IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

IN RE DEL MONTE FOODS COMPANYSHAREHOLDER LITIGATION

Consolidated C.A. No. 6027- VCL

REDACTED VERSION

FILED FEB. 7, 2011

BRIEF IN SUPPORT OFPLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION

OfCounsel:

GRANT & EISENHOFER P.A.Hung G. TaBrenda F. SzydloMichele S. Carino485 Lexington AvenueNew York, NY 10017Telephone: 646/722-85006461722-8501 (fax)

ROBBINS GELLER RUDMAN & DOWD LLPRandall J. BaronA. Rick Atwood, Jr.David T. WissbroeckerEdward M. GergosianDavid A. Knotts655 West Broadway, Suite 1900San Diego, CA 9210 ITelephone: 619/23 I-1058619/231-7423 (fax)

Plaintiff's Co-Lead Counsel

CAVANAGH & O'HARAPatrick J. O'Hara407 East Adams StreetSpringfield,lL 62701Telephone: 2 I7/544-1771217/544-9894 (fax)

Additional Plaintiffs Counsel

GRANT & EISENHOFER P.A.Stuart M. Grant (Del. Bar No. 2526)Michael J. Barry (Del. Bar No. 4368)Diane Zilka (Del. Bar No. 4344)Christine M. Mackintosh (Del. Bar No. 5085)1201 North Market Street, Suite 2100Wilmington, DE 19801-2599Telephone: 302/622-7000302/622-71 00 (fax)

Plaintiff's Co-Lead Counsel

TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

PRELIMINARY STATEMENT 1

FACTUAL BACKGROUND 3

ACT I - THE SET UP .4

Private Equity Firms, Aided By Del Monte's Longstanding Financial Advisor,Size Up The Company And An Aborted Sales Process Begins .4

Despite The Board's Decision Not To Sell, Barclays Continues To Promote TheInterest OfPrivate Equity Buyers 10

ACT 11- THE PLOT THICKENS 11

In September 2010, Without Del Monte's Authority Or Knowledge, BarclaysSecretly Forges A Deal Between KKRlCenterview And Vestar, Two PreviouslyRival Bidders, Clearing A Path For A Deal To Acquire The Company AndEliminating Any Competition I 1

ACT III - A CAREFULLY CHOREOGRAPHED CHASE SCENE 16

The Board Receives A Bid From KKR/Centerview But Refuses To OpenBidding To Other Parties "'"'''' 16

The Board Permits KKR/Centerview To Eliminate Any Potential CompetitiveBids And To Conflict Its Financial Advisor. 18

ACT IV - THE THOROUGHLY PREDICTABLE CONCLUSION 20

The Board And The Sponsors Strike A Deal At $19 Per Share And Sign TheMerger Agreement 20

Following An Illusory Go Shop, The Company Issues Its Proxy For TheProposed Transaction 22

EPILOGUE 24

The Board's Financial Advisor Labored Throughout The Flawed Sales ProcessUnder Incurable Conflicts Of Interest 24

ARGUMENT 28

I. PLAINTIFF HAS DEMONSTRATED A REASONABLE PROBABILITY OFSUCCESS ON THE MERITS 28

A. The Entire Sale Process Was Fatally Flawed By The Del Monte Board's Lack OfOversight Of Barclays 29

B. The Specific Decisions Of The Del Monte Board Were Not ReasonablyDesigned To Maximize Shareholder Value 33

1. The Board's Decision To Focus Only On Private Equity Firms Was NotReasonably Calculated To Lead To Maximum Value For Shareholders 33

2. The Board's Decision To Reopen Bidding With KKR Alone Was NotReasonably Calculated To Lead To Maximum Value 34

3. The Board's Decision To Allow Vestar To Join The KKR/CenterviewGroup Was Not Reasonably Calculated To Maximize Shareholder Value .......... 35

4. The Board's Decision To Permit Barclays To Provide Buy-SideFinancing Was Contrary To Its Obligation To Maximize ShareholderValue 37

5. The Del Monte Board's Appointment Of Barclays To Conduct The "GoShop" Rendered The Process Wholly Illusory And Was Not ReasonablyDesigned To Maximize Shareholder Value .40

C. The Board Has Not Disclosed All InfOlmation Material To The Shareholders'Decision On The Merger .41

1. The Proxy Fails To Disclose The True Nature And Extent of Barclays'Conflicted Role As Financial Advisor .41

2. The Proxy Omits Material Information Regarding The Fairness Opinionsof Barclays and Perella 44

3. The Proxy Provides A Misleading Account OfThe Sales Process .46

4. The Proxy Fails To Disclose the Illusory Nature of The Go Shop Process ........ .47

II. PLAINTIFF HAS DEMONSTRATED A DAN GER OF IMMINENT, IRREPARABLEHARM IN THE ABSENCE OF THE REQUESTED PRELIMINARY INJUNCTION .48

III. THE BALANCE OF EQUITIES FAVORS ISSUANCE OF A PRELIMINARYINJUNCTION 49

CONCLUSION 50

ii

TABLE OF AUTHORITIES

Page(s)CASES

Arnold v. Soc 'y for Sav. Bancorp., Inc.,650 A.2d 1270 (Del. 1994) .41, 46

In re Art Tech. Group S'holders Litig.,C.A. No. 5955-CC, Order (Del. Ch. Dec. 21, 2010) .42

