that:

SECTION 4.1 Organization and Qualification of the Acquiror . The Acquiror is duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the Laws of its jurisdiction of organization and has all requisite corporate or similar power and authority to enter into, consummate the transactions contemplated by, and carry out its obligations under, the Transaction Agreements. The Acquiror (a) has the corporate or other appropriate power and authority to own, lease its properties and to operate its business as currently owned, leased or operated and to carry on its business as currently conducted and (b) is duly qualified or licensed to do business as a foreign corporation in each jurisdiction where the character of its owned, leased or operated properties or the nature of its activities makes such qualification or licensing necessary, except for jurisdictions where the failure to be so qualified or licensed would not impair or delay the ability of the Acquiror to consummate the transactions contemplated by, or perform its obligations under, the Transaction Agreements.

SECTION 4.2 Authority of the Acquiror . The execution and delivery of the Transaction Agreements by the Acquiror, the consummation by the Acquiror of the transactions contemplated by, and the performance by the Acquiror of its obligations under, the Transaction

 

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Agreements have been duly authorized by all requisite corporate or other appropriate action on the part of the Acquiror. This Agreement has been, and upon execution and delivery the Ancillary Agreements will be, duly executed and delivered by the Acquiror, and (assuming due authorization, execution and delivery by the Company) this Agreement constitutes, and upon execution and delivery by the other parties thereto the Ancillary Agreements will constitute, legal, valid and binding obligations of the Acquiror, enforceable against the Acquiror in accordance with their respective terms, subject to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

SECTION 4.3 No Conflict; Required Filings and Consents .

(a) The execution, delivery and performance of the Transaction Agreements by the Acquiror do not and will not (i) conflict with or violate the Certificate of Incorporation or By-laws or other organizational documents of the Acquiror, (ii) assuming that all consents, approvals and authorizations contemplated by clauses (i) and (ii) of subsection (b) below have been obtained, and all filings described in such clauses have been made, conflict with or violate any law, rule, regulation, order, judgment or decree applicable to the Acquiror or by which any of its properties are bound or (iii) result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both would become a default) or result in the loss of a benefit under, or give rise to any right of termination, cancellation, amendment or acceleration of, any Contracts binding upon the Acquiror or any license, permit or similar authorization affecting, or relating to, the assets, properties or business of the Acquiror, except, in the case of clauses (ii) and (iii), for any such conflict, violation, breach, default, acceleration, loss, right or other occurrence which would not prevent or materially delay the consummation of the transactions contemplated hereby.

(b) The execution, delivery and performance of the Transaction Agreements by the Acquiror and the consummation of the transactions contemplated hereby by the Acquiror do not and will not require any consent, approval, authorization or permit of, action by, filing with or notification to, any Governmental Entity, except for (i) the filing of a pre-merger notification and report by the Company under the HSR Act, the Federal Law of Economic Competition and applicable filings or approvals under other Antitrust Laws, and (ii) any such consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not prevent or materially delay the consummation of the transactions contemplated hereby.

(c) The affirmative vote of holders of a majority of all of the outstanding voting shares of Parent after receipt of a notice and circular duly approved by the Singapore Stock Exchange (the “ Parent Shareholder Approval ”) is the only vote of holders of any class or series of capital stock of the Parent or Acquiror necessary to approve this Agreement and transactions contemplated hereby. NutriAsia Pacific Limited, which as of the date hereof holds approximately sixty-seven percent (67%) of the outstanding voting shares of Parent, has agreed to vote all shares held by it in favor of the approval by Parent’s shareholders of this Agreement, and the transactions contemplated hereby.

 

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SECTION 4.4 Absence of Restraints; Compliance with Laws . (a) To the best knowledge of the Acquiror, as of the date hereof, there exist no facts or circumstances that would reasonably be expected to impair or delay the ability of the Acquiror to consummate the transactions contemplated by, or to perform its obligations under, the Transaction Agreements.

(b) The Acquiror is not in violation of any Laws or Governmental Orders applicable to it or by which any of its material assets is bound or affected and there are no Actions pending or threatened, except for violations or Actions the existence of which would not reasonably be expected to impair or delay the ability of the Acquiror to consummate the transactions contemplated by, or to perform its obligations under, the Transaction Agreements.

SECTION 4.5 Financial Ability . Acquiror has cash available, existing committed borrowing facilities and existing equity commitments and debt commitments which are sufficient to enable it to consummate the transactions contemplated by the Transaction Documents, including payment of the Purchase Price. The Acquiror has delivered accurate and complete copies of all such existing committed borrowing facilities, equity commitments and debt commitments (the “ Financing Commitments ”) evidencing Acquiror’s possession of or access to sufficient funds for the consummation of the transactions contemplated by the Transaction Agreements. The Financing Commitments are in full force and effect, enforceable in accordance with their terms, duly authorized by the Acquiror and to the Acquiror’s knowledge, the other parties thereto and have not been amended, modified or supplemented in any manner. Each of Acquiror’s obligations set forth in the Transaction Agreements are not contingent or conditioned upon any Person’s ability to obtain or have at Closing sufficient funds necessary for the payment of the entire Purchase Price in cash or for Acquiror to perform its respective obligations with respect to the transactions contemplated by the Transaction Agreements.

SECTION 4.6 Brokers . Except for Perella Weinberg Partners (the “ Acquiror’s Banker ”), no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Acquiror. The Acquiror is solely responsible for the fees and expenses of the Acquiror’s Banker.

SECTION 4.7 Purchase for Investment . Acquiror is aware that the Shares are not registered under the Securities Act of 1933, as amended (the “ Securities Act ”), or under any state or foreign securities laws. Acquiror is not an underwriter, as such term is defined under the Securities Act, and is purchasing the Shares solely for investment, with no present intention to distribute the Shares to any Person, and Acquiror will not sell or otherwise dispose of the Shares except in compliance with the registration requirements or exemption provisions under the Securities Act and the rules and regulations promulgated thereunder, or any other applicable securities laws.

SECTION 4.8 Investigation . THE ACQUIROR ACKNOWLEDGES AND AGREES THAT IT HAS MADE ITS OWN INQUIRY AND INVESTIGATION INTO, AND, BASED THEREON, HAS FORMED AN INDEPENDENT JUDGMENT CONCERNING, THE COMPANY, THE TRANSFERRED ENTITIES, THE TRANSFERRED ASSETS, THE BUSINESS AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE

 

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ASSUMED LIABILITIES AND ANY OTHER ASSET, RIGHTS OR OBLIGATIONS TO BE TRANSFERRED HEREUNDER OR PURSUANT HERETO. THE ACQUIROR FURTHER ACKNOWLEDGES AND AGREES THAT (I) THE ONLY REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS MADE BY THE COMPANY ARE THE REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS MADE IN THIS AGREEMENT AND THE ANCILLARY AGREEMENTS AND THE ACQUIROR HAS NOT RELIED UPON ANY OTHER REPRESENTATIONS OR OTHER INFORMATION MADE OR SUPPLIED BY OR ON BEHALF OF THE COMPANY OR BY ANY AFFILIATE OR REPRESENTATIVE OF THE COMPANY, INCLUDING ANY INFORMATION PROVIDED BY OR THROUGH MORGAN STANLEY & CO., LLC OR CENTERVIEW PARTNERS LLC, OR MANAGEMENT PRESENTATIONS, DATA ROOMS OR OTHER DUE DILIGENCE INFORMATION AND THAT THE ACQUIROR WILL NOT HAVE ANY RIGHT OR REMEDY ARISING OUT OF ANY SUCH OTHER REPRESENTATION OR OTHER INFORMATION, (II) ANY CLAIMS THE ACQUIROR MAY HAVE FOR BREACH OF REPRESENTATION OR WARRANTY UNDER THIS AGREEMENT SHALL BE BASED SOLELY ON THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY SET FORTH IN ARTICLE III HEREOF (AS MODIFIED BY THE DISCLOSURE SCHEDULE) AND (III) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN THE ANCILLARY AGREEMENTS, THE ACQUIROR SHALL ACQUIRE THE TRANSFERRED ENTITIES, THE TRANSFERRED ASSETS, THE BUSINESS AND THE ASSUMED LIABILITIES WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE, IN “AS-IS” CONDITION AND ON A “WHERE-IS” BASIS. THE ACQUIROR FURTHER ACKNOWLEDGES AND AGREES THAT THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO, AND THAT THE ACQUIROR WILL NOT HAVE ANY RIGHT OR REMEDY ARISING OUT OF ANY LOSSES RELATING TO OR RESULTING FROM, THE ACQUIROR’S BUSINESS OR ANY AGREEMENTS OR OTHER RELATIONSHIPS BETWEEN THE COMPANY AND ITS AFFILIATES AND THE ACQUIROR AND ITS AFFILIATES.

ARTICLE V

ADDITIONAL AGREEMENTS

SECTION 5.1 Conduct of Business Prior to the Closing . Unless otherwise consented to by the Acquiror, which consent shall not be unreasonably withheld or delayed, or as otherwise contemplated by this Agreement (or as set forth in Section 5.1 of the Disclosure Schedule) or unless required by Law, from the date of this Agreement until the earlier of the Closing and the termination of this Agreement (the “ Pre-Closing Period ”) the Company shall, and shall cause the Transferred Entities to, (i) conduct the Business in all material respects in the ordinary course consistent with past practice and (ii) use all commercially reasonable efforts to maintain and preserve intact the Business and to maintain satisfactory relationships with suppliers, customers, distributors, key employees and other Persons having material business relationships with the Business. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement (or as set forth in Section 5.1 of the Disclosure Schedule) or unless required by Law, during the Pre-Closing Period, the Company shall not, and shall cause the Transferred Entities not to, in connection with the Business, without the prior written consent of the Acquiror, not to be unreasonably withheld, conditioned or delayed:

 

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(i) enter into any new line of business or launch any new product line;

(ii) except in the ordinary course of business consistent with past practice, grant any Lien (other than granting or suffering to exist a Permitted Lien) on any material Transferred Assets or any material assets of the Transferred Entities (whether tangible or intangible);

(iii) sell, assign, transfer, lease, sublease, license, abandon, fail to maintain, pledge, encumber or otherwise dispose of any Transferred Assets or any assets of the Transferred Entities, other than sales of Inventory or immaterial assets in the ordinary course of business consistent with past practice;

(iv) except in the ordinary course of business consistent with past practices or as may be required under any Company Plan set forth in Section 3.13(a) of the Disclosure Schedule or Collective Bargaining Agreement as set forth in Section 3.13(m) of the Disclosure Schedule or by applicable Law, or to the extent the Company shall be responsible for any associated cost, (A) increase the compensation or benefits of any of its Business Employees, (B) grant any severance or termination pay not provided for under any Company Plan set forth in Section 3.13(a) of the Disclosure Schedule to any of its Business Employees or Former Business Employees, (C) enter into or amend any employment, consulting or severance agreement or arrangement with any of its Business Employees, or (D) establish, adopt, enter into or amend in any material respect or terminate any material Company Plan in which any of its Business Employees participate;

(v) make any material change in any method of accounting or accounting practice or policy used by the Business in the preparation of the Financial Statements, other than such changes as are required by applicable Law or generally accepted accounting principles with respect to the Company or otherwise applying generally to the Company;

(vi) enter into any settlement or release with respect to any material Action relating to the Business, unless such settlement or release contemplates only the payment of money without ongoing limits on the conduct or operation of the Business and results in a full release of such claim;

(vii) make any change in the key management structure of the Business, including the hiring of senior managerial personnel, the termination of any senior managerial personnel or transfer of senior managerial personnel out of the Business;

(viii) except in the ordinary course of business consistent with past practice, enter into any new lease (whether as lessor or lessee) of any real property or enter into, or amend, terminate or waive any right under, any Assumed Contract, Transferred Entity Contract or Real Estate Lease;

 

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(ix) fail to keep current and in full force and effect or renew any material Permits;

(x) other than on an arm’s length basis in the ordinary course of business consistent with past practice, enter into any transactions or Contracts with Affiliates that would be binding on the Business, Transferred Entities, Transferred Assets or Assumed Liabilities after the Closing;

(xi) with respect to the Transferred Entities, amend the Certificate of Incorporation or By-Laws or similar organizational documents of such Transferred Entities, or issue or agree to issue any additional shares of capital stock of any class or series, or any securities convertible into or exchangeable for shares of capital stock, or issue any options, warrants or other rights to acquire any shares of capital stock of such Transferred Entities;

(xii) with respect to the Transferred Entities, issue or authorize the issuance of any equity interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain any equity interests or issue, sell or otherwise dispose of any equity interests of the Transferred Entities;

(xiii) issue or incur, or enter into any agreement to issue or incur, any Indebtedness with respect to the Transferred Entities;

(xiv) authorize, commit or agree to take any of the foregoing actions;

(xv) enter into any agreement or commitment of the Company with respect to the Business or the Transferred Entities not to compete, or not to conduct business, in any line of business or in any geographic territory; or

(xvi) engage in any trade loading, including sales of Products (i) with payment terms materially longer than terms customarily offered by the Business for such Product, (ii) at a materially greater discount from listed prices than customarily offered by the Business for such Products, other than pursuant to a promotion of a nature previously used in the normal course of business in connection with the Business for such Products, (iii) with shipment terms materially more favorable to the customer than shipment terms customarily offered by the Business for such Products, (iv) in a quantity materially greater than the reasonable retail or wholesale (as the case may be) resale requirement of the particular customer, (v) pursuant to trade promotions not in the ordinary course of business consistent with past practice or (vi) in conjunction with other benefits to the customer not in the ordinary course of business consistent with past practice with such customer.

SECTION 5.2 Forbearances of the Acquiror . From the date hereof until the earlier of the Closing and the termination of this Agreement, except as expressly contemplated by this Agreement, without the prior written consent of the other party to this Agreement, neither party to this Agreement shall, and each party to this Agreement shall use its reasonable best efforts to cause its controlled Affiliates not to, take or agree to take any action which is intended to or which would reasonably be expected to materially adversely affect or materially delay the

 

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ability of such party to obtain any necessary approvals of any regulatory agency or other Governmental Entity required for the transactions contemplated hereby, performing its covenants and agreements under this Agreement or consummating the transactions contemplated hereby or otherwise materially delay or prohibit consummation of the transactions contemplated hereby.

SECTION 5.3 Access to Books and Records; Confidentiality .

(a) During the Pre-Closing Period, the Company shall, and shall cause the Transferred Entities to, afford to the Acquiror and its Representatives, reasonable access during normal business hours to the management, accountants and other advisors and agents, properties, books, records and Contracts of the Business; provided that such access does not interfere with the normal business operations of the Company or the Transferred Entities or include any invasive or destructive environmental sampling or testing. The parties agree that the provisions of the Confidentiality Agreement, dated July 3, 2013, between the Company and Del Monte Pacific Limited (the “ Confidentiality Agreement ”) shall continue in full force and effect following the execution and delivery of this Agreement, and all information obtained pursuant to this Section 5.3(a) or otherwise concerning the Transferred Entities, the Company and/or the Business furnished to the Acquiror in connection with the transactions contemplated by the Transaction Agreements shall be kept confidential in accordance with the Confidentiality Agreement. Notwithstanding the foregoing, the Company is not under any obligation to disclose to the Acquiror any information the disclosure of which is restricted by contract or Law or which would result in the waiver of any privileges.

(b) From and after the Closing, the Company shall treat and hold as confidential any material information used in or related to the Business (such information, the “ Confidential Information ”) and refrain from using any of the Confidential Information except in connection with this Agreement or the Ancillary Agreements, or as may otherwise be required by Law, in connection with any dispute with third parties or any defense or prosecution of legal proceedings, financial reporting, Tax or accounting matters or otherwise as necessary for the operation of the Company’s business following the Closing.

SECTION 5.4 Further Action; Efforts .

(a) Subject to the terms and conditions of this Agreement, each of the Company and the Acquiror agrees to use its reasonable best efforts to consummate the transactions contemplated hereby as soon as practicable after the date hereof. Subject to the terms and conditions of this Agreement, without limiting the foregoing, (i) each of the Company and the Acquiror agrees to use its reasonable best efforts to take, or cause to be taken, all actions necessary to comply promptly with all legal requirements under applicable Law that may be imposed on itself with respect to the transactions contemplated hereby (which actions shall include furnishing all information requested in connection with approvals of or filings with any Person or other Governmental Entity) and shall promptly cooperate with and furnish information to each other in connection with any such requests to any of them or any of their Affiliates in connection with the transactions contemplated hereby and (ii) each of the Company and the Acquiror shall use its reasonable best efforts to obtain (and shall cooperate with each other in obtaining) any consent, authorization, order or approval of, or any exemption by, any Governmental Entity required or advisable to be obtained or made by the Company or the

 

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Acquiror or any of their Affiliates in connection with the transactions contemplated by this Agreement. Subject to the terms and conditions set forth in this Agreement, each of the Company and the Acquiror agrees to make all appropriate filings, notices and registrations with any Governmental Entity with respect to the transactions contemplated hereby as promptly as practicable after the date of this Agreement in order to obtain any consent, authorization, order or approval of, or any exemption by, any Governmental Entity required or advisable to be obtained or made by the Company or the Acquiror or any of their Affiliates in connection with the taking of any action contemplated thereby or by this Agreement. In furtherance and not in limitation of the foregoing, each party hereto agrees to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and an appropriate filing pursuant to the Federal Law of Economic Competition with respect to the transactions contemplated hereby as promptly as practicable (and in any event in the case of the filing pursuant to (A) the HSR Act, within ten (10) Business Days of the date hereof and (B) the Federal Law of Economic Competition, within fifteen (15) Business Days of the date hereof) and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and the Federal Law of Economic Competition and to take all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act and the Federal Law of Economic Competition as soon as practicable. Without limiting the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period provided for in the HSR Act.

