Exhibit 10.1
Conformed Copy
TRANSACTION ADVISORY AGREEMENT
THIS TRANSACTION ADVISORY AGREEMENT (this "Agreement")
is made and entered into as of April 18, 1997, between Del Monte
Corporation, a New York corporation (the "Company"), and TPG
Partners, L.P., a Delaware limited partnership (together with its
successors, "TPG").
WHEREAS, TPG and certain of its affiliates are,
concurrently with the execution of this Agreement, engaging in a
recapitalization of the Company (the "Recapitalization");
WHEREAS, TPG has rendered financial advisory services
in connection with the negotiation of the Recapitalization and
the debt and equity financing transactions related thereto
(collectively with the Recapitalization, the "Transaction"); and
WHEREAS, the Company has requested that TPG render
financial advisory and other similar services to the Company with
respect to any future proposals for a tender offer, acquisition,
sale, merger, exchange offer, recapitalization, restructuring, or
other similar transaction directly or indirectly involving the
Company, or any of its subsidiaries, and any other person or
entity (collectively, "Add-on Transactions");
NOW, THEREFORE, in consideration of the services
rendered and to be rendered by TPG and to evidence the
obligations of the Company to TPG and the mutual covenants herein
contained, the Company and TPG hereby agree as follows:
1. Retention.
(a) The Company hereby acknowledges that it has
retained TPG for the benefit of the Company, and TPG acknowledges
that it has acted as financial advisor to the Company in
connection with the Transaction.
(b) The Company hereby retains TPG as the
exclusive financial advisor in connection with any Add-on
Transactions that may be consummated during the term of this
Agreement, and agrees that the Company will not retain any other
person or entity to provide such services in connection with any
such Add-on Transaction without the prior written consent of TPG.
TPG agrees that it shall provide such financial advisory,
investment banking, and other similar services in connection with
any such Add-on Transaction as may be requested from time to time
by the Board of Directors of the Company.
2. Term. The term of this Agreement shall continue
until the earlier to occur of (i) the tenth anniversary of the
date hereof or (ii) the date on which TPG and its affiliates
cease
to own beneficially, directly or indirectly, at least twenty-five
percent of the voting power of the securities of Del Monte Foods
Company, a Maryland corporation, or its successors.
3. Compensation.
(a) As compensation for TPG's services as
financial advisor to the Company in connection with the
Transaction, the Company hereby irrevocably agrees to pay to TPG
a cash fee of $8,400,000 to be paid at the closing of the
Transaction.
(b) As compensation for TPG's financial advisory
and other similar services rendered in connection with any Add-on
Transaction pursuant to Section 1(b) hereof, the Company shall
pay to TPG, at the closing of any such Add-on Transaction, a cash
fee in the amount of 1.5% of the Transaction Value of such Add-on
Transaction. As used herein, the term "Transaction Value" means
the total value of the Add-on Transaction, including, without
limitation, the aggregate amount of the funds required to
complete the Add-on Transaction (excluding any fees payable
pursuant to this Section 3(b)), including the amount of any
indebtedness, preferred stock or similar items assumed (or
remaining outstanding).
(c) Any or all of the fees provided for in this
Section 3 may be waived in full or in part by TPG in its sole and
absolute discretion.
4. Reimbursement of Expenses. In addition to the
compensation to be paid pursuant to Section 3 hereof, the Company
agrees to reimburse TPG, promptly following demand therefor,
together with invoices or reasonably detailed descriptions
thereof, for all reasonable disbursements and out-of-pocket
expenses (including fees and disbursements of counsel and
accountants) incurred by TPG (i) as financial advisor to the
Company in connection with the Transaction or (ii) in connection
with the performance by it of the services contemplated by
Section 1(b) hereof.