Forgo v. Health Grades, Inc.,C.A. No. 5716-YCS (Del. Ch. Sept. 3, 2010) 29

Gantler v. Stephens,965 A.2d 695 (Del. Sup. 2009) .47

Heath v. Securities and Exchange Comm.,586 F.3d 122 (2d Cir. 2009) 30

In re Holly Farms Corp. S'holders Litig.,1988 WL 143010 (Del. Ch. Dec. 30, 1988) 29,35

In re John Q. Hammons Hotels Inc. S'holder Litig.,2009 WL 3165613 (Del. Ch. Oct. 2, 2009) .41

Khanna v. McMinn,2006 WL 1388744 (Del. Ch. May 9, 2006) 38

Lyondell Chern. Co. v. Ryan,970 A.2d 235 (Del. 2009) 28,36

Marie Capital Master Fund, Ltd. v. PLATO Learning, Inc.,2010 WL 1931084 (Del. Ch. May 13,2010) 45, 46

McMullin v. Beran,765 A.2d 910 (Del. 2000) .41

Mills Acquisition Co. v. Macmillan, Inc.,559 A.2d 1261 (Del. 1989) 30,31,32

Nagy v. Bistricer,770 A.2d 43 (Del. Ch. 2000) 47

In re Netsmart Techs., Inc. S'holders Litig.,924 A.2d 171 (Del. Ch. 2007) passim

iii

ODS Techs., L.P. v. Marshall,832 A.2d 1254 (Del. Ch. 2003) .49

Ortsman v. Green,2007 WL 3325999 (Del. Ch. Aug. 27, 2007) 38

Ortsman v. Green,2007 WL 702475 (Del. Ch. Feb. 28, 2007) 38, 42

Paramount Commc 'ns, Inc. v. QVC Networks, Inc.,637 A.2d 34 (Del. 1994) 35

Police & Fire Ret. Sys. ofCity ofDetroit v. Bernal,2009 WL 1873144 (Del. Ch. June 26, 2009) .48

In re Prime Hospitality, Inc. S'holders Litigation,2005 WL 1138738 (Del. Ch. May 4, 2005) 39,40

In re Pure Res., Inc. S'holders Lilig.,808 A. 2d 421, 449 (Del. Ch. 2002) .44

Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc.,506 A.2d 173 (Del. 1986) passim

Simonetti Rollover IRA v. Margolis,2008 WL 5048692 (Del. Ch. June 27, 2008) passim

In re Staples, Inc. S'holders Litig.,792 A.2d 934 (Del. Ch. 2001) .49

State ofWise. Inv. Bd. v. Bartlett,2000 WL 193115 (Del. Ch. Feb. 9, 2000) 50

In re Topps Co. S'holders Lilig.,926 A.2d 58 (Del. Ch. 2007) 35,40,48

In re Toys uR" Us, Inc., S'holder Litig.,877 A.2d 975 (Del. Ch. 2005) 28,38

In re Transkaryotic Therapies, Inc.,954 A.2d 346 (Del. Ch. 2008) .49,50

TW Svcs., Inc. v. SWT Acquis ition Corp.,1989 WL 20290 (Del. Ch. Mar. 2, 1989) 36

OTHER AUTHORITIES

New Yark Stock Exchange Rule 476(a)(6) 30

iv

PRELIMINARY STATEMENT

At the beginning and end ofa movie, the audience is told the identity of the producer and

director. Shareholders are entitled to at least that same information. But here, despite having

paid the price of admission, the shareholders of Del Monte Foods Co. ("Del Monte" 01' the

"Company") are being kept in the dark. Contrary to what is disclosed in the Proxy, the "Sale of

Del Monte" was produced by Barclays and directed by Barclays Managing Director, PI Moses, I

for the benefit of Barclays itself. There was no reason to sell Del Monte. There was nothing that

Del Monte could do as a private company that it could not do as a public company. Rather,

Barclays, perceiving an opportunity to capitalize on the increased availability of cheap financing,

conceived the idea, wrote the storyline, and cast the actors - all for the gate of approximately $50

million in fees it stands to earn if the transaction is consummated. Del Monte senior management

played their part and went along with the sale, because they were at retirement age and had no

interest in setting up a succession plan. And the Board of Directors of Del Monte, repeatedly

misled by its faithless financial advisor throughout the process, was out getting popcorn while

this whole movie was being produced.

Injunctive relief is appropriate here because the Merger Agreement is the product of a

woefully inadequate process in which Barclays, retained by the Del Monte Board as the

Company's financial advisor, deliberately deceived the Company's directors, undermined any

competitive bidding process, and subjected itself to irreconcilable conflicts of interest by

positioning itself to provide financing for the buyers at the same time it was supposed to be

representing the Company in seeking the best price. The Del Monte Board failed entirely in its

I Unlike Hitchcock, known for appearing in his own movies, Mr. Moses refused to make anappearance in his own production, opting instead to send understudies to be Barclays witnesses atdeposition.

fiduciary duty to oversee the sale of Del Monte and knowingly defened to an unfaithful,

deceitful, and ultimately deeply-conflicted advisor.