(b) Subject to the terms and conditions set forth in this Agreement, without limiting the generality of the undertakings referenced in Section 5.4(a) , each of the Company (in the case of clauses (i) and (iii) of this Section 5.4(b) ) and the Acquiror (in all cases set forth below) agree to take or cause to be taken the following actions:

(i) (1) the prompt provision to each and every Governmental Entity with jurisdiction over enforcement of any applicable antitrust or competition laws (“ Government Antitrust Entity ”) of non-privileged information and documents as defined under applicable Law requested by any Government Antitrust Entity or that are necessary, proper or advisable to permit the consummation of the transactions contemplated by this Agreement and (2) the prompt filing with the applicable Government Antitrust Entity of all appropriate notices and reports required under applicable Antitrust Laws with respect to the transactions contemplated by this Agreement;

(ii) the prompt use of its reasonable best efforts to avoid the entry of any permanent, preliminary or temporary injunction or other order, decree, decision, determination or judgment that would delay, restrain, prevent, enjoin or otherwise prohibit the consummation of the transactions contemplated by this Agreement, including the proffer and agreement by the Acquiror of its willingness to sell or otherwise dispose of, or hold separate pending such disposition, and promptly to effect the sale, liquidation, disposal and holding separate of, such assets, categories of assets or businesses or other segments of the Business or the Acquiror or the Acquiror’s subsidiaries (and the entry into agreements with, and submission to orders of, the relevant Government Antitrust Entity giving effect thereto), in each case conditioned upon the consummation of the transactions contemplated hereby if such action should be reasonably necessary or

 

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advisable to avoid, prevent, eliminate or remove the actual, anticipated or threatened (x) commencement of any proceeding in any forum or (y) issuance of any permanent, preliminary or temporary injunction or other order, decree, decision, determination or judgment that would delay, restrain, prevent, enjoin or otherwise prohibit the consummation of the transactions contemplated hereby by any Government Antitrust Entity; and

(iii) the prompt use of its reasonable best efforts to take, in the event that any permanent, preliminary or temporary injunction, decision, order, judgment, determination or decree is entered or issued, or becomes reasonably foreseeable to be entered or issued, in any proceeding, review or inquiry of any kind that would make the consummation of the transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would delay, restrain, prevent, enjoin or otherwise prohibit the consummation of the transactions contemplated hereby, any and all steps (including, the appeal thereof, the posting of a bond or the taking of the steps contemplated by clause (ii) of this Section 5.4(b) ) necessary to resist, vacate, modify, reverse, suspend, prevent, eliminate, avoid or remove such actual, anticipated or threatened injunction, decision, order, judgment, determination or decree so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement.

(c) Each party to this Agreement shall promptly notify the other party of any communication it receives from any Governmental Entity relating to the matters that are the subject of this Agreement, shall permit the other party to review in advance any proposed communication by such party to any Governmental Entity, and shall provide each other with copies of all correspondence, filings or communications between them or any of their Affiliates, on the one hand, and any Governmental Entity or members of its staff, on the other hand, subject to this Section 5.4 . No party to this Agreement shall agree to participate in any meeting with any Governmental Entity in respect of any such filings, investigation or other inquiry unless it consults with the other parties in advance and, to the extent permitted by such Governmental Entity, gives the other parties the opportunity to attend and participate at such meeting. Subject to the Confidentiality Agreement, Section 5.3(b) and to this Section 5.4(c) and compliance with applicable Law, the parties to this Agreement will coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other parties may reasonably request in connection with the foregoing.

SECTION 5.5 Third Party Consents . The Company shall use commercially reasonable efforts to obtain any consent of any Person (other than Governmental Entities) required to consummate and make effective the transactions contemplated by this Agreement. The Acquiror agrees to cooperate reasonably with the Company in obtaining such consents. To the extent that the Acquiror and the Company are unable to obtain any required third party consents prior to the Closing (such consents, the “ Post-Closing Consents ”), each of the Acquiror and the Company, respectively, shall use commercially reasonable efforts to make or obtain (or cause to be made or obtained) as promptly as practicable all Post-Closing Consents. For purposes of this Section 5.5 , the term “commercially reasonable efforts” shall not be deemed to require any Person to pay or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any consent or waiver may be required.

 

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SECTION 5.6 Contact with Customers and Suppliers . During the Pre-Closing Period, the Company and the Acquiror shall cooperate in communicating with the customers, suppliers and licensors of the Business concerning the transactions contemplated hereby, including the Acquiror’s intentions concerning the operation of the Business following the Closing. During the Pre-Closing Period, the Acquiror and its Representatives shall contact or communicate with the customers, suppliers and licensors of the Business in connection with the transactions contemplated hereby only with the prior written consent of the Company, which shall not be unreasonably withheld and may be conditioned upon a designee of the Company being present at any meeting or conference; provided that upon prior written notice to the Company (and after coordinating with the Company in good faith any initial communication to such Persons), the Acquiror and its Representatives shall be permitted to contact and communicate with certain customers and suppliers of the Business to be mutually agreed by the parties. For the avoidance of doubt, nothing in this Section 5.6 shall prohibit the Acquiror from contacting the customers, suppliers and licensors of the Business in the ordinary course of the Acquiror’s businesses for the purpose of selling products of the Acquiror’s businesses or for any other purpose unrelated to the Business and the transactions contemplated by this Agreement.

SECTION 5.7 Non-Competition; Non-Hire .

(a) Restrictions on Competing Activities Following Closing:

(i) The Company shall not, and shall cause its Subsidiaries not to, for a period of two years following the Closing Date, establish or acquire any new businesses within the Business Territory that involve the manufacture, distribution or sale for human consumption of a Competing Product, nor directly or indirectly engage in, invest, manage, operate, lend funds to or provide consulting, manufacturing or co-packing services to any person engaged in the manufacture, distribution or sale for human consumption of a Competing Product, (the “ Competing Activities ”). Notwithstanding the foregoing, the Company and each of its Subsidiaries shall be permitted to (A) continue to conduct their current businesses and extensions thereof (other than the Competing Activities); (B) acquire and own interests of any Person engaged in Competitive Activities, so long as such interests do not represent twenty percent (20%) or more of such Person’s voting securities; (C) acquire, own and operate, or otherwise invest in, a Person that engages in Competing Activities (so long as the portion of the revenue of such Person derived solely from Competing Activities does not account for more than fifteen percent (15%) of the consolidated revenue of the Company during its most recently completed fiscal year); or (D) be acquired by one or more entities that own(s) a business that competes with the Business.

(ii) The parties mutually agree that this Section 5.7 is reasonable and necessary to protect and preserve the Company’s and the Acquiror’s legitimate business interests and the value of the Business, the Shares, the Transferred Assets and the Company’s other businesses, and to prevent any unfair advantage conferred on any party and their respective successors.

 

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(b) The Company agrees not to (x) for a period of three (3) years following the Closing Date for employees who are, immediately prior to the Closing, at the director level or above or (y) for a period of two (2) years following the Closing Date for all other employees, directly or indirectly hire or solicit for hire any salaried Transferred Employee who accepts the Acquiror’s offer of employment or who remains an employee of a Transferred Entity following the Closing for so long as such individual is employed by the Acquiror or any Affiliate of Acquiror; provided, however, that the Company and its Subsidiaries shall not be prohibited from soliciting or hiring any such individual who contacts the Company or any Subsidiary in response to any general solicitation or advertising not specifically directed at any such individual or group of individuals.

(c) The Acquiror agrees not to (x) for a period of three (3) years following the Closing Date for employees who are, immediately prior to the Closing, at the director level or above or (y) for a period of two (2) years following the Closing Date for all other employees, directly or indirectly hire or solicit for hire any employee of the Company or its Subsidiaries (excluding Transferred Employees); provided , however , that the Acquiror and its Subsidiaries shall not be prohibited from soliciting or hiring any such individual who contacts the Acquiror or any Subsidiary in response to any general solicitation or advertising not specifically directed at any such individual or group of individuals.

(d) If a final judgment of a court or tribunal of competent jurisdiction determines that any term or provision contained in this Section 5.7 is invalid or unenforceable, then the parties agree that the court or tribunal will have the power (but without affecting the right of the Company or the Acquiror to obtain the relief provided for in this Section 5.7 in any jurisdiction other than such court’s or tribunal’s jurisdiction) to reduce the scope, duration or geographic area of the term or provision, to delete specific words or phrases or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision. To the extent it may effectively do so under applicable Law, each of the Company and the Acquiror hereby waives on its own behalf and on behalf of its successors, any provision of Law which renders any provision of this Section 5.7 invalid, void or unenforceable in any respect.

(e) Each of the Company and the Acquiror acknowledges and agrees that the remedies at law for any breach of the requirements of this Section 5.7 would be inadequate, and agrees and consents that without intending to limit any additional remedies that may be available, temporary and permanent injunctive and other equitable relief may be granted without proof of actual damage or inadequacy of legal remedy, in any proceeding which may be brought to enforce any of the provisions of this Section 5.7 .

SECTION 5.8 Credit and Performance Support Obligations . The Acquiror agrees to use commercially reasonable efforts, but shall not be required to pay or commit to pay any amount, to cause the Company and its Subsidiaries to be absolutely and unconditionally relieved on or prior to the Closing Date of all Liabilities and obligations arising out of the guaranties, letters of credit, performance bonds and other similar items issued and outstanding in connection with or for the benefit of the Business or in respect of the Transferred Assets as set forth in Section 5.8 of the Disclosure Schedule, including by causing one or more of the Acquiror or its Subsidiaries to be substituted in all respects for the Company and its Subsidiaries in respect of such Liabilities, and the Acquiror shall indemnify the Company and its Affiliates

 

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against any Losses of any kind whatsoever with respect to such Liabilities. To the extent the Company is not absolutely and unconditionally relieved of all such Liabilities on or prior to the Closing Date, the Acquiror agrees to continue to use commercially reasonable efforts to absolutely and unconditionally relieve the Company and its Subsidiaries of all such Liabilities as promptly as practicable after the Closing Date.

SECTION 5.9 Transfer Taxes .

(a) All sales (including bulk sales), use, value added, documentary, stamp, gross receipts, registration, transfer, conveyance, excise, recording, license, stock transfer stamps and other similar Taxes and fees (“ Transfer Taxes ”) applicable to the conveyance and transfer from the Company to the Acquiror of the Business, the Shares or the Transferred Assets shall be borne one-half by the Acquiror and one-half by the Company. Each party shall use reasonable efforts to avail itself of any available exemptions from any such Transfer Taxes and to cooperate with the other parties in providing any information and documentation that may be necessary to obtain such exemptions.

(b) The costs of recording documents conveying title from the Company to the Acquiror (including deeds and assignments, as well as any surveys and policies of title insurance that may be required or desired) covering any or all of the Real Property shall be borne by the Acquiror.

SECTION 5.10 Assumption of Litigation . The Acquiror agrees to assume the defense of any and all present or future claims, proceedings and other litigation Related to the Business or otherwise arising out of or primarily relating to any Transferred Entity, Transferred Assets or any Assumed Liability, and, whether or not any of the Transferred Entities, the Company or their Subsidiaries are party to such claims, proceedings or other litigations, to indemnify the Company and its Subsidiaries in respect of any Liability, Loss or expense (including reasonable attorney’s fees) of any kind whatsoever which the Company or any of its Subsidiaries may incur arising out of or relating to any such litigation or claim. The Acquiror shall have the right to assume and conduct the defense of any matters assumed by it pursuant to this Section 5.10 and the Company and its Subsidiaries shall cooperate in such defense to the extent reasonably requested by the Acquiror.

SECTION 5.11 Ancillary Agreements . At or prior to the Closing, the Company and the Acquiror shall execute and deliver:

(a) a transition services agreement, in the form attached hereto as Exhibit C , with such other terms as the parties may mutually agree (the “ Transition Services Agreement ”);

(b) the transitional trademark license with respect to the DEL MONTE trademark and logo, in the form attached hereto as Exhibit D (the “ Transitional Trademark Agreement ”);

(c) the Bill of Sale, Assignment and Assumption Agreement; and

(d) instruments of assignment of registered and applied for Transferred IP in form and substance reasonably satisfactory to the Acquiror.

 

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SECTION 5.12 Intellectual Property Licenses .

(a) Intellectual Property License .

(i) The Company, on behalf of itself and its Subsidiaries, grants to the Acquiror, effective as of the Closing Date, a non-exclusive, non-sublicensable (except as provided herein), non-assignable (except as provided in Section 5.12(a)(ii) ), perpetual, irrevocable, royalty-free, fully paid-up, worldwide license, in connection with the current and future operation of the Business, to use and exercise all rights under any Intellectual Property (other than Trademarks and Software), if any, that is owned by the Company or any of its Subsidiaries as of the Closing Date and that was used by the Business as of the Closing Date (the “ Seller Licensed IP ”). For clarity, this license covers any Seller Licensed IP in existence as of the Closing Date, but does not cover any Intellectual Property that arises, is created or acquired after the Closing Date. The Acquiror may sublicense this license solely (x) to its vendors, consultants, contractors and suppliers, in connection with their providing services to the Acquiror; or (y) to its distributors, customers and end-users, in connection with the distribution, licensing, offering and sale of the current and future products of the Business.

(ii) The Acquiror, on behalf of itself and its Subsidiaries, grants to the Company, effective as of the Closing Date, a non-exclusive, non-sublicensable (except as provided herein), non-assignable (except as provided in Section 5.12(a)(iii)), perpetual, irrevocable, royalty-free, fully paid-up, worldwide license, in connection with the current and future operation of its businesses, to use and exercise all rights under any Intellectual Property (other than Trademarks and Software), if any, that is owned by the Acquiror or any of its Subsidiaries as of the Closing Date and that was used by the Company as of the Closing Date (the “ Acquiror Licensed IP ”); provided, that the Company shall have no right to use the Acquiror Licensed IP to manufacture, distribute or sell for human consumption a Competing Product, or to directly or indirectly provide consulting, manufacturing or co-packing services to any person engaged in the manufacture, distribution or sale for human consumption of a Competing Product. For clarity, this license covers any Acquiror Licensed IP in existence as of the Closing Date, but does not cover any Intellectual Property that arises, is created or acquired after the Closing Date. The Company may sublicense this license solely (x) to its vendors, consultants, contractors and suppliers, in connection with their providing services to the Company; or (y) to its distributors, customers and end-users, in connection with the distribution, licensing, offering and sale of the current and future products of the Company.

(iii) Acquiror or the Company, as the case may be, may assign the licenses set forth in Section 5.12(a)(i) or Section 5.12(a)(ii) to any Affiliate, or in connection with a merger, reorganization, or sale of all, or substantially all, of any of the businesses to which such license relates, so long as: (x) the assigning party provides the other party with prompt written notice of such transaction; and (y) the assignment shall be expressly limited to the business being assigned (and shall not be deemed to extend to other businesses or affiliates of a successor).

 

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(b) Each of the parties hereto acknowledges and agrees that the remedy at law for any breach of the requirements of Section 5.12(a) would be inadequate, and agrees and consents that, without intending to limit any additional remedies that may be available, temporary and permanent injunctive and other equitable relief (including specific performance) may be granted without proof of actual damage or inadequacy of legal remedy, and without posting any bond or other undertaking, in any proceeding which may be brought to enforce any of the provisions of Section 5.12(a) .

(c) Each party acknowledges and agrees that the other party has no obligations under this Agreement with respect to delivery, training, registration, maintenance, policing, notification of infringements or renewal with respect to any Intellectual Property licensed herein.