5. Indemnification. The Company shall indemnify and
hold harmless each of TPG, its affiliates, and their respective
directors, officers, controlling persons (within the meaning of
Section 15 of the Securities Act of 1933 or Section 20(a) of the
Securities Exchange Act of 1934), if any, agents and employees
(TPG, its affiliates, and such other specified persons being
collectively referred to as "Indemnified Persons" and
individually as an "Indemnified Person") from and against any and
all claims, liabilities, losses, damages and expenses incurred by
any Indemnified Person (including those resulting from the
negligence of the Indemnified Person and fees and disbursements
of the respective Indemnified Person's counsel) which (A) are
related to or arise out of (i) actions taken or omitted to be
taken (including any untrue statements made or any statements
omitted to be made) by the Company or (ii) actions taken or
omitted to be taken by an Indemnified Person with the Company's
consent or in conformity with the Company's instructions or the
Company's actions or omissions or (B) are otherwise related to or
arise out of TPG's engagement, and will reimburse each
Indemnified Person for all costs and expenses, including fees of
any Indemnified Person's counsel, as they are incurred, in
connection with investigating, preparing for, defending, or
appealing any action, formal or informal claim, investigation,
inquiry or other proceeding, whether or not in connection with
pending or threatened litigation, caused by or arising out of or
in connection with TPG's acting pursuant to
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the engagement, whether or not any Indemnified Person is named as
a party thereto and whether or not any liability results
therefrom. The Company will not however, be responsible for any
claims, liabilities, losses, damages, or expenses pursuant to
clause (B) of the preceding sentence that have resulted primarily
from TPG's gross negligence or willful misconduct. The Company
also agrees that neither TPG nor any other Indemnified Xxxxxx
shall have any liability to the Company for or in connection with
such engagement except for any such liability for claims,
liabilities, losses, damages, or expenses incurred by the Company
that have resulted primarily from TPG's gross negligence or
willful misconduct. The Company further agrees that it will not,
without the prior written consent of TPG, settle or compromise or
consent to the entry of any judgment in any pending or threatened
claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not any
Indemnified Person is an actual or potential party to such claim,
action, suit or proceeding) unless such settlement, compromise or
consent includes an unconditional release of TPG and each other
Indemnified Person hereunder from all liability arising out of
such claim, action, suit or proceeding. THE COMPANY HEREBY
ACKNOWLEDGES THAT THE FOREGOING INDEMNITY SHALL BE APPLICABLE TO
ANY CLAIMS, LIABILITIES, LOSSES, DAMAGES, OR EXPENSES THAT HAVE
RESULTED FROM OR ARE ALLEGED TO HAVE RESULTED FROM THE ACTIVE OR
PASSIVE OR THE SOLE, JOINT OR CONCURRENT ORDINARY NEGLIGENCE OF
TPG OR ANY OTHER INDEMNIFIED PERSON.
The foregoing right to indemnity shall be in addition
to any rights that TPG and/or any other Indemnified Person may
have at common law or otherwise and shall remain in full force
and effect following the completion or any termination of the
engagement. The Company hereby consents to personal jurisdiction
and to service and venue in any court in which any claim which is
subject to this agreement is brought against TPG or any other
Indemnified Person.
It is understood that, in connection with TPG's
engagement, TPG may also be engaged to act for the Company in one
or more additional capacities, and that the terms of this
engagement or any such additional engagement may be embodied in
one or more separate written agreements. This indemnification
shall apply to the engagement specified in the first paragraph
hereof as well as to any such additional engagement(s) (whether
written or oral) and any modification of said engagement or such
additional engagement(s) and shall remain in full force and
effect following the completion or termination of said engagement
or such additional engagements.
6. Confidential Information. In connection with the
performance of the services hereunder, TPG agrees not to divulge
any confidential information, secret processes or trade secrets
disclosed by the Company to it solely in its capacity as a
financial advisor, unless the Company consents to the divulging
thereof or such information, secret processes, or trade secrets
are publicly available or otherwise available to TPG without
restriction or breach of any confidentiality agreement or unless
required by any governmental authority or in response to any
valid legal process.
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7. Governing Law. This Agreement shall be construed,
interpreted, and enforced in accordance with the laws of the
State of New York excluding any choice-of-law provisions thereof.
8. Assignment. This Agreement and all provisions
contained herein shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and
assigns, provided, however, neither this Agreement nor any of the
rights, interests, or obligations hereunder shall be assigned
(other than with respect to the rights and obligations of TPG,
which may be assigned to any one or more of its principals or
affiliates) by any of the parties without the prior written
consent of the other parties.
9. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument, and the signature of any party to any counterpart
shall be deemed a signature to, and may be appended to, any other
counterpart.
10. Other Understandings. All discussions,
understandings, and agreements theretofore made between any of
the parties hereto with respect to the subject matter hereof are
merged in this Agreement, which alone fully and completely
expresses the Agreement of the parties hereto. All calculations
of (a) compensation pursuant to Section 3(b) and (b) reimbursable
expenses pursuant to Section 4 of this Agreement shall be made by
TPG and, in the absence of manifest error, shall be final and
conclusive. The Company expressly acknowledges that TPG has been
retained solely as an advisor to the Company, and not as an
advisor to or agent of any other person, and that the Company's
engagement of TPG is not intended to confer any rights upon any
person not a party hereto, including shareholders, employees or
creditors of the Company, as against TPG, TPG's affiliates or
their respective directors, officers, agents and employees.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
TPG PARTNERS, L.P.
By: TPG Genpar, L.P.,
its General Partner
By: TPG Advisors, Inc.,
its General Partner
By: /s/ Xxxxxx Xxxxxxx
Name:
Title:
DEL MONTE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
Name:
Title:
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