But the Board's failings go fUlther. At five critical points in the story, when the Del

Monte Board was presented with specific decisions that, had the directors acted reasonably, could

have promoted shareholders' interests and exposed (and perhaps remedied) Barclays' fraud, the

Del Monte directors made affirmative decisions that were decidedly contrary to shareholders'

interests and in no way designed to maximize shareholder value. First, they determined to limit

their inquiries regarding a potential sale to private equity buyers, to the exclusion of strategic

buyers, which Barclays itself acknowledged could have been in a position to pay more. Second,

just months after shutting down an exploratory process with five competing bidders, the Del

Monte Board chose to reopen discussions with only one bidder, which was not even the highest

bidder in the prior round of negotiations. Third, when its chosen bidder, Kohlberg, Kravis,

Roberts & Co. ("KKR"), asked to "partner" with a private equity filTll that previously had

submitted a higher bid, Vestar Capital Partners ("Vestar"), the Del Monte Board, instead of

refusing or seeking to contact Vestar on its own to create a competitive process, simply

acquiesced, eliminating any possible auction that could have developed. Fourth, before the Board

had completed negotiations regarding a sale price, the Del Monte directors permitted Barclays to

position itself to more than double its potential fees by providing financing to the buyers (thus

giving Barclays an affirmative dis-incentive to push for a higher price from a competing bidder).

Finally, after deferring entirely to Barclays in a process where the financial advisor misled the

Company's directors, manipulated the sale price, and secured conflicting roles, the Del Monte

Board anointed none other than Barclays itself to run a "go shop" in which Barclays ostensibly

was charged with finding competing bidders to its chosen buyer and where it stood to lose tens of

millions ofdollars if a different buyer, who did not use Barclays' financing, were successful.

2

The irreconcilable conflicts and deceitful conduct of Barclays should cause this Court to

enjoin the sale of Del Monte unless and until the process is run properly by an uncontlicted

advisor. At a minimum, this Court must enjoin the sale of Del Monte until the curtain is raised,

and Del Monte shareholders learn the truth about the PJ Moses directed production: The Sale of

Del Monte.

FACTUAL BACKGROUND

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, generating

$3.7 billion in net sales in fiscal 2010. As a standalone entity, Del Monte is well positioned to

provide its shareholders with significant investment gains. There are no unique advantages that

Del Monte could realize by becoming a private corporation. As the Company's financial advisor

testified, anything Del Monte could do to improve its business could be done as a public

company.2

In the Company's 2010 Annual Report to Shareholders, Richard G. Wolford ("Wolford")

- Del Monte's Chairman, President and CEO - noted, "[i]n fiscal 2010 [ended May 2, 2010], Del

Monte Foods reported outstandingfinancial results, including solid top-line growth, strong cash

flow, and record earnings. .. Successful execution of our strategy made Del Monte Foods a

much stronger company. Our fiscal 20 I0 accomplishments have established a new performance

level and have set a higher base for growth and performance as we head into fiscal 2011."

(emphasis added). In fiscal 2010, the Company generated $250 million of cash flow,

2 Deposition of James Ben (the "Ben Tr.") at 256.

3

substantially reduced its debt levels, and increased its quarterly dividend by 80%. As a result, at

least one analyst set a target price for Del Monte's stock at $22 per share.'

ACT I - THE SET UP

Private Equity Firms, Aided By Del Monte's Longstanding FinancialAdvisor, Size Up The Company And An Aborted Sales Process Begins

Del Monte's strong perfonnance and growth prospects, in conjunction with the active

mergers and acquisitions market in its sector,4 made the Company a prime takeover candidate.

In December 2009, sensing an opportunity to capitalize on its client's success and turn a quick

profit for itself, Barclays - Del Monte's longstanding financial advisor' - initiated clandestine

talks with another of its clients, private equity firm KKR, with the idea of taking Del Monte

private,6 Barclays' conversations with KKR certainly were not exclusive/ and there is no reason

, Libby Sallaberry and Clyde Eltzroth, D.A. Davidson Reiterates Del Monte Buy, PT $22,Bloomberg (Nov. 26, 2010). The materials cited in this brief will be provided in a separateappendix.

4 Del Monte is well aware of an active mergers and acquisitions market for pet food and cannedfood companies. According to Bloomberg, over the past five years there have been more thantwenty-five deals in North America targeting canned food companies. Indeed, this year alone,Nestle SA bought dog-snack maker Waggin' Train LLC from VMG Partners in September - anacquisition in which Del Monte itself was interested (Deposition of Simon Brown (the "BrownTr.") at 84; KKR 0023864) - and in May, Procter & Gamble Co. agreed to acquire Natura PetProducts Inc. Additionally, on November 5, 2010, Lion Capital LLC of London announced thatit would acquire canned-seafood makers Bumble Bee Foods LLC from Centre PartnersManagement LLC. See Matthew Boyle, KKR-Led Group to Purchase Meow Mix Maker DeiMonte Foods/or $4 Billion, Bloomberglaw.com (Nov. 26, 2010).