SECTION 5.13 Rebates under Supply Agreement . Following the Closing, the Acquiror shall be entitled to receive and keep all dollar volume-based rebates paid pursuant to any of the Transferred Entity Contracts, Assumed Contracts and the portion of any Dividable Contract applicable to the Business. Following the Closing, the Company shall promptly remit to the Acquiror any rebates that it receives under any Transferred Entity Contract, Assumed Contract or the portion of any Dividable Contract applicable to the Business. Following the Closing, as between the Acquiror and the Company, the Company shall be entitled to receive and keep all dollar volume-based rebates paid pursuant to any Contract other than the Transferred Entity Contracts, Assumed Contracts and the portion of any Dividable Contract applicable to the Business. Following the Closing, the Acquiror shall promptly remit to the Company any rebates that it receives under any Contract other than a Transferred Entity Contract, Assumed Contract or the portion of any Dividable Contract applicable to the Business.

SECTION 5.14 Direct Trade Promotions . Acquiror shall honor all obligations for trade promotion programs (including, without limitation, slotting allowances, retailer ads, store display allowances and similar items) in effect on the Closing Date applicable to the Business in accordance with their respective terms.

SECTION 5.15 Forwarding of Collected Payments; Customer Deductions . From and after the Closing, the Company will promptly forward to the Acquiror any payments that the Company receives that are the property of the Acquiror as well as all material supporting documents including copies of checks documenting such payments and any documentation provided by customers for payment deductions taken by customers. From and after the Closing, the Acquiror will promptly forward to the Company any payments that the Acquiror receives which are the property of the Company. From and after the Closing, in the event that a customer makes a payment deduction that should have been an Assumed Liability from a receivable owed to the Company, the Acquiror, upon receipt of reasonable documentation from the Company, will pay the amount of such deduction to the Company.

SECTION 5.16 Pre-Closing Cooperation . In the event requested by the Acquiror, prior to the Closing, the Company shall cooperate with the Acquiror, at Acquiror’s sole cost and expense, to assist the Acquiror in obtaining certified ALTA or other types of surveys with respect to each parcel of Owned Real Property and, subject to the terms and provisions of the Real Property Leases, the Leased Real Property desired by the Acquiror. In the

 

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event requested by the Acquiror, prior to the Closing, the Company shall cooperate with Acquiror, at Acquiror’s sole cost and expense, to assist the Acquiror in obtaining policies of title insurance insuring Acquiror’s title to the Owned Real Property and Leased Real Property. The Company shall, and shall cause the Transferred Entities to, use commercially reasonable efforts to deliver, at or prior to the Closing, owner’s affidavits and title clearance documents as may be reasonably necessary to enable Fidelity National Title (“ Title Company ”) to issue title commitments and title policies insuring title to any parcel of Real Property in the Acquiror as required by the terms and provisions of this Agreement, provided in no event shall any such affidavits or title clearance documents increase the liabilities, obligations or indemnities of the Company agreed to under this Agreement. For the avoidance of doubt, neither the delivery of ALTA surveys nor the issuance of any title insurance policies shall be a condition to Closing.

SECTION 5.17 Post-Closing Cooperation .

(a) The Company, on the one hand, and the Acquiror, on the other, shall cooperate with each other, and shall cause their officers, employees, agents, auditors and other Representatives to cooperate with each other after the Closing to ensure the orderly transition of the Business from the Company to the Acquiror and to minimize any disruption to the Business and the other respective businesses of the Company and the Acquiror that might result from the transactions contemplated hereby. After the Closing, upon reasonable notice, the Acquiror shall furnish or cause to be furnished to the Company and its employees, counsel, auditors and other Representatives reasonable access (including the ability to make copies), during normal business hours, to such employees, counsel, auditors and other Representatives, Business Books and Records within the control of the Acquiror or any of its Affiliates as is reasonably necessary for (i) financial reporting, Tax and accounting and employee benefit matters and (ii) defense or prosecution of litigation and disputes with third parties. After the Closing, upon reasonable notice, the Company shall furnish or cause to be furnished to the Acquiror and its employees, counsel, auditors and other Representatives reasonable access (including the ability to make copies), during normal business hours, to such employees, counsel, auditors and other Representatives, books and records used in or relating to the Business (that are not included in the Transferred Assets) and within the control of the Company or any of its Affiliates, including, without limitation, records underlying the financial statements of the Business, as is reasonably necessary for (i) financial reporting, Tax and accounting and employee benefit matters and (ii) defense or prosecution of litigation and disputes with third parties.

(b) Each party will, and will cause each of its Subsidiaries to, retain all books and records and other documents pertaining to the Business in existence on the Closing Date for seven (7) years following the Closing; provided , that no such Business books and records or other documents shall be destroyed or disposed of during such seven (7) year period without first advising such other party in writing and giving such other party a reasonable opportunity to obtain possession thereof for the purposes permitted by this Section 5.17 .

(c) Each party shall reimburse the other for reasonable out-of-pocket costs and expenses incurred in assisting the other pursuant to this Section 5.17 . Neither party shall be required by this Section 5.17 to take any action that would unreasonably interfere with the conduct of its business or unreasonably disrupt its normal operations. Any information relating to the Business received by the Company pursuant to this Section 5.17 shall be subject to Section 5.3(b) .

 

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(d) Each party shall, from time to time after the Closing without additional consideration, execute and deliver such further deeds, assignments and instruments of transfer and take such other actions as may be reasonably requested by the other party to make effective the transactions contemplated by this Agreement and the other Transaction Agreements.

(e) The Company agrees to use commercially reasonable efforts to assist the Acquiror, at the Acquiror’s sole cost and expense, in preparing financial statements for the Business that are compliant with International Financial Reporting Standards.

SECTION 5.18 Confidentiality Agreements . Prior to and after the Closing, the Company shall not waive any obligation of any Person under any confidentiality agreement to which the Company is a party relating to the sale of the Business.

SECTION 5.19 Exclusivity . Until the earlier of the Closing Date and such time as this Agreement is terminated in accordance with Article IX , the Company shall not, and shall cause the Transferred Entities not to, and shall instruct its and their respective Affiliates, directors, officers, employees and other representatives not to, directly or indirectly, participate in, invite, solicit, entertain, initiate, encourage or enter into any negotiation, discussion or agreement with any Person with respect to an acquisition of any of the Transferred Entities or any of the material assets of any of the Transferred Entities (other than the sale of inventory of the Transferred Entities in the ordinary course of business) or the Business (other than the sale of Inventory in the ordinary course of business) or any divestiture, merger, share exchange, consolidation, business combination, recapitalization, redemption or similar transaction involving the Business or any of the Transferred Entities (each, a “ Proposed Transaction ) . The Company shall cause the Transferred Entities to, and shall instruct its and their respective Affiliates, directors, officers, employees and other representatives to, immediately cease and cause to be terminated all existing discussions, activities and negotiations with any Person with respect to any Proposed Transaction.

SECTION 5.20 Financing .

(a) The Company shall use its commercially reasonable efforts to provide such cooperation as may be reasonably requested by the Acquiror in connection with the Financing Commitments and the financing contemplated thereby, including, but not limited to, the following: (i) providing the Required Financial Information and otherwise assisting with the preparation of customary bank books, information memoranda and other information packages regarding the business, operations, financial condition, projections and prospects of the Business, the Transferred Assets and the Transferred Entities, and offering memoranda, (ii) providing information with respect to the Business, the Transferred Assets and the Transferred Entities as may be reasonably requested by Acquiror to permit Acquiror to prepare pro forma financial information customarily required for the financing, (iii) requesting the Company’s independent auditors to cooperate with the Financing Sources (and their respective Affiliates), including by providing customary comfort letters (including customary “negative assurances”), (iv) assistance with the preparation of rating agency presentations and otherwise assisting with obtaining credit

 

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ratings in connection with the financing contemplated by the Financing Commitments, (v) facilitating the execution and delivery at the Closing of definitive financing, pledge, security and guarantee documents and the provision of guarantees and security with respect to the Business, the Transferred Assets and the Transferred Entities and their respective assets, and (vi) cooperating with consultants or others engaged to undertake field examinations and appraisals, including furnishing information to such persons in respect of accounts receivable, inventory and other applicable assets; provided , however , that the Company and its Subsidiaries will not be required to (A) take any action that would interfere with the ongoing operation of the business or operations of the Company or its Subsidiaries, (B) pay any commitment or other similar fee, incur any other liability or provide any indemnification, (C) cause any representation or warranty in this Agreement to be breached or cause any condition to the Closing set forth in Section 8.1 or Section 8.2 to fail to be satisfied, (D) cause any director, officer, or employee of the Company or any of the Transferred Entities to incur any personal liability or (E) enter into any agreement or binding commitment that is not contingent upon the Closing or that would be effective prior to the Closing Date.

(b) Acquiror shall indemnify and hold harmless the Company, its Subsidiaries and their Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the financing (including any action taken in accordance with this Section 5.20 ) and any information utilized in connection therewith. Acquiror shall, promptly upon request by the Company, reimburse the Company for all documented and reasonable out-of-pocket costs incurred by the Company or its subsidiaries in connection with this Section 5.20 . The Company hereby consents to the reasonable use of the Company’s and its subsidiaries’ logos in connection with the Financing Commitments, provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries or any of their logos and on such other customary terms and conditions as the Company shall reasonably impose.

SECTION 5.21 Other Certain Shared Assets . During the period from the Closing Date through the second anniversary thereof, the Acquiror may elect to request access to a specific Qualifying Shared Asset or that a Qualifying Shared Asset be deemed a Transferred Asset by sending notice of such request to the Company (an “ Access Notice ”), which Access Notice shall describe the requested Qualifying Shared Asset in reasonable detail. In the event that the Acquiror requests access to a Qualifying Shared Asset or a determination that such Qualifying Shared Asset is a Transferred Asset as contemplated by this Section 5.21 , the Acquiror and the Company shall negotiate in good faith to determine whether such access can be provided to the Acquiror in a manner consistent with the manner in which such Qualifying Shared Asset was previously made available to the Business immediately prior to the Closing or whether such Qualifying Shared Asset shall be deemed a Transferred Asset.

SECTION 5.22 Insurance .

(a) Effective as of the Closing Date, (i) subject to Section 5.22(c) , the Company will be entitled to terminate or cause its Subsidiaries to terminate all insurance coverage relating to the Transferred Assets and the Business and the current or former directors,

 

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officers and employees thereof under the general corporate policies of insurance, cancelable surety bonds and hold harmless agreements and (ii) the Acquiror shall become solely responsible for all insurance coverage and related risk of loss with respect to the Transferred Assets, Business and its current or former directors, officers and employees.

(b) Notwithstanding Section 5.22(a) , to the extent that (i) any insurance policies issued for the benefit of the Company and its Subsidiaries (the “ Company’s Insurance Policies ”) cover any loss, liability, claim, damage or expense relating to the Business and relating to or arising out of occurrences on or prior to the Closing Date (“ Pre-Closing Matters ”) and (ii) the Company’s Insurance Policies continue after the Closing to permit claims to be made thereunder with respect to Pre-Closing Matters, the Company shall cooperate and cause its Subsidiaries to cooperate with the Acquiror in submitting claims with respect to Pre-Closing Matters on behalf of the Acquiror under the Company’s Insurance Policies; provided that if such a claim in respect of a Pre-Closing Matter is rejected under the Company’s Insurance Policies, at the reasonable request and sole cost of the Acquiror, the Company and its Subsidiaries shall use their commercially reasonable efforts to commence litigation to enforce such claim and that Acquiror shall reimburse, indemnify and hold the Company and its Subsidiaries harmless from all liabilities, costs and expenses (including all present or future premiums and retroactive or prospective premium adjustments, deductibles, self-insured retentions, legal and administrative costs, attorney’s fees, overhead and costs of compliance under Seller’s Insurance Policies) of any nature actually incurred by the Company or its Subsidiaries as a result of such claims made under the Company’s Insurance Policies and provided, further, that the Acquiror shall not make any such claims if, and to the extent that, such claims are covered by insurance policies held by the Acquiror or its Affiliates. Upon the incurrence or accrual of any such liability, cost or expense relating to claims made under the Company’s Insurance Policies with respect to Pre-Closing Matters and upon receipt from the Company of a statement of the amount of such liabilities, costs and expenses in reasonable detail, from time to time, the Acquiror shall make payment promptly to the Company or its Subsidiaries of the amount indicated in such statement.

(c) The Company shall use its commercially reasonable efforts to obtain at the Closing (or prior to expiration or cancelation) a “tail” with respect to each of the Company’s insurance policies set forth in Section 3.20(a) of the Disclosure Schedule providing coverage to the Business or in respect of employment practices of the Business as applicable to or allowed by the policy or to the extent that the policy is not renewed within the original initial discovery period in order to cover claims thereunder made on or before the third (3 rd ) anniversary of the Closing Date with respect to Pre-Closing Matters, on terms reasonably satisfactory to the Acquiror to the extent commercially available. The Company shall also use its commercially reasonable efforts to have the Acquiror added as an additional named insured under each such insurance policy for which “tail” coverage was purchased. In the event such insurance tails are obtained, the Acquiror shall reimburse the Company for the full cost of obtaining such tail policies.

 

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ARTICLE VI

EMPLOYEE MATTERS

SECTION 6.1 Transferred Employees.

(a) Where applicable Law provides for the transfer of employment of any Business Employee upon a sale of the Business, the Acquiror and the Company shall take or cause to be taken such actions as are required under applicable Law to accomplish such transfer of employment of such Business Employee to the Acquiror or any of its Affiliates as a matter of Law as of the Closing. Where applicable Law does not provide for the transfer of employment of any current Business Employee upon the sale of the Business to the Acquiror, the Acquiror shall, or shall cause one of its Affiliates to, make offers of employment in accordance with the provisions of this Article VI , to be effective as of the Closing, to (i) all such Business Employees (except those Business Employees agreed by the parties) and (ii) certain other individuals, to be agreed by the parties, who are not Business Employees but who are involved in both the Business and other businesses of the Company and its Subsidiaries. Each (i) Business Employee whose employment transfers from the Company to the Acquiror or any of its Affiliates on the Closing by operation of Law, or who receives and accepts the offer of employment from the Acquiror or any of its Affiliates, and (ii) Transferred Entity Employee, is referred to herein as a “ Transferred Employee ”). In connection with the Closing, the Company shall release all Transferred Employees from any covenants, agreements or policies that might restrict their employment by the Acquiror or its Affiliates.

(b) Each offer of employment to any Union Employee shall provide for identical terms and conditions of employment to those provided to such Union Employee at the time of the Closing. Without limiting the foregoing, with respect to any Transferred Employee that is a Union Employee, Acquiror (or an Affiliate thereof) shall assume and be bound by and shall satisfy the terms of the Collective Bargaining Agreements, the terms of which shall govern the employment and benefits of such Transferred Employee until such time as the Collective Bargaining Agreement expires or is modified as the result of Acquiror (or an Affiliate thereof) entering into a new, different or modified agreement with the applicable union. Acquiror shall protect and otherwise hold harmless the Company from any allegations, claims, grievances or proceedings relating to (A) any alleged non-compliance with terms of any Collective Bargaining Agreement relating to successors to the extent attributable to Acquiror’s failure to fulfill its obligations under this Section 6.1 or the relevant Collective Bargaining Agreement, (B) Acquiror’s obligation to assume and comply with any Collective Bargaining Agreement, or (C) Acquiror’s assumption of any Collective Bargaining Agreement.

(c) Subject to the provisions of this Section 6.1(c) below, each offer of employment to any Business Employee that is not a Union Employee shall provide for terms and conditions of employment that are substantially equivalent in the aggregate to those provided to such Business Employee at the time of the Closing. Without limiting the foregoing, with respect to any Transferred Employee that is not a Union Employee, for the one (1) year period immediately following the Closing Date to the extent such Transferred Employee remains employed during such period, the Acquiror shall, or shall cause its Affiliates to, provide to each such Transferred Employee: (i) at least the same annual base salary or wage rate in effect as of the date of this Agreement and at least the same bonus opportunities provided by the Company in respect of the fiscal year in which the Closing Date occurs and (ii) employee benefits (including, without limitation, perquisites, paid time off and severance benefits) that, in each case, are no less favorable than those employee benefits provided to such Transferred Employee immediately

 

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prior to the Closing or, if more favorable in the aggregate, those employee benefits provided to similarly situated employees of the Acquiror or its Affiliates, as applicable, except the Acquiror shall not be required to continue any equity award programs. Nothing in this Section 6.1(c) is intended to limit or restrict the rights of the Acquiror or its Affiliates to terminate the employment of any Transferred Employee that is not a Union Employee at will, for any reason or no reason and with or without notice.

SECTION 6.2 Employee-Related Liabilities .

(a) It is the intention of the Parties that all employment-related Liabilities associated with Business Employees and Former Business Employees, whether arising or incurred prior to, on or after the Closing Date, are to be assumed by Acquiror or one of its Affiliates, except as otherwise specifically set forth herein.

(b) Except as otherwise expressly provided in this Agreement, effective as of the Closing, Acquiror or one of its Affiliates shall assume, and none of the Company or its Affiliates shall have any further Liability with respect to, or under:

(i) any individual agreements entered into between the Company and any Business Employee or Former Business Employee;

(ii) agreements entered into between the Company and any individual who is or was an independent contractor, or leasing organization, providing services primarily for the Business;

(iii) Collective Bargaining Agreements, collective agreements, trade union or works council agreements entered into between the Company and any union, works council or other body representing Business Employees and/or Former Business Employees;

(iv) wages, salaries, incentive compensation, commissions, bonuses, paid time off/vacation/sick pay, and any other employee compensation or benefits payable to or on behalf of any Business Employee or Former Business Employee after the Closing, without regard to when such wages, salaries, incentive compensation, commissions, bonuses, or other employee compensation or benefits are or may have been earned;

(v) any nonqualified deferred compensation Company Plan pursuant to which any Business Employee or Former Business Employee has any legally binding rights to payments, whether vested or unvested, as of the Closing Date;

(vi) immigration-related, visa, work application or similar rights, obligations and Liabilities related to any Business Employees or Former Business Employees; and

(vii) all employment-related claims, proceedings, causes of actions, lawsuits and other Liabilities related to any Business Employees or Former Business Employees, without regard to when the events giving rise to the foregoing have occurred.

 

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(c) With respect to unpaid covered claims by any Business Employee or Former Business Employee under any Company Plan that provides welfare benefits or non-qualified deferred compensation, which are either incurred but not processed or that are incurred but unreported prior to the Closing Date, including claims that are self-insured and claims that are fully insured through third-party insurance, the Company or one of its Affiliates shall contine to be responsible for the payment for such claims . Acquiror shall reimburse the Company for its net after-tax cost of paying any such benefit that is not insured. For purposes of this subsection, a claim or expense is deemed to be incurred on or prior to the Closing Date if (i) with respect to medical (including continuous hospitalization), dental, vision and/or prescription drug benefits, the rendering of health services giving rise to such claim or expense occurs on or before the Closing Date; (ii) with respect to life insurance, accidental death and dismemberment and business travel accident insurance, the event giving rise to such claim or expense occurs on or before the Closing Date; and (iii) with respect to long-term disability benefits, the date of an individual’s disability, as determined by the disability benefit insurance carrier or claim administrator, giving rise to such claim or expense, occurs on or before the Closing Date.

(d) As of the Closing, Acquiror or one of its Affiliates shall assume and satisfy all Liabilities with respect to any Business Employee who is, as of the Closing, on vacation or other approved leave of absence, whether paid or unpaid (including leave under FMLA or corresponding state Law, disability, military leave and other approved leave, including Liabilities for salary continuation, paid leave or continuing benefits).

SECTION 6.3 Participation in Company Plans . Effective as of the Closing, the Transferred Employees shall cease to be covered by the Company Plans that are not Transferred Entity Plans.

SECTION 6.4 Service Recognition . Effective as of the Closing Date, Acquiror shall, and shall cause each member of its Affiliates to, give each Transferred Employee full credit for purposes of eligibility, vesting, determination of level of benefits, under any employee benefit plans policies, programs, or arrangements of the Acquiror or its Affiliates (each an “ Acquiror Benefit Arrangement ”) for such individuals’ service with the Company or Transferred Entities, as applicable, or any predecessor thereto prior to the Closing Date, to the same extent such service was recognized by the applicable Company Plan or Transferred Entity Plan, as the case may be, immediately prior to the Closing Date; provided , that, such service shall not be recognized to the extent such recognition would result in the duplication of benefits. In addition, and without limiting the generality of the foregoing provisions, (i) Acquiror shall cause each Transferred Employee to be immediately eligible to participate, without any waiting time, in any and all Acquiror Benefit Arrangements to the extent coverage under the Acquiror Benefit Arrangement is comparable to a Company Plan or Transferred Entity Plan, as the case may be, in which the Transferred Employee participated immediately before the Closing Date and (ii) for purposes of each Acquiror Benefit Arrangement providing medical, dental, pharmaceutical or vision benefits to any Transferred Employee, Acquiror shall cause all pre-existing condition exclusions and actively-at-work requirements of such Acquiror Benefit Arrangement to be waived for such employee and his or her covered dependents, except to the extent such conditions would not have been waived under the comparable Company Plan or Transferred Entity Plan, as the case may be, in which such employee participated immediately prior to the Closing Date, and Acquiror shall cause any eligible expenses incurred by such

 

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employee and his or her covered dependents during the portion of the plan year of the Company Plan or Transferred Entity Plan, as the case may be, ending on the date such employee’s participation in the corresponding Acquiror Benefit Arrangement begins to be taken into account under such Acquiror Benefit Arrangement for purposes of satisfying all deductible, coinsurance and maximum out-of pocket requirements applicable to such employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with the Acquiror Benefit Arrangement.

SECTION 6.5 Company Pension Plan .

(a) Effective as of the Closing Date, Acquiror shall, or shall have caused one or more of its Affiliates to, establish or maintain a defined benefit pension plan and related trust to accept the transfer of Assets and Liabilities described in Section 6.5(b) and provide retirement benefits to Business Pension Participants (such defined benefit pension plan, the “ Acquiror Pension Plan ”). Acquiror shall be responsible for taking all necessary, reasonable, and appropriate action to establish, maintain and administer the Acquiror Pension Plan so that it is qualified under Section 401(a) of the Code and that the related trust thereunder is exempt under Section 501(a) of the Code, and as soon as reasonably practicable following the Closing Date, Acquiror shall take all steps reasonably necessary to obtain a favorable determination from the IRS as to such qualification if one is not then applicable to the Acquiror Pension Plan. Acquiror shall be responsible for any and all Liabilities (including Liability for funding) and other obligations with respect to the Acquiror Pension Plan.

(b) Acquiror shall cause the Acquiror Pension Plan to assume, fully perform, pay and discharge, all Liabilities under the Company Pension Plan relating to all Business Pension Participants as of immediately before the Closing Date in accordance with the provisions of this Section 6.5(b) .

(i) The Parties intend that the portion of the Company Pension Plan covering Business Pension Participants shall be transferred to the Acquiror Pension Plan in accordance with Section 414(l) of the Code, Treasury Regulation Section 1.414(l)-1 and Section 208 of ERISA. Any surplus Assets under the Company Pension Plan (i.e., any Assets held under the Company Pension Plan that are in excess of the Assets required to be allocated to the Company Pension Plan and the Acquiror Pension Plan in accordance with the preceding sentence) shall be retained by the Company Pension Plan. No later than thirty (30) days prior to the Closing Date, the Company and Acquiror shall, to the extent necessary, file an IRS Form 5310-A regarding the transfer of Assets and Liabilities from the Company Pension Plan to the Acquiror Pension Plan.

(ii) Prior to the Closing Date (or such later time as mutually agreed by the Company and Acquiror), the Company shall cause the Company Actuary to determine the estimated value, as of the Closing Date, of the Assets to be transferred to the Acquiror Pension Plan in accordance with the assumptions and valuation methodology set forth on Section 6.5(b) of the Disclosure Schedule (the “ Estimated Company Pension Plan Transfer Amount ”).

 

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(iii) Not later than ten (10) Business Days following the Closing Date (or such later time as mutually agreed by the Company and Acquiror), the Company and Acquiror shall cooperate in good faith to cause an initial transfer of Assets from the Company Pension Plan to the Acquiror Pension Plan in an amount (as determined by the Company in its discretion) equal to not less than eighty-five percent (85%) and not more than ninety-five percent (95%) of the Estimated Company Pension Plan Transfer Amount (such amount, the “ Initial Company Transfer Amount ”). The Company shall satisfy its obligation pursuant to this Section 6.5(b)(iii) by causing the Company Pension Plan to transfer an amount of Assets (as determined by the Company in its discretion, in kind, in cash, cash-like securities or other cash equivalents) equal to the Initial Company Transfer Amount.

(iv) Within two hundred seventy (270) days (or such later time as mutually agreed by the Company and Acquiror) following the Closing Date, the Company shall cause the Company Actuary to provide Acquiror with a revised calculation of the value, as of the Closing Date, of the Assets to be transferred to the Acquiror Pension Plan determined in accordance with the assumptions and valuation methodology (including a provision for crediting any distributions made from the Company Pension Plan) set forth on Section 6.5(b) of the Disclosure Schedule (the “ Revised Company Pension Plan Transfer Amount ”). Acquiror may submit, at its sole cost and expense, the Revised Company Pension Plan Transfer Amount to the Acquiror Actuary for verification; provided , that, such verification process and any calculation performed by the Acquiror Actuary in connection therewith shall be performed solely on the basis of the assumptions and valuation methodology set forth on Section 6.5(b) of the Disclosure Schedule. In order to perform such verification, upon request from Acquiror, the Acquiror Actuary shall receive the data and additional detailed methodology used to calculate the Initial Company Transfer Amount and the Revised Company Pension Plan Transfer Amount (if reasonably needed) from the Company Actuary. Acquiror shall be responsible for the cost and expense of the Acquiror Actuary and the Company shall be responsible for the cost and expense for the Company Actuary for such data transfer. In the event the Acquiror Actuary so determines that the value, as of the Closing Date, of the Assets to be transferred to the Acquiror Pension Plan differs from the Revised Company Pension Plan Transfer Amount, the Acquiror Actuary shall identify in writing to the Company Actuary all objections to the determination within sixty (60) days following provision of the revised value calculation to Acquiror pursuant to the first sentence of this paragraph (iv), and the Acquiror Actuary and the Company Actuary shall use good faith efforts to reconcile any such difference. If the Acquiror Actuary and the Company Actuary fail to reconcile such difference, the Acquiror Actuary and the Company Actuary shall jointly designate a third, independent actuary whose calculation of the value, as of the Closing Date, of the Assets to be transferred to the Acquiror Pension Plan shall be final and binding; provided , that, such calculation must be performed within sixty (60) days following designation of such third actuary and in accordance with the assumptions and valuation methodology set forth on Section 6.5(b) of the Disclosure Schedule; and provided , further , that if such value is not equal to or between the value determined by the Acquiror Actuary and the Revised Company Pension Plan Transfer Amount, such value shall be deemed to be either the value determined by the Acquiror Actuary or the Revised Company Pension Plan Transfer

 

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Amount, whichever is closer. the Company and Acquiror shall each pay one-half of the costs incurred in connection with the retention of such independent actuary. The final, verified value, as of the Closing Date, of the Assets to be transferred to the Acquiror Pension Plan as determined in accordance with this Section 6.5(b)(iv) shall be referred to herein as the “ Pension Plan Transfer Amount ”.

(v) Within forty-five (45) days (or such later time as mutually agreed by the Company and Acquiror) of the determination of the Pension Plan Transfer Amount, the Company shall cause the Company Pension Plan to transfer to the Acquiror Pension Plan (the date of such transfer, the “ Final Company Transfer Date ”) an amount (as determined by the Company in its discretion, in kind, in cash, cash-like securities or other cash equivalents), equal to (A) the Pension Plan Transfer Amount minus (B) the Initial Company Transfer Amount (such difference, as adjusted to reflect earnings or losses as described below, the “ Company True-Up Amount ); provided , that, in the event the Company True-Up Amount is negative, the Company shall not be required to cause any such additional transfer and instead Acquiror shall be required to cause a transfer of cash, cash-like securities or other cash equivalents (or, if determined by Acquiror in its discretion, Assets in kind) from the Acquiror Pension Plan to the Company Pension Plan in amount equal to the absolute value of the Company True-Up Amount. The Parties acknowledge that the Company Pension Plan’s transfer of the Company True-Up Amount to the Acquiror Pension Plan shall be in full settlement and satisfaction of the obligations of the Company to cause the transfer of, and the Company Pension Plan to transfer, Assets to the Acquiror Pension Plan pursuant to this Section 6.5(b)(v) . The Company True-Up Amount shall be paid from the Company Pension Plan to the Acquiror Pension Plan, as determined by the Company in its discretion in kind, in cash, cash-like securities or other cash equivalents, and shall be adjusted to reflect earnings or losses during the period from the Closing Date to the Final Company Transfer Date. Such earnings or losses shall be determined based on the actual rate of return of the Company Pension Plan (as determined by the Company Actuary) for the period commencing on the first day of the calendar month following the calendar month in which the Closing Date occurs and ending on the last day of the calendar month ending immediately prior to the Final Company Transfer Date. Earnings or losses for the period from such last day of the month to the Final Company Transfer Date shall be based on the actual rate of return of the Company Pension Plan during the last calendar month ending immediately prior to the Final Company Transfer Date determined as of the date that is as close as administratively practicable to the Final Company Transfer Date. In the event that Acquiror is obligated to cause the Acquiror Pension Plan to reimburse the Company Pension Plan pursuant to this Section 6.5(b)(v) , such reimbursement shall be performed in accordance with the same principles set forth herein with respect to the payment of the Company True-Up Amount. The Parties acknowledge that the Acquiror Pension Plan’s transfer of such reimbursement amount to the Company Pension Plan shall be in full settlement and satisfaction of the obligations of Acquiror to cause the transfer of, and the Acquiror Pension Plan to transfer, Assets to the Company Pension Plan pursuant to this Section 6.5(b)(v) .

 

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(c) Continuation of Elections . As of the Closing Date, to the extent permitted by applicable Law, Acquiror shall cause the Acquiror Pension Plan to recognize and maintain all existing elections, including beneficiary designations, payment form elections and rights of alternate payees under qualified domestic relations orders with respect to Business Pension Participants under the Company Pension Plan; provided , that, nothing in this Section 6.5(c) shall prohibit Acquiror from soliciting or causing the solicitation of new elections from Business Pension Participants to be effective under the Acquiror Pension Plan.

SECTION 6.6 401(k) Plan .

(a) Effective as of the Closing Date, the Acquiror shall, or shall have caused one of its Affiliates to, establish or maintain a defined contribution savings plan and related trust intended to satisfy the requirements of Sections 401(a) and 401(k) of the Code (such defined contribution savings plan or plans, the “ Acquiror 401(k) Plan ). Acquiror shall be responsible for taking all necessary, reasonable, and appropriate action to establish, maintain and administer the Acquiror 401(k) Plan so that it is qualified under Section 401(a) of the Code, that it satisfies the requirements of Section 401(k) of the Code and that the related trust thereunder is exempt under Section 501(a) of the Code, and as soon as reasonably practicable following the Closing Date Acquiror shall take all steps reasonably necessary to obtain a favorable determination from the IRS as to such qualification if one is not then applicable to the Acquiror 401(k) Plan. Acquiror shall be responsible for any and all Liabilities (including Liability for funding) and other obligations with respect to the Acquiror Plan.

(b) Effective as of the Closing Date, the Company shall cause the Del Monte Corporation Saver Plan and the Del Monte Corporation Savings Plan (the “ Company 401(k) Plans ”), to the maximum extent permissible under the terms of the Company 401(k) Plans then in effect, to treat Transferred Employees who participated in the Company 401(k) Plans immediately before the Closing Date as having a separation from employment entitling them to a distribution under the Company 401(k) Plans. To the extent any such Transferred Employee shall request a distribution in the form of a direct rollover (within the meaning of Section 401(a)(31) of the Code) to the Acquiror 401(k) Plan within one (1) year following the Closing Date, Acquiror shall cause the Acquiror 401(k) Plan to accept such direct rollover and, to the extent any such Transferred Employee shall request a distribution in the form of such a direct rollover to the Acquiror 401(k) Plan within sixty (60) days following the Closing Date, Acquiror shall cause the Acquiror 401(k) Plan to accept in-kind any plan loan then not in default.

SECTION 6.7 Post-Retirement Health and Welfare Benefits; COBRA Coverage .

(a) Acquiror will adopt or amend a plan under which it will assume all Liabilities for any post-employment or other retiree medical benefits that any Business Employees and Former Business Employees (and their dependents) are eligible to receive pursuant to any applicable Company Plan (the “ Post-Termination Welfare Plans ) arising after the Closing Date, and Acquiror or one of its Affiliates shall be fully responsible for the administration of all such claims under such Post-Termination Welfare Plans. Each Company Plan providing OPEB and COBRA benefits prior to the Closing Date shall continue to process claims for Business and Former Business Employees (and their dependents) incurred on and prior to the Closing Date in the manner contemplated by Section 6.2(c) , and the Acquiror shall reimburse the Company for the net after-tax cost of any such benefits which the Company self-

 

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insures. Within a reasonable time prior to the Closing, the Company will provide to the Acquiror, and the Company and the Acquiror shall agree on, a list of all Former Business Employees who are actively receiving benefits under, or who are eligible to receive benefits under, any Post-Termination Welfare Plan, as of the Closing Date.