5 Prior to its role in the Proposed Transaction, Barclays had performed extensive work for DelMonte, including (1) acting as co-lead ananger on the Company's $1.2 billion senior securedcredit facility, (ii) acting as joint bookrunner on the Company's $450 million issuance of 7.5%senior subordinated notes in 2009, and (iii) acting as joint dealer manager and solicitation agenton the Company's tender offer and consent solicitation for the Company's 85

/g% senior

subordinated notes in 2009. Del Monte Foods Co. Schedule 14A (Definitive Proxy Statement)(the "Proxy") at 39.

6 See, e.g., KKR Ex. I at 4904 (KKR met with Barclays on 12/17/09 to discuss possibletransaction altematives involving Del Monte); KKR Ex. 2 at 0756 (" REDACTED ").

4

to doubt that Barclays (through PJ Moses) was having similar conversations with its contacts at

REDACTED another private equity film,8 In any event, in Janumy 2010, REDACTED

(identified in the Proxy as "Bidder A") took the bait and submitted a written indication of interest

in acquiring Del Monte at a purchase price of $14 to $15 per share.' Bingo, Barclays put Del

Monte in play.

Having ginned up interest in the private equity community, Barclays then convinced Del

Monte to retain it as the Company's exclusive seIl-side financial advisor. Of course, Barclays did

not disclose that it was the source of the private equity firm's interest in Del Monte, only that it

"knew many of the entities that might be an interested buyer."IO From the outset, Barclays saw an

opportunity to augment the advisory fees Del Monte would pay by attempting to secure a role in

buy-side financing as well. Barclays' January 2010 "Project Hunt (Del Monte) Screening

Committee Memo" boasted that Barclays had been "mandated by Del Monte Foods as exclusive

seIl side advisor to pursue a potential sale of the Company" but at the same time plainly admitted

that "Barclays will look to participate in tlte acquisition financing once the Company has

reached a definitive agreement with a buyer."" Ultimately, as discussed below, Bm'clays did not

bother to wait until any definitive agreement was signed, and instead convinced the ultimate

7 Brown Tr. at 13-14 REDACTED

8 Ben Tr. at 34 ("Q. Do you know what caused REDACTE to approach Barclays? A. 1don't. Theyhad an interest in the --- they had an interest in theDcompany. We have a relationship with - wehave relationships withREDACT broadly as a firm. One of the partners here, PJ [Moses] doescover one of the partners {h'l,re, so this may be a topic that was discussed from time to time withREDACTE)

o .

9 Proxy at 24.

10 Ben Tr. at 59. What Barclays failed to disclose to Del Monte is that it had provided substantialassistance to the private equity firms in becoming potential buyers. [d. at 59-60.

" See Tarone Ex. 18 (emphasis added); Ben Ex. 4; Deposition of Regina Tarone (the "TaroneTr.") at 58, 89-91, 226-27.

5

purchasers (the "Sponsors") to give Barclays a lucrative role in the buy-side financing before the

Del Monte Board had agreed on a final price and before even telling the Del Monte Board of its

conflicted intentions. 12

From the start, Barclays encouraged the Company to focus on a very small group of

private equity firms, to the exclusion of strategic parties,13 even though Barclays itself recognized

that strategic buyers generally were in a position to pay more for a company." KKR, predictably,

was among the five private equity films the Company contacted under Barclays' guidance, with

REDACT (aJk/a "Bidder A")ED '

REDACTED

rounding out the group." Given its ultimate desire to provide buy-side financing, the fact

that Barclays focused on private equity buyers comes as no surprise. As Barclays recognized,

12 See Brown Tr. at 134-5 REDACTED

KKR Ex. 28.See also Tarone Tr. at 89-90 ("Q. Now, shortly after this you began talking directly with KKRabout how they wanted the deal to be structured; is that correct? A. Shortly after? Q. Yes. Let'ssay within a week. A. We were speaking to a lot of buyers at that time. Q. And you wereoffering those buyers your judgment on what the appropriate leverage would be for a transaction;correct? A. Correct. Q. And you were offering buyers to actually be part of the leveragedfinancing; correct? A. I didn't have any direct conversations during those times. I think they - ifthey said would you want to be involved in this transaction, I'm sure we would have said yes. Q.You didn't say we're doing all this and we're presenting it to you, but we really think you oughtto take this and go down the street to Morgan Stanley? A. We definitely did not say that. Q.And you didn't even imply that? A. No. Q. It was made clear to the people who you werelaying this out for that we would like the business; right? A. It was made clear that this is acapital structure that could work and we had to be careful about what we said regarding whetheror not we could be in it, but if they asked us if we wanted to be part of the transaction, I'm surethe answer was yes.")

13 Brown Tr. at 36-37; KKR Ex. 2 at 0759; KKR Ex. 4 REDACTED

KKR 00007160-7163 at 7161 REDACTED

14 See, e.g., Tarone Tr. at 64; Ben Tr. at 11 ("Q. Generally, in an acquisition, who is willing topay a higher price? A corporate purch aser or a financial sponsor? A. Well, generally if you -- allthings were equal and you had a corporate sponsor -- corporate buyer who had synergies and wasinterested in doing the transaction, if that was the set of facts, it would be the corporate buyer.").