(b) Except as provided in paragraph (a) above, the Acquiror shall be responsible for providing, and shall assume all Liabilities in respect of, continuation coverage under Section 4980B of the Code and Part 6 of Title I of ERISA and the regulations thereunder (together “ COBRA ”) or any relevant benefit continuation requirements under applicable Laws, for all Business Employees and Former Business Employees with respect to any “qualifying event” (within the meaning of COBRA) incurred on or prior to the Closing Date or otherwise arising as a result of the transactions described herein. Immediately prior to the Closing, the Company will provide to the Acquiror a list of all Former Business Employees who either (i) were terminated within the ninety (90) days immediately preceding the Closing, or (ii) receiving COBRA continuation coverage on the Closing Date.

SECTION 6.8 Multiemployer Plans . The Company and Acquiror intend to comply with the requirements of Section 4204 of ERISA in order that the transactions contemplated by this Agreement shall not be deemed a complete or partial withdrawal of the Company from any Company Plan that is a “multiemployer plan” within the meaning of Section 3(37) of ERISA (a “ Multiemployer Plan ”). Accordingly, the Company and Acquiror agree:

(a) After the Closing Date, Acquiror shall contribute to each Multiemployer Plan with respect to the operations of the Business for substantially the same number of “contribution base units” for which the Company had an “obligation to contribute” to such Multiemployer Plan (as those terms are defined in Sections 4001(a)(11) and 4212 of ERISA, respectively) pursuant to the Collective Bargaining Agreements.

(b) Acquiror shall provide to each Multiemployer Plan, for a period of five (5) consecutive plan years commencing with the first (1st) plan year beginning after the Closing Date, either a bond issued by a surety company that is an acceptable surety for purposes of Section 412 of ERISA or an amount held in escrow by a bank or similar financial institution satisfactory to each such Multiemployer Plan. The amount of such bond or escrow deposit shall be equal to the greater of (A) the average annual contribution that the Company was required to make to such Multiemployer Plan with respect to the operations of the Business for the three (3) plan years immediately preceding the plan year in which the Closing Date occurs, and (B) the annual contribution that the Company was required to make to such Multiemployer Plan with respect to the operations of the Business for the last plan year immediately preceding the plan year in which the Closing Date occurs.

(c) If Acquiror completely or partially withdraws from the Multiemployer Plan prior to the end of the fifth (5th) plan year beginning after the Closing Date, and the resulting liability of Acquiror with respect to the Multiemployer Plan is not paid, then the Company shall be secondarily liable in an amount not to exceed the amount of withdrawal liability the Company would have had to pay to the Multiemployer Plan as a result of the transactions contemplated by this Agreement if the Acquiror and the Company had not complied with Section 4204 of ERISA. Acquiror shall indemnify the Company against any liability incurred by the Company pursuant to this clause (c).

 

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SECTION 6.9 Workers’ Compensation Liabilities . Effective as of the Closing Date, Acquiror or one of its Affiliates shall assume all Liabilities (other than any Liabilities related to medical or other similar services performed, or compensation in respect of lost work for periods, prior to the Closing Date) for Business Employees and Former Business Employees related to any and all workers’ compensation claims and coverage, whether arising under any law of any state, territory, or possession of the U.S. or the District of Columbia and whether arising before, on or after the Closing Date, and Acquiror or one of its Affiliates shall be fully responsible for the administration of all such claims. If Acquiror or one of its Affiliates is unable to assume any such Liability or the administration of any such claim because of the operation of applicable state law or for any other reason, the Company shall retain such Liabilities and Acquiror shall reimburse and otherwise fully indemnify the Company for all such Liabilities, including the costs of administering the plans, programs or arrangements under which any such Liabilities have accrued or otherwise arisen.

SECTION 6.10 Payroll and Related Taxes . With respect to the portion of the tax year occurring prior to the day immediately following the Closing Date, the Company will (i) be responsible for all payroll obligations, tax withholding and reporting obligations and (ii) furnish a Form W-2 or similar earnings statement to all Business Employees for such period. With respect to the remaining portion of such tax year, Acquiror or one of its Affiliates will (i) be responsible for all payroll obligations, tax withholding, and reporting obligations regarding Transferred Employees and (ii) furnish a Form W-2 or similar earnings statement to all Transferred Employees. With respect to each Transferred Employee, the Company and Acquiror shall, and shall cause their respective Affiliates to (to the extent permitted by applicable Law and practicable) (a) treat Acquiror (or its applicable Affiliate) as a “successor employer” and the Company (or its applicable Affiliate) as a “predecessor,” within the meaning of Sections 3121(a)(1) and 3306(b)(1) of the Code, to the extent appropriate, for purposes of Taxes imposed under the United States Federal Insurance Contributions Act, as amended, or the United States Federal Unemployment Tax Act, as amended, and (b) file tax returns, exchange wage payment information, and report wage payments made by the respective predecessor and successor employer on separate IRS Forms W-2 or similar earnings statements to each such Transferred Employee for the tax year in which the Closing occurs, in a manner provided in Section 4.02(l) of Revenue Procedure 2004-53.

SECTION 6.11 No Third Party Beneficiaries . The provisions of this Article VI are solely for the benefit of the parties to this Agreement, and no current or former employee, director or independent contractor or any other individual associated therewith shall be regarded for any purpose as a third-party beneficiary of the Agreement, and nothing herein shall be construed as an amendment to any Company Plan or other employee benefit plan for any purpose. Nothing in this Article VI shall be construed to (i) limit the right of the Company, the Acquiror or any of their respective Affiliates to amend or terminate any Company Plan, Transferred Entity Plan, Acquiror Benefit Arrangement or any other employee benefit plan, to the extent such amendment or termination is permitted by the terms of the applicable plan, or (ii) require the Acquiror or any of its Affiliates to retain the employment of any particular Transferred Employee for any fixed period of time following the Closing Date.

 

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ARTICLE VII

TAX MATTERS

SECTION 7.1 Tax Matters .

(a) Allocation of Taxes . In the case of any taxable period starting on or before and ending after the Closing Date (the “ Straddle Period ”), the amount of Taxes allocable to the portion of the taxable period ending on the Closing Date shall be deemed to be: (i) in the case of Taxes imposed on a periodic basis (such as real or personal property Taxes), the amount of such Taxes for the entire period (or, in the case of such Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding period) multiplied by a fraction, the numerator of which is the number of calendar days in the Straddle Period ending on and including the Closing Date and the denominator of which is the number of calendar days in the entire relevant Straddle Period; and (ii) in the case of Taxes not described in (i) above, the amount of any such Taxes shall be determined as if such taxable period ended as of the close of business on the Closing Date.

(b) Allocation of Purchase Price . The Acquiror and the Company agree that the Purchase Price will first be allocated between the Transferred Entities and the Transferred Assets. The Acquiror and the Company agree that the Purchase Price for the Transferred Assets shall be allocated among the Transferred Assets in accordance with the rules under Section 1060 of the Code and the Treasury Regulations promulgated thereunder. The Acquiror shall prepare an initial allocation and deliver such allocation to the Company for review and consent within ten (10) days after the determination of the Final Working Capital. Such allocation shall be mutually agreed upon between the Acquiror and the Company. The Acquiror and the Company agree to act in accordance with the computations and allocations as determined pursuant to this Section 7.1(b) in any relevant Tax Returns or filings, including any forms or reports required to be filed pursuant to Section 1060 of the Code, the Treasury Regulations promulgated thereunder or any provisions of local, state and foreign law, and to cooperate in the preparation of any such forms and to file such forms in the manner required by applicable law. Any issues with respect to the allocation which have not been finally resolved within ninety (90) days following the determination of the Final Working Capital shall be referred to the Independent Accounting Firm to be resolved in accordance with the procedures in Section 2.10(c) . To the extent the Purchase Price is adjusted under this Agreement, adjustments will be made to the allocation to reflect such adjustments.

(c) Section 951 Income .

(i) Acquiror shall indemnify the Company against any Taxes attributable to the Company’s income under Section 951 of the Code for the taxable year of the Closing to the extent such income exceeds the amount of income under Section 951 of the Code that would have been recognized by the Company had the taxable year of the Transferred Entities ended immediately after the Closing.

 

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(ii) After the Closing, Acquiror shall provide to the Company the information reasonably requested by the Company that is necessary for the Company to determine its pro rata share of income under Section 951 of the Code for any taxable year of the Transferred Entities or their Subsidiaries for which the Company has a U.S. federal income tax reporting obligation.

(iii) The Acquiror shall not make or permit to be made an election under Section 338(g) of the Code with respect to any of the Transferred Entities.

(d) Preparation and Filing of Tax Returns of the Transferred Entities .

(i) The Company shall prepare and file, or cause to be prepared and filed, and shall pay (or cause to be paid) all Taxes shown as due on, (i) all Tax Returns with respect to the Transferred Entities due on or prior to the Closing Date and (ii) all Tax Returns with respect to the Transferred Entities for Tax periods ending on or before the Closing Date.

(ii) As set forth in Section 7.1(d)(iii) , the Acquiror shall cause to be prepared and filed, all Tax Returns required to be filed by any of the Transferred Entities relating to any taxable period not described in Section 7.1(d)(i) .

(iii) For any Tax Return for which the Company may be liable to indemnify the Acquiror pursuant to this Agreement that is not prepared by the Company under Section 7.1(d)(i) , (A) such Tax Return shall be prepared in accordance with past practice of the Company except to the extent, if any, that there is no reasonable basis for such practice or such practice is contrary to Law, (B) the Acquiror shall deliver any such Tax Return to the Company at least thirty (30) days before it is due, including extensions, (C) the Company shall have the right to examine and comment on any such Tax Return prior to the filing of such Tax Return, and such Tax Return shall not be filed without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed, (D) the Company shall provide such written consent or deliver a notice of objection with respect to such Tax Return no later than ten (10) days before such Tax Return is due and (E) the Acquiror shall incorporate reasonable comments of the Company.

(e) In the event that the Company and the Acquiror are unable to resolve any dispute within ten (10) days of the receipt by the Acquiror of a notice of objection from the Company, the Company and the Acquiror shall jointly cause the Independent Accounting Firm to resolve the dispute. If the dispute is not resolved on or before the applicable filing date of the Tax Return, the Acquiror may file such Tax Return; provided, however, that if the Independent Accounting Firm subsequently makes a determination that is inconsistent with such Tax Return filed by the Acquiror, as part of the resolution of the dispute by the Independent Accounting Firm, an amended Tax Return shall be agreed to by the parties consistent with the determination of the Independent Accounting Firm, and the Acquiror shall file such amended Tax Return agreed to by the parties. The costs, fees and expenses of the Independent Accounting Firm shall be borne equally by the Company and the Acquiror.

 

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(f) Information and Cooperation . Each of the Acquiror and the Company shall, and the Company shall cause its Subsidiaries to, (i) provide, or cause to be provided, the other with such assistance as may reasonably be requested by the other party in connection with the preparation of any Tax Return, any audit or other examination by any taxing authority, or any judicial or administrative proceedings relating to liability for Taxes with respect to the Transferred Assets, the Transferred Entities, or the Business, (ii) retain and provide the requesting party with any records or information which may be relevant to such return, audit or examination, proceedings or determination until the date that is six (6) years after the Closing Date, and abide by all record retention agreements entered into with any Taxing authority, and (iii) give to the other party reasonable written notice prior to transferring, destroying or discarding any such books and records and, if such other party so requests, the party will allow the other party to take possession of such books and records. Any information obtained pursuant to this Section 7.1(f) or pursuant to any other section hereof providing for the sharing of information or review of any Tax Return or other schedule relating to Taxes shall be kept confidential by the parties hereto.

(g)

(i) If a claim shall be made by any Tax Authority, which, if successful, might result in an indemnity payment to an indemnified party pursuant to this Agreement, then such indemnified party shall give notice to the indemnifying party in writing of such claim and of any counterclaim the indemnified party proposes to assert; provided, however, the failure to give such notice shall not affect the indemnification provided hereunder except to the extent the indemnifying party has been materially prejudiced as a result of such failure.

(ii) With respect to any claim by a Tax Authority with respect to a taxable period of any Transferred Entity or any of its Subsidiaries, or with respect to the Business or Transferred Assets, ending on or before the Closing Date, the Company shall control all proceedings and may make all decisions taken in connection with such Tax Authority claim (including selection of counsel) and, without limiting the foregoing, may in its sole discretion pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any taxing authority with respect thereto, and may, in its sole discretion, either pay the Tax claimed and sue for a refund where applicable law permits such refund suits or contest such Tax Authority claim in any permissible manner. Notwithstanding the foregoing, the Company shall not settle such claim by a Tax Authority without the prior written consent of Acquiror, which consent shall not be unreasonably withheld, and Acquiror, and counsel of its own choosing, shall have the right to participate fully in all aspects of the prosecution or defense of such claim by a Tax Authority if it reasonably determines that such Tax Authority claim could have a material adverse impact on the Taxes of the Acquiror or any of its Subsidiaries in a taxable period or portion thereof beginning after the Closing Date.

(iii) The Company and Acquiror shall jointly control and participate in all proceedings taken in connection with any Tax Authority claim relating to Taxes of any Transferred Entity or any of its Subsidiaries, or with respect to the Business or Transferred Assets, for a Straddle Period, and shall bear their own respective costs and expenses. Neither the Company nor Acquiror shall settle any such Tax Authority claim without the prior written consent of the other.

 

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(h) The amount or economic benefit of any refunds, credits or offsets of Taxes of any Transferred Entity or any of its Subsidiaries, or with respect to the Business or Transferred Assets, for any taxable period ending before the Closing Date, shall be for the account of the Company. The amount or economic benefit of any refunds, credits or offsets of Taxes of any Transferred Entity or any of its Subsidiaries, or with respect to the Business or Transferred Assets, for any taxable period beginning after the Closing Date shall be for the account of Acquiror. The amount or economic benefit of any refunds, credits or offsets of Taxes of any Transferred Entity or any of its Subsidiaries, or with respect to the Business or Transferred Assets, for any Straddle Period shall be equitably apportioned between the Company and Acquiror. Each party shall forward, and shall cause its Affiliates to forward, to the party entitled to receive the amount or economic benefit of a refund, credit or offset to Tax the amount of such refund, or the economic benefit of such credit or offset to Tax, within ten (10) days after such refund is received or after such credit or offset is allowed or applied against another Tax liability, as the case may be.

ARTICLE VIII

CONDITIONS TO CLOSING

SECTION 8.1 Conditions to Obligations of Each Party to Effect the Transactions . The respective obligations of each party to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or waiver, at or prior to the Closing, of each of the following conditions:

(a) No Governmental Order . There shall be no Governmental Order in existence that prohibits or materially restrains the sale of the Transferred Assets or the Stock Transfer, and there shall be no proceeding pending by any Governmental Entity seeking such a Governmental Order; provided , however , that prior to invoking this condition, the party invoking this condition shall have complied with its obligations under Section 5.4 ; and

(b) Governmental Approvals . Any waiting period (and any extension of such period) under the HSR Act applicable to the transactions contemplated by this Agreement shall have expired or shall have been terminated and no freeze order has been issued by the Mexican Federal Competition Commission under the Federal Law of Economic Competition, or, if a freeze order has been issued, approval shall have been obtained under the Federal Law of Economic Competition.

SECTION 8.2 Conditions to Obligations of the Acquiror to Effect the Transactions . The obligations of the Acquiror to consummate the transactions contemplated by this Agreement shall be further subject to the fulfillment or waiver by the Acquiror in its sole discretion, at or prior to the Closing, of each of the following conditions:

(a) Representations and Warranties . (1) The representations and warranties of the Company contained in Section 3.9(a) shall be true and correct as of the Closing, as though made on and as of the Closing, and (2) all of the other representations and warranties of the Company contained in this Agreement shall be true and correct (without giving effect to any limitation as to materiality or Material Adverse Effect set forth therein except for the limitation

 

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set forth in Section 3.6 ) as of the Closing, as though made on and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except where the failure of such other representations and warranties to be so true and correct (without giving effect to any limitation as to materiality or Material Adverse Effect set forth therein except for the limitation set forth in Section 3.6 ) has not had, and would not, individually or in the aggregate, reasonably be expected to have, a Material Adverse Effect, and the Acquiror shall have received a certificate signed by a duly authorized officer of the Company confirming the foregoing as of the Closing Date;

(b) Covenants. The Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by, or complied with by, it under this Agreement at or prior to the Closing, and the Acquiror shall have received a certificate signed by a duly authorized officer of the Company confirming the foregoing as of the Closing Date; and

(c) Ancillary Agreements . The Company shall have executed and delivered, or caused to be executed and delivered, to the Acquiror the Ancillary Agreements.