15 Ben Tr. at 85-87.

6

private equity buyers were much more likely to require financing, and Barclays was one of only a

limited group of institutions with sufficient resources to handle a transaction as large as a

leveraged buyout of Del Monte." Moreover, Barclays' own past experience with KKR suggested

that if it was successful in acquiring Del Monte, KKR would permit Barclays to participate in the

financing, thus enabling Barclays to earn the maximum fee possible for its work. 17 It is no

coincidence that the Barclays personnel involved in the Del Monte deal previously had worked

with KKR on another transaction in which Barclays acted as both sell-side advisor to the

company and buy-side financier to KKR. 18

Following meetings with Del Monte management in late February 2010, each of the

targeted private equity firms was impressed with the opportunity, noting, inter alia, that they

"liked [the] business more than expected," were "impressed with management's command of the

business," found that the Company "exceeded expectations," were "very impressed with

progress/momentum at the Company," and were "[e]ven more impressed with the

business/opportunity after the meeting than before." 19

After Del Monte was "in play," additional prospective bidders began to emerge. Both

Vestar, a private equity firm, and (undoubtedly to Barclays' chagrin) a strategic buyer,

REDACTED contacted Barclays and requested that they be included in the process.20 Del

Monte's Board agreed, and each of the private equity firms and REDACTED executed

16 Tarone Tr. at 26-29.

17 Ms. Tarone testified that KKR is one of Barclays more important clients. Tarone Tr. at 95.Over the past few years, Barclays has worked with KKR on half a dozen projects in the consumerand retail space alone. Tarone Tr. at 94-95.

18 Tarone Tr. at 93-94.

19 Ben Ex. 9 at 6466 (Project Cambridge - Summary of Management Meetings, Feb. 25, 2010).

20 Proxy at 24; Deposition of Terrence Martin (the "Martin Tr.") at 19.

7

confidentiality agreements with Del Monte in February 2010 and began due diligence into the

Company.21

Given the level of interest in the Company, the confidentiality agreements were intended

to preserve the integrity of a competitive bidding process. Specifically, these agreements

precluded each of the interested parties, without the express written consent of the Del Monte

Board, from speaking with anyone - including any of the other potential bidders - about either

the confidential infonnation they obtained from Del Monte or about the very fact that they were

in discussions with the Company or had submitted any bids for Del Monte. 22 In addition, the

confidentiality agreements prohibited the bidders from entering into any "agreement, arrangement

or understanding, or any discussions which might lead to such agreement, arrangement or

understanding, with any other person ... including other potential bidders and equity or debt

financing sources, regarding a possible transaction involving the Company.,,23

The confidentiality agreements also provided a collateral benefit to Barclays. The

agreements specifically precluded interested parties from having discussions with any investment

bank except Barclays about possible financing. 24 Barclays' ability to act as the defaclo exclusive

21 Proxy at 24.

22 DLM 0022686-91 REDACTE DLM 0022707-13 REDACTED DLM 0022714-19 REDACTED- f) -

Ratzan Ex. 2 (Vestar); KKR Ex. 6 (KKR).

23 DLM 0022686_91REDACTE DLM 0022707_12REDACTED DLM_0022714-19 REDACTED- f) -

Ratzan Ex. 2 (Vestar); KKR Ex. 6 (KKR).

24 KKR Ex. 6; Brown Tr. at 67-68; Ratzan Ex. 2; DLM 0022686_91REDACTE DLM 0022707-12REDACTED DLM_0022714-19 REDACTED See B~n Ex. II at 152? ("Barclay~Capital haspresented the opportunity to several Financial Sponsors, but in the interest of preservingconfidentiality at this early stage of the process, has restricted the Sponsors from contactingpotential financing sources.").

8

banker to these potential bidders perfectly positioned it to secure a role in the buy-side financing

down the road. 25

After executing the confidentiality agreements, the potential bidders engaged in several

weeks of due diligence.

27

REDACTED

On March 11,2010, Del Monte received five indications of interest for the Company."

Of these five preliminary offers, Vestar's was the highest, providing an indication of value of up

to $17.50 per share." KKR, acting with Centerview as its partner,JO submitted an indication of

25 See Tarone Tr. at 89-91, 92-93 (acknowledging that in discussing proposed capital structureswith the potential bidders Barclays would have indicated its interest in providing the financing);id. at 129-31.

26 See KKR 0004946-4948 at 4947 REDACTED

27 See KKR Ex. 2 at KKR 0000761.

" Ratzan Ex. 5 (Vestal' offer); KKR Ex. 10 (KKR/Centerview offer); DLM_0002081-2087REDACTED offer); DLM_0002076-2080 REDACTED offer); DLM_0002067-2075

REDACTED offer).

" Raztan Ex. 5.

30 KKR Ex. 3 REDACTED

From the outset, KKR planned to partner with Centerview for purposes of pursuing atransaction with Del Monte. REDACTED

(KKR Ex. 9, Brown Tr. at 73-74), REDACTED

d. at 75-77).

9

interest to acquire Del Monte at $17 per share," an offer worth almost $100 million less than

Vestar's.32 Immediately, Barclays informed KKR that it had been outbid."