SECTION 8.3 Conditions to Obligations of the Company to Effect the Transactions . The obligations of the Company to consummate the transactions contemplated by this Agreement shall be further subject to the fulfillment or waiver by the Company in its sole discretion, at or prior to the Closing, of each of the following conditions:

(a) Representations and Warranties . The representations and warranties of the Acquiror that are qualified by materiality shall be true and correct in all respects, and the representations and warranties of the Acquiror contained in this Agreement that are not so qualified shall be true and correct in all material respects, in each case as of the Closing, as though made on and as of the Closing, except to the extent expressly made as of an earlier date, in which case as of such earlier date, and the Company shall have received a certificate signed by a duly authorized officer of the Acquiror confirming the foregoing as of the Closing Date;

(b) Covenants . The Acquiror shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by or complied with by it under this Agreement at or prior to the Closing, and the Company shall have received a certificate signed by a duly authorized officer of the Acquiror confirming the foregoing as of the Closing Date; and

(c) Ancillary Agreements . The Acquiror shall have executed and delivered, or caused to be executed and delivered, to the Company the Ancillary Agreements.

ARTICLE IX

TERMINATION, AMENDMENT AND WAIVER

SECTION 9.1 Termination . This Agreement may be terminated prior to the Closing:

(a) by the mutual written consent of the Company and the Acquiror;

 

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(b) by the Company, if the Acquiror shall have breached any representation or warranty or failed to comply with any covenant or agreement applicable to the Acquiror that would cause any of the conditions set forth in Section 8.3 not to be satisfied, and such condition is incapable of being satisfied or cured by the End Date; provided , however , that the Company is not then in material breach of this Agreement;

(c) by the Acquiror, if the Company shall have breached any representation or warranty or failed to comply with any covenant or agreement applicable to the Company that would cause any of the conditions set forth in Section 8.2 not to be satisfied, and such condition is incapable of being satisfied or cured by the End Date; provided , however , that the Acquiror is not then in material breach of this Agreement;

(d) by either the Company or the Acquiror if the Closing shall not have occurred by February 28, 2014 (the “ End Date ”); provided , that the right to terminate this Agreement under this Section 9.1(d) shall not be available to any party whose failure to take any action required to fulfill any obligation under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing to occur prior to such date; or

(e) by either the Company or the Acquiror in the event of the issuance of a final, nonappealable Governmental Order restraining or prohibiting the sale of the Transferred Assets or the Stock Transfer.

SECTION 9.2 Notice of Termination . Any party desiring to terminate this Agreement pursuant to Section 9.1 shall give written notice of such termination to the other party or parties, as the case may be, to this Agreement.

SECTION 9.3 Effect of Termination . In the event of the termination of this Agreement as provided in Section 9.1 , this Agreement shall forthwith become void and there shall be no liability on the part of any party to this Agreement, except (i) as set forth in Section 2.6(b) , the second sentence of Section 5.3(a) , and Article XI and (ii) no termination shall relieve any party hereto of any Liability to the other party hereto resulting from fraud or the willful breach by such party of any of its representations, warranties, covenants or other agreements set forth in this Agreement. For purposes of this Agreement, “willful breach” means a breach that is a consequence of an omission by, or act undertaken by or caused by, the breaching party with the knowledge (actual or constructive) that the omission or taking or causing of such act would, or would be reasonably expected to, cause a breach of this Agreement.

SECTION 9.4 Extension; Waiver . At any time prior to the Closing, either the Company or the Acquiror may (a) extend the time for the performance of any of the obligations or other acts of the other Person, (b) waive any inaccuracies in the representations and warranties contained in this Agreement or in any certificate or document delivered pursuant to this Agreement, or (c) waive compliance with any of the agreements or conditions contained in this Agreement but such waiver of compliance with such agreements or conditions shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. Any such extension or waiver shall be valid only if set forth in an instrument in writing expressly waiving or extending such agreement, condition, term or provision signed by the party granting such

 

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extension or waiver. Neither the waiver by any of the parties hereto of a breach of or a default under any of the provisions of this Agreement, nor the failure or delay by any of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder, shall be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder.

ARTICLE X

INDEMNIFICATION

SECTION 10.1 Indemnification by the Company . From and after the Closing, the Company shall indemnify, defend and hold harmless the Acquiror and its Affiliates (collectively, the “ Acquiror Indemnified Parties ”) against, and reimburse any Acquiror Indemnified Party for, all Losses that such Acquiror Indemnified Party may suffer or incur, or become subject to, as a result of (i) the ownership, operation or use of any of the Excluded Assets; (ii) any Excluded Liability; (iii) any breach or inaccuracy of any Fundamental Representation ( provided, however , that, for purposes of determining whether there has been a breach or inaccuracy of any Fundamental Representation and the amount of any Losses due to such breach or inaccuracy, all Material Adverse Effect qualifications, materiality qualifications and similar qualifications contained in such representations and warranties shall be disregarded (and, for the avoidance of doubt, Section 3.5(c)(5) shall be disregarded in its entirety)); or (iv) any breach of a covenant set forth in this Agreement by the Company or any of its Affiliates; provided, however , that notwithstanding the foregoing, (1) the Company shall not be liable to the Acquiror Indemnified Parties for indemnification under clause (iii) of this Section 10.1 for any individual claim for Losses with respect to any breaches or inaccuracies of any of the representations in Section 3.11 if the amount of Losses relating to such individual claim is less than $100,000 and the amount of such Losses shall not count for purposes of determining the amount set forth in clause (2), (2) the Company shall not be liable to the Acquiror Indemnified Parties for indemnification under clause (iii) of this Section 10.1 with respect to any breaches or inaccuracies of any of the Specified Fundamental Representations unless and until the aggregate amount of all Losses in respect of indemnification under such Specified Fundamental Representations exceeds $10,000,000, and then only to the extent of such excess and (3) the Company’s aggregate liability under clause (iii) of this Section 10.1 with respect to breaches or inaccuracies of the Specified Fundamental Representations shall not exceed $75,000,000.

SECTION 10.2 Indemnification by the Acquiror . From and after the Closing, the Acquiror shall indemnify, defend and hold harmless the Company and its Affiliates (collectively, the “ Company Indemnified Parties ”) against, and reimburse any Company Indemnified Party for, all Losses that such Company Indemnified Party may suffer or incur, or become subject to, as a result of (i) the ownership, operation or use of the Transferred Assets on or after the Closing Date; (ii) any Assumed Liability; (iii) any breach or inaccuracy of any Acquiror Fundamental Representation; or (iv) any breach of a covenant set forth in this Agreement by the Acquiror or any of its Affiliates.

SECTION 10.3 Notification of Claims .

 

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(a) A Person that may be entitled to be indemnified under this Agreement (the “ Indemnified Party ”), shall promptly notify the party or parties liable for such indemnification (the “ Indemnifying Party ”) in writing of any pending or threatened claim, demand or circumstance that the Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement (including a pending or threatened claim or demand asserted by a third party against the Indemnified Party, such claim being a “ Third Party Claim ”), describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim, demand or circumstance; provided , however , that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article X except to the extent the Indemnifying Party is materially prejudiced by such failure, it being understood that notices for claims in respect of a breach of a representation, warranty, covenant or agreement must be delivered prior to the expiration of any applicable survival period specified in Section 11.1 for such representation, warranty, covenant or agreement.

(b) Upon receipt of a notice of a claim for indemnity from an Indemnified Party pursuant to Section 10.3 , with respect to any Third Party Claim, the Indemnifying Party shall have the right (but not the obligation) to assume the defense and control of any Third Party Claim and, in the event that the Indemnifying Party assumes the defense and control of such claim, it shall allow the Indemnified Party a reasonable opportunity to participate in the defense of such Third Party Claim with its own counsel and at its own expense. The party that shall control the defense of any such Third Party Claim (the “ Controlling Party ”) shall select counsel, contractors and consultants of recognized standing and competence after consultation with the other party and shall take all steps reasonably necessary in the defense or settlement of such Third Party Claim. The Company or the Acquiror, as the case may be, shall, and shall cause each of its Subsidiaries and Representatives to, cooperate fully with the Controlling Party in the defense of any Third Party Claim. The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claim, without the consent of any Indemnified Party; provided , that the Indemnifying Party shall (i) pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement, (ii) not encumber any of the material assets of any Indemnified Party or agree to any restriction or condition that would apply to or materially adversely affect any Indemnified Party or the conduct of any Indemnified Party’s business and (iii) obtain, as a condition of any settlement or other resolution, a complete release of any Indemnified Party potentially affected by such Third Party Claim. For the avoidance of doubt, whether or not the Indemnifying Party has assumed the defense, such Indemnifying Party will not be obligated to indemnify the Indemnified Party hereunder for any settlement entered into or any judgment that was consented to without the Indemnifying Party’s prior written consent.

SECTION 10.4 Additional Indemnification Provisions . With respect to each indemnification obligation all Losses shall be net of any third-party insurance proceeds that have been recovered or are recoverable by the Indemnified Party in connection with the facts giving rise to the right of indemnification. The Acquiror and the Company shall not make any claim for indemnification under this Article X in respect of any matter that is taken into account in the calculation of any adjustment to the Purchase Price pursuant to Section 2.9 through Section 2.12 .

 

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SECTION 10.5 Mitigation . Each of the parties agrees to take all reasonable steps to mitigate their respective Losses upon and after becoming aware of any event or condition that would reasonably be expected to give rise to any Losses that are indemnifiable hereunder.

SECTION 10.6 Limitation on Liability . In no event shall any party have any liability to the other (including under this Article X ) for any consequential, special, incidental, indirect or punitive damages, lost profits or similar items (including loss of revenue, income or profits, diminution of value or loss of business reputation or opportunity relating to a breach or alleged breach hereof).

ARTICLE XI

GENERAL PROVISIONS

SECTION 11.1 Survival . The representations and warranties, covenants and agreements in this Agreement shall expire at the Closing, except for (i) the Fundamental Representations and the Acquiror Fundamental Representations which shall survive until the earlier of (x) eighteen (18) months after the Closing Date and (y) thirty (30) days after the completion and delivery of the audited annual financial statements of the Business for the first full fiscal year commencing after the Closing Date, (ii) the covenants and agreements of the parties hereto contained in this Agreement that by their terms apply or are to be performed in whole or in part after the Closing Date, which shall survive for the period provided in such covenants and agreements, if any, or until fully performed and (iii) this Article XI , which shall survive for so long as any other Section of this Agreement shall survive.

SECTION 11.2 Expenses . Except as may be otherwise specified in the Transaction Agreements, all costs and expenses, including fees and disbursements of counsel, financial advisers and accountants, incurred in connection with the Transaction Agreements and the transactions contemplated by the Transaction Agreements shall be paid by the Person incurring such costs and expenses, whether or not the Closing shall have occurred or this Agreement is terminated.

SECTION 11.3 Notices . All notices, requests, claims, demands and other communications under the Transaction Agreements 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 email or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 11.3):

 

  (i) if to the Company, to:

Del Monte Corporation

One Maritime Plaza

San Francisco, CA 94111

Attention: General Counsel

 

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Telephone: (415) 247-3567

Facsimile: (415) 247-3263

Email: Tim.Ernst@delmonte.com

with a copy to:

Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, NY 10017

Attention:    Marni J. Lerner

Telephone: (212) 455-2000

Facsimile:  (212) 455-2502

Email: mlerner@stblaw.com

 

  (ii) if to Parent or the Acquiror, to:

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

Email: camposjd@delmonte-phil.com

With copy to: Chief Legal Counsel

Facsimile: +632 856 2628

and with a copy to (which shall not constitute notice):

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

Email: jneveloff@kramerlevin.com

           psmith@kramerlevin.com

SECTION 11.4 Public Announcements . No party to this Agreement or Representative of such party shall issue or cause the publication of any press release or public announcement or otherwise communicate with any news media in respect of this Agreement or the Ancillary Agreements or the transactions contemplated by this Agreement or the Ancillary Agreements without the prior written consent of the other party (which consent shall not be unreasonably withheld or delayed), except as may be required by Law or stock exchange rules, in which case the party required to publish such press release or public announcement shall allow

 

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the other party a reasonable opportunity to comment on such press release or public announcement in advance of such publication, to the extent practicable. Notwithstanding anything herein to the contrary, the Company acknowledges and agrees that in connection with the Financing the Acquiror may publish the Required Financial Information in filings, reports or registration statements it files with the Securities and Exchange Commission.

SECTION 11.5 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 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.

SECTION 11.6 Entire Agreement . The Transaction Agreements constitute the entire agreement of the Company, on the one hand, and the Acquiror, on the other hand, with respect to the subject matter of the Transaction Agreements and supersede all prior agreements, undertakings and understandings, both written and oral, other than the Confidentiality Agreement, between or on behalf of the Company, on the one hand, and the Acquiror, on the other hand, with respect to the subject matter of the Transaction Agreements. The Confidentiality Agreement shall terminate upon the Closing.

SECTION 11.7 Assignment . This Agreement shall not be assigned by operation of Law or otherwise without the prior written consent of each of the other parties, except that the Acquiror may assign all or any of its rights and obligations hereunder to any direct or indirect Subsidiary of Parent; provided , however , that no such assignment shall relieve the Acquiror of its obligations hereunder.

SECTION 11.8 No Third-Party Beneficiaries . Except as provided in Article X with respect to the Company Indemnified Parties and the Acquiror Indemnified Parties, this Agreement is for the sole benefit of the parties to this Agreement and their permitted successors and assigns and nothing in this Agreement or any other Transaction Agreements, including Article VI hereto, express or implied, is intended to or shall confer upon any other Person, including any union or any employee or former employee of the Company or the Business, or entity any legal or equitable right, benefit or remedy of any nature whatsoever, including any rights of employment for any specified period, under or by reason of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, the Financing Sources (and their respective Affiliates) shall be express third-party beneficiaries of this Section 11.8 and Section 9.3 , Section 11.9 , Section 11.12 , Section 11.16 and Section 11.19 , and each of such Sections shall expressly inure to the benefit of the Financing Sources (and their respective Affiliates) and the Financing Sources (and their respective Affiliates) shall be entitled to rely on and enforce the provisions of such Sections.

 

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SECTION 11.9 Amendment . (a) No provision of this Agreement, including any Exhibits or Disclosure Schedules hereto, may be amended, supplemented or modified except by a written instrument making specific reference hereto or thereto signed by all the parties to such agreement. No consent from any Acquiror Indemnified Party or any Company Indemnified Party under Article X (other than the parties to this Agreement) shall be required in order to amend this Agreement.

(b) Notwithstanding anything to the contrary contained in this Agreement, this Section 11.9 and Section 9.3 , Section 11.8 , Section 11.12 , Section 11.16 and Section 11.19 (and any other provision of this Agreement to the extent an amendment, supplement, waiver or other modification of such provision would modify the substance of such Sections) and the definition of “Material Adverse Effect” may not be amended, supplemented, waived or otherwise modified without the prior written consent of the Financing Sources.

SECTION 11.10 Disclosure Schedule . Any disclosure with respect to any Section of the Disclosure Schedule, shall be deemed to be disclosed for other Sections of the Disclosure Schedule to the extent that such disclosure is reasonably sufficient so that the relevance of such disclosure would be reasonably apparent to a reader of such disclosure. Matters reflected in any Section of the Disclosure Schedule are not necessarily limited to matters required by this Agreement to be so reflected. Such additional matters are set forth for informational purposes and do not necessarily include other matters of a similar nature. No reference to or disclosure of any item or other matter in any Section of the Disclosure Schedule shall be construed as an admission or indication that such item or other matter is material or that such item or other matter is required to be referred to or disclosed in the Disclosure Schedule. Without limiting the foregoing, no such reference to or disclosure of a possible breach or violation of any Contract, Law or Governmental Order shall be construed as an admission or indication that breach or violation exists or has actually occurred. If at any time after the date hereof, either party discovers any asset, property, lease, right, interest, Contract or claim that (i) qualifies as a “Transferred Asset” but was inadvertently omitted from any schedule listing “Transferred Asset” items, and/or (ii) does not qualify as a “Transferred Asset” but was inadvertently included on any schedule listing “Transferred Asset” items, it shall notify the other party, and the parties shall promptly amend the applicable schedules and do all other acts necessary to effectuate and validate the parties’ respective ownership of and rights in such item, to be deemed effective as of the Closing Date.