After discussing these preliminary offers during a regularly scheduled March 18, 2010

meeting, Del Monte's Board determined that the Company's stand-alone growth prospects were

sufficiently strong such that it would not be in the shareholders' best interests to proceed with

discussions with the interested parties. At the time, Del Monte's stock price had risen over 37%

since December 2009 on positive earnings reports. 34 Accordingly, the Board detelmined not to

proceed with any further discussions about a possible deal with any of the five interested

parties,35 and instructed Barclays "to shut process down and let buyers know the company is not

for sale.,,36

Despite The Board's Decision Not To Sell, Barclays ContinuesTo Promote The lute rest Of Private Equity Buyers

Despite the halt to the bidding process, on March 19,2010, the day after Barclays was

instructed to "shut [the] process down," PJ Moses reported to his colleagues at Barclays that "[

remain optimistic tlrat over the next 2-4 quarters tltis gets sold." In fact, for the next several

31 KKR Ex. 10; Brown Tr. at 77.

32 At the close of business on the record date, there were 199,372,722 shares of Companycommon stock outstanding. 199,372,722 x $0.50 ~ $99,686,361.00. This figure does not includethe treatment of options, perfOlmance share units and other equity.

33 KKR learned that its bid was not the highest bid (KKR Ex. I I) and that "[0]ther bids reachedinto low I 7s" (KKR Ex. 13; Brown Tr. at 86-88).

34 Inyoung Hwang, Del Monte Profit Beats Estimates on Higher Prices (Update 1), Bloomberg(Dec. 3, 2009); Chip Brian, Del Monte Foods Sizzles on Topped Estimates Strong GuidanceBloomberg (Mar. 4, 2010); Matthew Boyle, Del Monte Boosts Dividend as Profit BeatsEstimates (Update 2), Bloomberg (June 1,2010); Kim Vacher-ta, Del Monte Foods Affirms 2011EPS Forecast $1.38 - $1.42, Bloomberg (July 13,2010). See also Del Monte IQ Profit EdgesUp, But Revenue Slips, Bloomberglaw.com (Sept. 2, 2010).

35 Proxy at 25; KKR Ex. 12; Brown Tr. at 82.

36 Ben Ex. 19.

10

months, Moses continued to meet with Private Equity Sponsors to promote the idea of a going-

private deal: "I believe he spent time with a range of potential buyers for this company as he did

before and as we would expect him to.,,37 By September, Bm'clays noted internally that it

expected that the Del Monte Board's decision to cease sales negotiations "may be revisited in the

coming months.,,38 In order to execute its plan and secure both advisory and financing roles,

Barclays assembled a pre-packaged buyer group based on the confidential knowledge it obtained

in the previous failed negotiations.

ACT II - THE PLOT THICKENS

In September 2010, Without Del Monte's Autbority Or Knowledge, Bar clays SecretlyForges A Deal Between KKRlCenterview And Vestar, Two Previously Rival Bidders,Clearing A Patb For A Deal To Acquire The Company And Eliminating Any Competition

On or before September 14,2010, Pl Moses had lunch with Brian Ratzan ofYestar.39 At

the lunch, Moses suggested that it might be

and that, if Vestar were interested,

REDACTED

REDACTED As Ratzan

testified, this conversation was initiated by Barclays.40 Barclays sensed that this was an

REDACTED

41 In other words, Barclays sensed that the time was ripe to craft

another deal that, given the depressed state of Del Monte's stock price, would have greater appeal

37 Ben Tr. at 189.

38 Ben Ex. 21 at BARC-DLM 00015092.

39 Deposition of Brian Ratzan (the "Ratzan Tr.") at 35.

40 I d. at 35.

41 Ratzan Tr. at 36.

11

to Del Monte. At the time that Barclays initiated this dialogue with Vestar, it was already

engaged in similar discussions with KKR.42

For Vestar to "partner" or to even discuss with KKR a transaction involving Del Monte

amounted to a clear violation of the confidentiality agreements executed the previous February,

which precluded either firm ITam entering into any "agreement, alTangement or understanding, or

any discussions which might lead to such agreement, arrangement or understanding" concerning

a transaction to acquire Del Monte.43

In clear violation of these confidentiality agreements,44 as well as its own policies

governing corporate conduct and ethics," and without any authority from the Del Monte Board,

Barclays put together the two bidders from the March 2010 auction who had submitted the

highest bids, thereby removing any prospect of real competitive bidding in any renewed sale or

auction for the Company. The prospect of competitive bidding had been real. Previously, five

different finTIs expressed competing interests to acquire the Company. Moreover, everyone

42 Ben Ex. 22 (indicating that Barclays was scheduled to meet with KKR on Sept. 14, 20 I0 at10:00 a.m.). In fact, it appears that Moses at Barclays contacted Vestar again on September 14,2010, just hours after meeting with KKR. See Ben Ex. 23 (e-mail from Moses on Sept. 14, 20 I 0at 4:30 p.m. stating, "Spoke to Ratzan this afternoon to update on DLM.").

43 KKR Ex. 6 (KKR); Ratzan Ex. 2 (Vestar); DLM_0022686_2269IREDACTE DLM 0022707-22713REDACTED DLM 0022714-22719 REDACTED f)

44 REDACTED

Ratzan Tr. at 14; Brown Tr. at 62-63.