SECTION 11.11 Specific Performance; Jurisdiction . The parties agree that, irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Therefore, in addition to any other right or remedy to which any party may be entitled at law or in equity, the obligations of the Company under this Agreement, including the Company’s obligation to sell the Shares and the Transferred Assets to the Acquiror, and the obligations of the Acquiror under this Agreement, including the Acquiror’s obligation to purchase and acquire the Shares and the Transferred Assets and assume the Assumed Liabilities from the Company, shall be enforceable by a decree of specific performance issued by any state or federal courts in the State of New York located in the borough of Manhattan in the City of New York, and appropriate injunctive relief may be applied for and granted in connection therewith, this being in addition to any other remedy to which such party is entitled at law or in equity. In addition, each of the parties hereto

 

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(i) irrevocably consents to submit itself to the exclusive jurisdiction, including personal jurisdiction, of any state or federal courts in the State of New York located in the borough of Manhattan in the City of New York in the event any dispute arises out of this Agreement or any of the transactions contemplated by this Agreement, (ii) irrevocably waives, to the fullest extent it may effectively do so under applicable Law, any objection that it may now or hereafter have to the laying of the venue of any suit, action or proceeding brought in any such court and any claim that any suit, action or proceeding brought in any such court has been brought in an inconvenient forum, (iii) agrees that it will not attempt to deny or defeat such jurisdiction by motion or other request for leave from any such court, (iv) agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court or tribunal anywhere in the world other than any state or federal courts in the State of New York located in the borough of Manhattan in the City of New York and it will not contest or attack the enforcement of any judgment entered into in any such court or tribunal in which enforcement is sought and (v) consents to service being made through the notice procedures set forth in Section 11.3 . Each of the Company and the Acquiror hereby agrees that service of any process, summons, notice or document by U.S. registered mail to the respective addresses set forth in Section 11.3 shall be effective service of process for any suit or proceeding in connection with this Agreement or the transactions contemplated hereby.

SECTION 11.12 Governing Law .

(a) This Agreement and each other Transaction 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.

(b) Notwithstanding anything in this Agreement to the contrary, the parties hereto agree that any claim, controversy or dispute any kind or nature (whether based upon contract, tort or otherwise) involving a Financing Source (or its Affiliates) that is in any way related to this Agreement, the other Transaction Agreements or any of the transactions contemplated hereby or thereby, including but not limited to any dispute arising out of or relating in any way to the Financing Commitments or the performance thereof or the transactions contemplated thereby, shall be governed by, and construed in accordance with, the laws of the State of New York without regard to conflict of law principles (other than sections 5 1401 and 5-1402 of the New York General Obligations Law).

(c) Notwithstanding anything in this Agreement to the contrary, each of parties hereto (i) agrees that it will not bring or support any action, cause of action, claim, cross-claim or third-party claim of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against the Financing Sources (or their respective Affiliates) in any way relating to this Agreement, the other Transaction Agreements or any of the transactions contemplated hereby or thereby, including but not limited to any dispute arising out of or relating

 

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in any way to the Financing Commitments or the performance thereof or the transactions contemplated thereby, in any forum other than exclusively in the U.S. District Court for the Southern District of New York or, if that court does not have subject matter jurisdiction, in any state or federal court located in the Borough of Manhattan in the City of New York (and appellate courts thereof), (ii) submits for itself and its property with respect to any such action, cause of action, claim, cross-claim or third-party claim to the exclusive jurisdiction of such courts, (iii) agrees that service of process, summons, notice or document by registered mail addressed to it at its address provided in Section 11.3 shall be effective service of process against it for any such action brought in any such court, and (iv) waives and hereby irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of, and the defense of an inconvenient forum to the maintenance of, any such action, cause of action, claim, cross-claim or third-party claim in any such court.

SECTION 11.13 Bulk Sales Laws . The Acquiror and the Company each hereby waive compliance by the Company with the provisions of the “bulk sales”, “bulk transfer” or similar Laws of any jurisdiction inside or outside the United States that may otherwise be applicable with respect to the sale of any of the Transferred Assets.

SECTION 11.14 Rules of Construction . Interpretation of the Transaction Agreements shall be governed by the following rules of construction: (a) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (b) references to the terms Article, Section, paragraph and Exhibit are references to the Articles, Sections, paragraphs and Exhibits to this Agreement unless otherwise specified; (c) the terms “hereof”, “herein”, “hereby”, “hereto”, and derivative or similar words refer to this entire Agreement, including the Disclosure Schedule and Exhibits hereto; (d) references to “$” shall mean U.S. dollars; (e) the word “including” and words of similar import when used in the Transaction Agreements shall mean “including without limitation,” unless otherwise specified; (f) the word “or” shall not be exclusive and shall have the meaning “and/or”; (g) references to “written” or “in writing” include in electronic form; (h) provisions shall apply, when appropriate, to successive events and transactions; (i) the headings contained in the Transaction Agreements are for reference purposes only and shall not affect in any way the meaning or interpretation of the Transaction Agreements; (j) the Company and the Acquiror have each participated in the negotiation and drafting of the Transaction Agreements and if an ambiguity or question of interpretation should arise, the Transaction Agreements shall be construed as if drafted jointly by the parties thereto and no presumption or burden of proof shall arise favoring or burdening either party by virtue of the authorship of any of the provisions in any of the Transaction Agreements; (k) any reference to “days” means calendar days unless Business Days are expressly specified; and (l) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded, if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day.

SECTION 11.15 Counterparts . Each of the Transaction Agreements may be executed in one or more counterparts, and by the different parties to each such agreement in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to any Transaction Agreement by facsimile or PDF via email shall be as effective as delivery of a manually executed counterpart of any such Agreement.

 

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SECTION 11.16 Waiver of Jury Trial . EACH PARTY HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, ANY OTHER TRANSACTION AGREEMENTS, THE FINANCING COMMITMENTS OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY, INCLUDING WITHOUT LIMITATION AGAINST ANY FINANCING SOURCES (OR THEIR RESPECTIVE AFFILIATES). EACH PARTY (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER TRANSACTION AGREEMENTS (AND THAT THE ACQUIROR HAS BEEN INDUCED TO ENTER INTO THE FINANCING COMMITMENTS AND THE TRANSACTIONS CONTEMPLATED THEREBY) BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 11.16 .

SECTION 11.17 Asset Transfers . In the event that the Acquiror receives any assets of the Company that are not intended to be transferred pursuant to the terms of this Agreement, whether or not related to the Business, Acquiror agrees to promptly return such assets to the Company at the Company’s expense. In the event that the Company fails to transfer any asset that is intended to be transferred pursuant to the terms of this Agreement, the Company shall promptly transfer such asset to Acquiror at the Company’s expense.

SECTION 11.18 No Recourse . This Agreement may not be enforced against, and no claims or causes of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement may be made against, any former, current or future director, officer, agent, Affiliate (other than the Company and its successors and permitted assignees), manager, assignee or employee of the Company (or any of its successors or permitted assignees), any former, current or future general or limited partner, manager, member or stockholder of the Company (or any of their successors or permitted assignees) or any Affiliate thereof (other than the Company and its successors and permitted assignees) or any former, current or future director, officer, agent, employee, Affiliate (other than the Company and its successors and permitted assignees), assignee, general or limited partner, stockholder, manager or member of any of the foregoing (other than the Company) (the foregoing Persons, other than the Company and their successors and permitted assignees, collectively, the “ Company Protected Parties ”), none of the Company Protected Parties shall have any liability for any obligations or liabilities of the Company or any Affiliate under this Agreement or for any claims based on, or by reason of, the transactions contemplated by this Agreement and in no event shall Acquiror or any of its Affiliates, and the Acquiror agrees not to and to cause its Affiliates not to, seek to enforce this Agreement against, make any claims for breach of this Agreement against, or seek to recover monetary damages from any Company Protected Party.

 

82


SECTION 11.19 No Recourse Against Financing Sources . Notwithstanding anything to the contrary contained herein, the Company shall not have any rights or claims against any Financing Source (or its Affiliates) in connection with this Agreement, the other Transaction Agreements, the Financing Commitments or the transactions contemplated hereby or thereby, and no Financing Source (or its Affiliates) shall have any rights or claims against the Company in connection with this Agreement, the other Transaction Agreements, the Financing Commitments or the transactions contemplated hereby or thereby, whether at law or equity, in contract, in tort or otherwise; provided that, following the consummation of the transactions contemplated hereby on the Closing Date, the foregoing will not limit the rights of the parties to the Financing Commitments under any commitment letter related thereto. In addition, in no event will any Financing Source (or its Affiliates) be liable for consequential, special, exemplary, punitive or indirect damages (including any loss of profits, business or anticipated savings) or damages of a tortious nature.

SECTION 11.20 Parent Guarantee and Undertaking .

(a) Parent hereby guarantees unconditionally the payment and performance of all of the Acquiror’s obligations and agreements under this Agreement, including, without limitation, any obligation of Acquiror with respect to any claim brought by the Company 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 the Company to institute or exhaust any remedies or causes of action against the Acquiror or any other Person as a condition to the obligations of Parent hereunder. Parent agrees that the provisions of this Article XI , including, without limitation, Section 11.11 and Section 11.12 , shall apply to Parent mutatis mutandis.

(b) Parent agrees to take all actions to schedule and convene, as promptly as reasonably practicable, a meeting of its shareholders for the purpose of approving this Agreement, the transactions contemplated hereby and any and all other actions in connection therewith for which a vote of the shareholders of Parent is required.

[ THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK ]

 

83


IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date first written above by their respective duly authorized officers.

 

DEL MONTE CORPORATION
By   /s/ David J. West
Name:   David J. West
Title:   Chief Executive Officer
DEL MONTE FOODS CONSUMER PRODUCTS, INC.
By   /s/ Ignacio C. O. Sison
Name:   Ignacio C. O. Sison
Title:   Vice President
Solely for purposes of Section 11.20:
DEL MONTE PACIFIC LIMITED
By   /s/ Ignacio C. O. Sison
Name:   Ignacio C. O. Sison
Title:   Chief Financial Officer

Exhibit 10.4

 

LOGO      

One Maritime Plaza

P.O. Box 193575

San Francisco, CA 94119-3575

415-247-3000

October 18, 2013

Mr. Nils Lommerin

301 Mission Street

Unit PHI-D

San Francisco, CA 94105

 

Re: Transition Support Agreement

Dear Nils:

In connection with the agreement dated October 9, 2013, among Del Monte Corporation (the “Company”), Del Monte Pacific Limited (“Pacific”) and Del Monte Foods Consumer Products, Inc., to sell the Company’s Consumer Products business to Pacific (the “Transaction”), this letter agreement is intended to memorialize the terms of your continued employment by the Company, which terms shall be in effect beginning October 18, 2013 (“Transition Date”) and through the closing date of the Transaction (“Closing Date”).

 

1. Transition Services. During the period commencing on the Transition Date and terminating on the Closing Date (the “Transition Period”), you will remain employed by the Company as the Chief Operations Officer of the Company, but you will spend your full business time and attention assisting Pacific with any appropriate matters related to the closing and financing of the Transaction, provided that your duties, responsibilities and authority during the Transition Period shall be at the direction of the appropriate officers of Pacific. During the Transition Period, the Employment Agreement between you and the Company, dated September 1, 2004 and amended as of August 1, 2007, (the “Employment Agreement”), will continue in full force and effect in accordance with the terms set forth therein, except as otherwise modified by this letter agreement, and your compensation and benefits as of the Transition Date will remain intact, subject to the terms of the applicable agreements. During the Transition Period, the Company will provide you with suitable office space as mutually agreed (outside of One Maritime Plaza) at which to carry out your duties hereunder. Notwithstanding anything to the contrary in the Employment Agreement, in no event shall the changes in your duties, responsibilities or authorities, or any other changes to your employment as described herein, prior to the Target Date, as defined below, constitute “good reason” under the Employment Agreement or any other compensation or benefit plan in which you participate.

 

2. Termination of Transition Period. If the Closing Date occurs on or before March 1, 2014 (or such later date as mutually agreed by Pacific and the Company; the “Target Date”) and you are offered the position of Chief Executive Officer of the Consumer Products business (or comparable position), you agree to resign from the Company effective on the Closing Date with no right to severance and that such resignation shall not constitute resignation for “good reason” under any applicable plan or arrangement. If the Closing Date does not occur on or prior to the Target Date or the Closing Date occurs on or prior to the Target Date, but you are not offered the position of Chief Executive Officer of the Consumer Products business (or comparable position) as of the


 

Page No. 2

 

  Closing Date, then the terms of your employment with the Company and the Employment Agreement will remain intact in accordance with their current terms, and your position and responsibilities as of October 18, 2013. During the Transition Period, you are permitted to negotiate, and execute, with Pacific the terms of an employment agreement for the position of Chief Executive Officer of the Consumer Products business (or comparable position), provided that commencement of employment under such employment agreement is contingent on the closing of the Transaction. Such negotiation will not violate the terms of your employment with the Company or the Employment Agreement, nor will you be considered to have resigned from the Company as a result of any such negotiation.

 

3. Entire Agreement. You and the Company acknowledge and represent that this letter agreement and the Employment Agreement contain the entire understanding between you and the Company related to your duties for the Company during the Transition Period and the termination thereof. You and the Company acknowledge that the terms of this letter agreement are contractual and not a mere recital. Any modification to this letter agreement must be in writing and signed by you and the Company.

 

4. Equity. In the event of your resignation on the Closing Date to accept the position of Chief Executive Officer of the Consumer Products business (or comparable position), your equity will remain subject to the rules of the Company’s equity plans, and related agreements, provided, however, that (i) any share repurchase shall be priced at the Fair Market Value as of the Repurchase Calculation Dates (as such terms are defined in the applicable equity agreements), rather than at a discount thereto, and (ii) a portion of the number of your time vested options that would have vested in the third tranche will nonetheless vest on the basis of the number of such options multiplied by a fraction equal to the number of days from the last vesting date to the Closing Date divided by 365.

 

5. Governing Law and Forum. This letter agreement shall be construed in accordance with, and be deemed governed by, the laws of the State of California. The venue for any lawsuit or action arising out of or relating to this letter agreement or your employment shall be in San Francisco, California. You agree to continue to act in accordance with all applicable laws and subject to your existing obligations regarding disclosure of confidential information.

 

6. Counterparts. This letter agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original and such counterparts shall together constitute one and the same agreement.

If you agree with the terms of this letter agreement, please sign and date below.

Sincerely,

David J. West

President and Chief Executive Officer, Del Monte Corporation

Agreed and accepted:

 

/s/ Nils Lommerin     10-18-13
Nils Lommerin     Date

Exhibit 10.5

Del Monte Corporation

Independent Director Compensation Plan

October 25, 2013

Purpose

This Independent Director Compensation Plan is intended to promote the interests of Del Monte Corporation (Company) by providing the eligible directors of the Company with incentives and rewards that encourage superior management, growth and protection of the business of the Company. The compensation provided hereunder is in recognition of service as a member of the Board of Managers of Blue Holdings GP, LLC, which is the general partner of Blue Holdings I, L.P. (BHLP), as well as a member of the Boards of Directors of BHLP’s subsidiaries, Blue Acquisition Group, Inc. (BAG) and the Company (collectively, Boards).

Eligibility

Eligibility shall, in each case, be determined by the Board of Directors of the Company (DMC Board) and generally include directors who are not employees of the Company and not employed by or otherwise affiliated with Kohlberg Kravis Roberts & Co. L.P., Vestar Capital Partners, Centerview Capital, L.P., AlpInvest Partners, or any of such entities’ affiliates.

Annual Cash Retainers

Directors will receive a $50,000 annual retainer (Retainer). Payment of the Retainer will be made in cash in arrears on a quarterly basis as soon as practicable after the end of each calendar quarter (pro-rated for any portion of a calendar quarter during which the director commenced or terminated service as a director). For the avoidance of doubt, this Retainer is paid in respect of all service on all of the Boards.

A director may elect, on a quarterly basis, to receive shares of BAG common stock (BAG Stock) in lieu of the cash Retainer with respect to such quarter. The number of shares of BAG Stock such director will receive in payment of the portion of the Retainer attributable to a particular quarter shall equal the quotient obtained by dividing (x) the amount of such portion of the Retainer by (y) the fair market value of a share of BAG Stock as of the last day of such calendar quarter, rounded down to the nearest full share. No fractional shares will be issued. Elections with respect to quarters subsequent to the first quarter of service will be due prior to the last business day of the preceding quarter. Elections will continue in effect until revoked. The DMC Board may in the future impose additional conditions, in its discretion, on the ability to elect payment in BAG Stock in lieu of the cash Retainer.

Equity Compensation

In connection with the initial appointment to the Boards, and on an annual basis, eligible directors will receive restricted shares of BAG Stock having an aggregate fair market value, as of the grant date, equal to $100,000, subject to monthly vesting over a twelve-month period. The


grant with respect to the initial appointment will be made effective as of the first day of service, with subsequent grants to be made effective as of each yearly anniversary thereafter. Eligible directors will also be given the opportunity to purchase, within three months of the effective date of appointment to the Boards, shares of BAG Stock, in an aggregate amount determined at the director’s discretion. In all cases (i.e., in respect of the grants and purchase of BAG Stock, as applicable), such common stock shall have a per share value equal to the grant date fair market value as determined by the BAG Board of Directors pursuant to the applicable grant or purchase documents. In connection with the foregoing, each director will be required to enter into a Stockholder’s Agreement as well as a Sale Participation Agreement, which agreements will govern the terms of the equity participation in BAG.