45 See Barclays Group Statement on Corporate Conduct and Ethics, June 2008. Specifically,Barclays' Statement on Corporate Conduct and Ethics addresses its policies with respect to faircompetition, conflicts of interest, and management and use of confidential client infOlmation.Among other things, "all employees, irrespective of their position, location or seniority [must] notbecome involved in any agreements, arrangements or practices that have as their object or effectto prevent, restrict or distOlt competition." Furthennore, "employees are required to declare anyactual or potential conflicts of interests." Barclays' policies also require that "infOlmation about[Barclays] customers, business contacts and employees should be held in the strictest confidence.Id.

12

involved in the process acknowledged that KKR had the tinancial wherewithal to complete a

transaction without partnering with any other group at all. 46REDACTED

47 There was absolutely no reason, therefore, for Barclays to have combined

KKR/Centerview with Vestar other than to force a deal through and to eliminate the unfortunate

distraction of a competitive bidding process that could delay consummation ofa transaction.

In pursuit of this goal, and at Barclays' urging, in late September and early October,

Vestar worked with KKR/Centerview to submit a joint offer to acquire Del Monte. REDACTED

46 Ratzan Tr. at 65

47 Brown Tr. at 73-74; KKR Ex. 9.

46 Ratzan Tr. at 39

49 Ratzan Tr. at 58.

See KKR Ex. 2 at KKR 000077 I

Ratzan Tr. at 12-13; Ratzan Ex. 1.

50 Ratzan Ex. 12.

50 For its part, KKR considered itself "effectively partnered"

REDACTED

REDACTED

REDACTED

REDACTED

13

with Vestal' by early October.51REDACTED

52 Barclays similarly

understood that KKR/Centerview and Vestal' had partnered up. In an email on September 14,

2010, PJ Moses reported that Ratzan of Vestal' "remains very interested and as I believe I told you

following my golf with him, he is going to partner with KKR on this. So team wi[lI] be kkr,

vestal' and hooper (centerview). Obviously this is confidential.,,53

Revisiting its earlier discussions with KKR from March 2010 concernmg Wolford's

impending retirement, Barclays also explained to KKR that the timing was right to make a bid for

the Company, because Wolford still had failed to name a successor.

54

REDACTED

Based on these discussions, on October 11,2010, KKR submitted an offer to acquire Del

Monte for a price of $17.50 per share." REDACTED

51 Significantly, this contravenes Barclays' directive to its employees that they "do not becomeinvolved in any agreements, arrangements or practices that have as their object or effect toprevent, restrict or dist011 competition." See Barclays Group Statement on Corporate Conductand Ethics.

52 KKR Ex. 5 at 2 (Project Blue, Investment Committee Materials, Oct. 4, 2010).

53 Ben Ex. 23.

54 See KKR Ex. 5 at KKR 0000002 REDACTED

" Proxy at 25. DLM_0000156-160. While nominally higher than the $17 they had offered inMarch, KKR/Centerview recognized that this offer was, in reality, a step back, as internal DelMonte/Barclays documents acknowledge that an equivalent bid to its previous $17 would now be$18.32 based on post-March developments. See DLM.00029 I4-2916.

14

REDACTED

After submitting the $17.50 bid on October II, 2010, only representatives of

KKRlCenterview attended meetings with Del Monte's management and fed information about

those meetings back to Vestal'. For example, on October 31, 20 I0, REDACTED

59 Likewise, PJ Moses at Barclays agreed that it would be best to

keep Vestar's involvement (and presumably Barclays' role in the process) concealed from the Del

Monte Board,60 As a result, Del Monte's Board was unaware that while continuing to work with

the Company as a trusted advisor after March 2010, Barclays simultaneously engineered the

56 At the time KKR submitted this bid, it had substantial discussions regarding price and biddingstrategy with Vestal'. Ratzan Tl'. at 45; Ratzan Ex. 10, KKR Ex. 16 REDACTED

57 Ratzan Tr. at 50-51

58 KKR Ex. 16 (10/7/10 email from Steve Ko).

59 KKR Ex. 20

REDACTED

REDACTED

60 See Ben Ex. 32 (e-mail from PJ Moses to Simon Brown, dated Oct. 31,2010, wherein Moseswrites, REDACTED

15

partnership between KKRlCenterview and Vestar, effectively removing any possibility of price

competition between the two previous high bidders.

ACT III A CAREFULLY CHOREOGRAPHED CHASE SCENE

The Board Receives A Bid From KKRlCenterview Bnt RefusesTo Open Bidding To Other Parties

Del Monte's Board met to consider the KKRlCenterview offer on October 13,2010 and

again on October 25, 2010." Although it may not have been aware of the behind-the-scenes

drama preceding the KKR/Centerview offer, the Board quickly signaled its willingness to

abdicate its leading role and become part of the supporting cast. At the October 25, 20 I0,

meeting, the Board determined to proceed with discussions with KKRlCenterview alone.62 The

Board gave no consideration to the other parties that had previously submitted offers for the

Company, to re-opening the sales process, or even to conducting a revised market check.G3

Notably, nothing prevented the Board from contacting other firms: KKR had never demanded

exclusive talks up front and, in fact, would later be denied exclusivity when it asked for it on

November 8, 2010.64

On October 27, 2010, Del Monte rejected the $17.50 offer but permitted

KKRlCenterview to conduct additional due diligence and to meet with Del Monte management to

61 The Company formally "re-engage[d]" Barelays as financial advisor on October 25, 2010.Proxy at 26.

62 Critically, it was only at the October 25,2010 meeting that the Board directed its StrategicCommittee to "contact representatives ofBarelays Capital to re-engage them as financial advisorin connection with the exploration of strategic alternatives, including a potential sale of theCompany." Proxy at 26. Thus, Barclays up to this point had been pushing a deal betweenKKRlCenterview and Vestar without the knowledge or the authority of the Board.