Taxes

Directors will have full responsibility, and none of BAG or any of its subsidiaries or affiliates shall have any responsibility, for satisfying any liability for any federal, state or local income or other taxes required by law to be paid with respect to any compensation paid hereunder or in respect of any equity incentive awards received from BAG.

Travel Reimbursement

A director who is required to travel in connection with any Board or committee meeting or any other approved related business will be reimbursed for his or her reasonable travel, meal and lodging expenses pursuant to our expense reimbursement policy in effect from time to time. Reimbursement requests should be submitted to Del Monte Corporation, Attn: Katherine Manning, PO Box 193575, San Francisco, CA 94119-3575. In addition, all directors are covered by director and officer insurance and fully indemnified for all of his or her Board service to the extent permitted by applicable law.

Amendments or Modifications

The DMC Board may, at any time, amend or modify this plan in whole or in part, subject to all other necessary approvals.

 

2

Exhibit 10.6

 

Certain portions of this agreement, for which confidential treatment has been requested, have been omitted and filed separately with the Securities and Exchange Commission. Sections of the agreement where portions have been omitted have been identified in the text.

7 th AMENDMENT

RESTATED DEL MONTE FOODS

RETAIL BROKERAGE AGREEMENT

This Seventh Amendment (“7 th Amendment”) dated February 15, 2013 shall amend the Restated Del Monte Foods Retail Brokerage Agreement dated November 22, 2008 and subsequently amended on May 4, 2009, September 22, 2009, January 26, 2010, May 1, 2010, August 11, 2010, February 10, 2011, and January 6, 2012 (the “Agreement”), by and between Del Monte Corporation , a corporation with its main business office at One Maritime Plaza , San Francisco, California 94111 (the “Client”) and Advantage Sales & Marketing LLC, a limited liability company with its main business office at 18100 Von Karman Avenue, Suite 900, Irvine, CA 92612 (“Broker”).

WHEREAS , the parties desire to amend the Agreement to revise Attachments B-1E, B-2E, and C-1  per edits attached.

NOW, THEREFORE , in acknowledgement of good and valuable consideration, the sufficiency of which is acknowledged, the parties agree to add to the Agreement as follows:

 

1. Attachment B-1F : The parties agree to replace the current “Attachment B-1E” in its entirety with a new “Attachment B-1F” as contained herein, effective February 15, 2013.

 

2. Attachment B-2F : The parties agree to replace the current “Attachment B-2E” in its entirety with a new “Attachment B-2F” as contained herein, effective February 15, 2013.

 

3. Attachment C -2: The parties agree to replace the current “Attachment C-1” in its entirety with a new “Attachment C-2” as contained herein, effective February 15, 2013.

 

4. No Other Change : Except as modified by the 7 th Amendment, the Agreement will remain in full force and effect as set forth herein.

IN WITNESS WHEREOF , the parties hereto have caused this 7 th Amendment to be executed by their duly authorized representatives as of the date first above written.

 

ADVANTAGE SALES & MARKETING LLC      DEL MONTE CORPORATION
By:   /s/ Mike Salzberg      By:    /s/ Tim Cole
Name:   Mike Salzberg      Name:    Tim Cole
Title:   President & COO      Title:    Executive Vice President
Date:   2/15      Date:   


ATTACHMENT B-1F

DEL MONTE FOODS CORPORATION

RETAIL GROCERY BROKERAGE AGREEMENT

EFFECTIVE FEBRUARY 15, 2013

Applicable Brokerage Rates/Classes of Trade/Other Compensation

Brokerage Commissions shall be computed where applicable on the billed sales to the customers and classes of trade set forth below. Effective as of the Effective Date and subject to the exclusions set forth herein, Brokerage Commissions shall be paid at the commission rates set forth below applied to Client’s adjusted base delivered price ( see provision 2 of Agreement). Commission rates and/or other payments for services under this Agreement may be amended upon mutual agreement by the parties in writing.

 

A .   Del Monte Brands, Del Monte Pet Products,
College Inn Broth, Produce
   Applicable Base
Brokerage Rate
  (except as indicated on Attachment B-2F)   
  I.    Retail Grocery Customers   
    

•   Center Store (HQ)

   [***]*
    

•   Produce (HQ)

   [***]*
    

•   Hawaii (Center Store and Produce – Full Service)

   [***]*
  II.    Drug Stores    [***]*
  III.    Convenience Stores    [***]*
  IV.    Sporting Goods    [***]*
  V.    Minor Mass    [***]*
  VI.    Specialty Distributors    [***]*
  VII.    Administrative Support Customers    [***]*

Bonuses, if applicable, shall be paid at rates mutually agreed upon by the parties.

B.     Dedicated Retail Team . In addition to the brokerage rates set forth above, Broker shall be paid a lump sum payment of $[***] * monthly ($[***] * annually) for Dedicated Retail Team (DRT) services in the grocery channel. Services provided by the DRT shall consist of customary dedicated retail services including the following:

Retail Distribution Management

New Product Distribution

Schematic Integrity

Merchandising

Retail Audits

Retail Call Reporting (Date and Location of Retail Calls)

 

*   CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION


The DRT shall perform services for all Client customers in the grocery channel (including the national retailers directly serviced by Client (identified on Attachment C-2 hereto) and those retail grocery accounts managed by Louis F. Leeper Company), as defined in the agreed deployment model. Note: ASM’s “syndicated” retail services may be used periodically at a rate of $[***] * capped at Del Monte’s discretion.

C. In-Store Execution/Reset Activity . Client shall pay to Broker a monthly payment for all grocery channel in-store execution and reset activity based on (i) actual labor support supplied during a month (at Broker’s published retail service rates), and (ii) to the extent applicable, Client’s pro-rata share of customer charges for in-store execution/reset activity. Broker in-store execution/reset activity shall be performed in accordance with plans and budgets approved in advance by Client. Broker shall submit a detailed invoice for in-store execution/reset activity to Client by the fifteenth day of the month following the month in which such services were performed. All charges set forth in such invoice shall be substantiated by reasonable supporting documentation or records. Payment for In-Store Execution/Reset Activity shall be billed at $[***] * and capped at $[***] * per Client fiscal year. Fixed budgets to include Grocery Produce.

D. Development Projects/Surge. As directed by Client and agreed to by Broker. To be paid on a per-project basis at a rate of $[***] * .

E. Other Services . Broker shall perform such other services as specified by Client at rates and subject to terms mutually agreed to by Client and Broker.

F. Walmart Retail Coverage – All Formats

 

  1. Retail Calls
       (Covering Del Monte Brands, Del Monte Pet Products, College Inn Broth, Produce)

 

  A. Frequency – [***] *                          $[***] *

 

     Duration derived by format, sku count, and call attainment goals)

 

  B. Smart Goals as mutually agreed by the parties

 

  2. CDM / Analyst Expense

 

  3. Store Set Up
       New Store and Existing Stores as mutually agreed by the parties

G. Back Office Support Services

 

   Expectations and compensation as mutually agreed by the parties. Included but not limited to:

 

    Direct team customer support (eg. CDM)

 

    Category management

 

    Space management

 

    Administrative support

 

*   CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION


ATTACHMENT B-2F

EXCLUSIONS

DEL MONTE FOODS CORPORATION

RETAIL GROCERY BROKERAGE AGREEMENT

EFFECTIVE FEBRUARY 15, 2013

Broker shall not receive brokerage commissions on sales of Client’s products to the following customers unless they are specifically designated on Attachment C-2 :

Direct Mass Merchandising

Walmart (All Formats, including but not limited to Super Center, Division I, and Neighborhood Markets)

National Retailers

Kroger (Coordinated and Non-Coordinated)

Safeway

Publix

Delhaize

Meijer

HEB

K-Mart

Ahold

Target

Leeper Customers

Those customers in the Pittsburgh/Cleveland territory serviced by Louis F Leeper Co. and its affiliates

Drug Stores

See Attachment C-2 for breakdown of Full Commission and Admin Support Only

Other

Dollar Stores

Club Stores

Pet Specialty

Institutional (except for food service items ordered by covered retail customers, as agreed by Client)

Government and Military

Private Label

Vending

Food Ingredients

Export

As set forth herein

Produce

No commission payable with respect to those markets identified on Attachment B-2F


ATTACHMENT B-2F

EXCLUDED PRODUCE MARKETS

Oklahoma

Kansas City

Chicago

Milwaukee

Newell

Buffalo

Cleveland

Pittsburgh

Salt Lake City

Phoenix

San Francisco

Brokerage Split Policy: Regional broker has HQ responsibility. ASM has retail responsibility only (Paid as part of DRT monthly lump-sum)

Portland Market

Customer Code: 160749 – Unified Western Grocers, Modesto CA

Customer Code: 160329 – Winco Foods, Salem OR

Customer Code: 160677 – United Salad Co, Portland OR

Seattle Market

Customer Code: 167837 – Associated Grocers, Seattle WA (Unified Grocers)

Customer Code: 160689 – Charlie’s Produce, Seattle

Spokane Market

Customer Code: 160690 – Peirone’s Produce Co, Spokane

Customer Code: 160620 – Spokane Produce Inc, Spokane

Boise Market

Customer Code: 160020 – Albertson’s Distribution (IMW – SV)

Customer Code: 160018 – Albertson’s Distribution (IMW – SV)

Customer Code: 134006 – Albertson’s Distribution (IMW – SV)

Dallas Market

Customer Code: 160009 – Affiliated Foods Inc, Amarillo

Customer Code: 165977 – American Produce & Vegetable, Dallas

Customer Code: 100123 – Associated Wholesale Grocers, Kansas City

Customer Code: 160051 – Brookshire Grocery Company, Tyler

Customer Code: 160461 – United Supermarkets, LLC Lubbock


ATTACHMENT B-2F

Houston Market

Customer Code: 160049 – Brenham Wholesale, Brenham

Customer Code: 160050 – Brookshire Brothers, Lufkin

Customer Code: 160135 – Grocers Supply, Houston

Customer Code: 160583 – Houston Fruitland Inc, Houston

Customer Code: 167878 – Cox’s Foodarama

Customer Code: 167829 – Sellers Bros Inc

SuperValu Independent Market (Atlanta)

Customer Code: 160158 – SuperValu Inc. – Quincy, FL

Customer Code: 160464 – SuperValu Inc. – Anniston, AL

Customer Code: 160477 – SuperValu Inc. – Hammond/Indianola, MS


ATTACHMENT C-2

INCLUSIONS

DEL MONTE FOODS CORPORATION

RETAIL GROCERY BROKERAGE AGREEMENT

Items: Del Monte Brands, Del Monte Pet Products, College Inn Broth, Produce

Channel: Retail Grocery Customers (except those identified in Attachment B-2F)

All direct-buying customers in the following markets:

 

LOS ANGELES    A&P/PATHMARK
SAN FRANCISCO    BALTIMORE/WASHINGTON
DALLAS    HARRISBURG
HOUSTON    NEW YORK
WEST TEXAS    NEW YORK/NY METRO A/O
PHOENIX    BUFFALO/ROCHESTER
PORTLAND/SEATTLE    CHARLOTTE
SALT LAKE CITY    NASHVILLE/KNOXVILLE
HAWAII    MIAMI
KANSAS CITY    NEW ORLEANS
DES MOINES/OMAHA    JACKSONVILLE
CHICAGO    GREENVILLE
NASH FINCH (w/ KMART)    BIRMINGHAM
DETROIT    ALBANY
GRAND RAPIDS    BOSTON
INDY/LOUISVILLE    C&S INDIRECTS
ST. LOUIS    C&S NORTHEAST
SUPERVALU MW/SE REG   
SUPERVALU NORTH/NW REG   
SUPERVALU EASTERN REG   
SUPERVALU RETAIL (excl SHAWS)   
SHAWS   
SAVE-A-LOT   

Channel: Produce Grocery Customers (except those identified in Attachment B-2F)

 

INDIANAPOLIS-PRODUCE    DES MOINES-PRODUCE
NEW ORLEANS-PRODUCE    ST LOUIS-PRODUCE
ALBANY-PRODUCE    L A-PRODUCE
BOSTON-PRODUCE    DETROIT-PRODUCE
NEW YORK-PRODUCE    GRAND RAPIDS-PRODUCE
SYRACUSE-PRODUCE    MINNEAPOLIS – PRODUCE
BIRMINGHAM-PRODUCE    NASH FINCH – PRODUCE
CHARLOTTE-PRODUCE   
FLORIDA-PRODUCE   
PHILADELPHIA-PRODUCE   
RICHMOND-PRODUCE   
WINN DIXIE-PRODUCE   


Channel: Drug Stores - Full Headquarter support only at [***] * (except as specifically indicated below as Administrative Support Only)

All direct buying customers below in the following markets:

 

A/O DRUG
CHAIN DRUG

Channel: Drug Stores - Administrative Support Only at [***] *

All direct buying customers in the following markets:

 

BEYER FARMS INC

CVS DRUG STORES

LOWE’S COMPANIES INC

RITE AID

WALGREENS*

*Walgreens #19 Maspeth location was purchased from Duane Reade and supplies only Duane Reade stores and receives [***] * commission for this location only, all other Walgreens is the admin support only rate of [***] *

Channel: Convenience Stores

All direct buying customers in the following markets:

 

C-STORE (BIG 4)
A/O C-STORE

Channel: Sporting Goods

All direct buying customers in the following markets:

 

Sports Authority
RC Wiley
WS Badcock
Dick’s Sporting Goods
Academy
Bass Pro Shops,
Sportsman’s Warehouse
Sports Chalet
Big 5
Hibbett Sports
Cabelas
MC Sport
Dunhams
Gander Mountain
Liberty Distribution Company
Vistar

Channel: Channels Other

All direct buying customers in the following markets:

 

REGIONAL MASS
SPECIALTY DIST.

 

*   CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION

Exhibit 31.1

Certification

I, David J. West, certify that:

 

  1. I have reviewed this Quarterly Report on Form 10-Q of Del Monte Corporation;

 

  2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

  3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

  4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)), for the registrant and have:

 

  a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

  5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: December 9, 2013       /s/ David J. West
      David J. West
      President and Chief Executive Officer; Director

Exhibit 31.2

Certification

I, Larry E. Bodner, certify that:

 

  1. I have reviewed this Quarterly Report on Form 10-Q of Del Monte Corporation;

 

  2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

  3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

  4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)), for the registrant and have:

 

  a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

  5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: December 9, 2013       /s/ Larry E. Bodner
      Larry E. Bodner
      Executive Vice President,
      Chief Financial Officer and Treasurer

Exhibit 32.1

Certification

Pursuant to the requirements set forth in Rule 13a-14(b) of the Securities Exchange Act of 1934, as amended, and Section 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. 1350), the undersigned, in his capacity as the Chief Executive Officer of Del Monte Corporation, hereby certifies that, to the best of his knowledge:

 

  1. The quarterly report of Del Monte Corporation on Form 10-Q for the period ended October 27, 2013, to which this certification is attached as Exhibit 32.1 (the “Periodic Report”), fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and

 

  2. The information contained in the Periodic Report fairly presents, in all material respects, the financial condition and results of operations of Del Monte Corporation at the end of and for the period covered by the Periodic Report.

 

Date: December 9, 2013       /s/ David J. West
      David J. West
      President and Chief Executive Officer; Director

This certification accompanies and is being “furnished” with this Periodic Report, shall not be deemed “filed” by Del Monte Corporation (the “Company”) for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to liability under that Section and shall not be deemed to be incorporated by reference into any filing of the Company under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, whether made before or after the date of this Periodic Report, irrespective of any general incorporation language contained in such filing. A signed original of this written statement required by Section 906 has been provided to Del Monte Corporation and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.

Exhibit 32.2

Certification

Pursuant to the requirements set forth in Rule 13a-14(b) of the Securities Exchange Act of 1934, as amended, and Section 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. 1350), the undersigned, in his capacity as the Chief Financial Officer of Del Monte Corporation, hereby certifies that, to the best of his knowledge:

 

  1. The quarterly report of Del Monte Corporation on Form 10-Q for the period ended October 27, 2013, to which this certification is attached as Exhibit 32.2 (the “Periodic Report”), fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and

 

  2. The information contained in the Periodic Report fairly presents, in all material respects, the financial condition and results of operations of Del Monte Corporation at the end of and for the period covered by the Periodic Report.

 

Date: December 9, 2013       /s/ Larry E. Bodner
      Larry E. Bodner
      Executive Vice President,
      Chief Financial Officer and Treasurer

This certification accompanies and is being “furnished” with this Periodic Report, shall not be deemed “filed” by Del Monte Corporation (the “Company”) for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to liability under that Section and shall not be deemed to be incorporated by reference into any filing of the Company under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, whether made before or after the date of this Periodic Report, irrespective of any general incorporation language contained in such filing. A signed original of this written statement required by Section 906 has been provided to Del Monte Corporation and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.