6J See e.g., Martin Tr. at 18-20.

64 Proxy at 26; see KKR Exs. 22, 28; Brown Tr. at 117.

16

discuss a possible deal." Indeed, on November 4,2010, members of senior management of the

Company and Barclays met with KKRlCenterview.66 REDACTED

68

While KKR/Centerview continued to negotiate with the Company and to conduct

additional due diligence, the other interested parties were entirely shut out of the process. On

November 8, 2010, however, an article was publ ished in The London Evening Standard

indicating that KKRlCenterview was pursuing an acquisition of Del Monte at $ I8.50 per share.69

The Landon Evening Standard aliicle destroyed the de facto exclusivity that KKRlCenterview

had managed to secure for itself via its negotiations with Del Monte. Fearing that other bidders

might emerge, KKR and Centerview - continuing to secretly work with Vestar - raised their bid

to $18.50,70 having internally secured authority for a $19 bid.71 Bal'clays, eager to increase the

" Proxy at 26; KKR Ex. 18.

66 Proxy at 26.

67 Brown Tr. at 112; KKR Ex. 20

68 KKR Ex. 20; Brown Tr. at 111-13.

REDACTED

69 Rosamund Urwin, The City rumour mill is still churning out the tales but today the takeovertittle-tattle was focused on the other side ofthe Atlantic, THE LONDON EVENING STANDARD (Nov9,2010)

70 Proxy at 26; KKR Ex. 23.

71 DLM 0000046. Del Monte was unaware of Vestar's participation at the timeKKRlCenterview submitted its bid on November 8,2010. See Brown Tr. at 122.

17

fees it would eam on the transaction by participating in buy-side financing, started to line up its

financing team to move on a not as of yet made, $19 bid.72

The Board Permits KKR/Centerview To Eliminate Any PotentialCompetitive Bids And To Conflict Its Financial Advisor

Faced with the threat of competing bidders and no longer able to keep its dealings with

Vestal' a secret, KKR/Centerview approached Del Monte about the possibility of including Vestar

in the deal "during the week of November 8, 2010.,,73 According to the Proxy Statement, the

Board inexplicably responded by "permit[ing] KKR and Centerview to approach Vestal' to

become an additional member of the sponsor group.,,74 In granting this permission, the Board did

not even consider the ramifications of permitting KKR/Centerview to team up with the previous

high bidder and did not even consider contacting Vestal' independently." Moreover, there was no

representation that the addition of Vestal' to KKR's group was somehow necessary for KKR to be

able to raise its bid." The Board's only explanation for permitting Vestal' to join

KKR/Centerview was Vestar's "prior experience in the food industry,,77 - a fact having nothing

to do with obtaining the maximum value for shareholders. Of course, this entire description is

false and misleading since the deal to cut Vestal' in had been struck long ago.

72 See, e.g., BARC-DLM_00016376-16377 (11/8/10 Barclays email referring to need to "clear[]out internal issues to be able to paJticipate" in buy-side financing); BARC-DLM_00010799(11/12/10 Barclays email pushing for internal approval to participate in buy-side financing).

73 Proxy at 27; Brown Tr. at 122-23. Permission was required pursuant to the terms of theconfidentiality agreement executed by KKR and Centerview in February, 2010. See KKR Ex. 6;KKR 0000745.

74 Proxy at 27.

75 See, e.g., Martin Tr. at 50-51.

76 KKR did not indicate to the Board any other reasons as to why Vestal' should be included in thetransaction. REDACTED

Id. at 60, 74, 120-21.

77 Proxy at 27.

18

Having eliminated the competition, Barclays continued discussions with KKR about buy-

side financing. Although the Proxy discloses that during the week of November 15,2010, KKR

raised with the Company and Barclays the possibility of Barclays providing buy-side financing,"

discovery has revealed that Barclays already had secured KKR's agreement to permit Barclays to

provide financing on the deal and that Barclays was already running the numbers and providing

its analysis to KKR before the Board was even notified." Faced with no suggestion that KKR

"needed" Barclays to get the deal done,80 the Board inexplicably agreed to let its financial advisor

participate in the buy-side financing before KKR and the Company had agreed on a price,'1

creating an incurable conflict ofintel'est for its financial advisor, as discussed more fully below,Hz

" Proxy at 27.

" See, e,g., Tarone Ex. 6; Tarone Ex. 7 (email dated Nov. 8, 2010 from Regina Tarone to Mosesstating, "[Wle're good for 1/3 and want to be in the financing and will provide a super quickturnaround." Moses replied, "So if we are good for up to 1/3. Should we only let them go to 3others?"); BARC-DLM 0024976-24977; see KKR Ex. 28; Brown Tr. at 133-34.Notwithstanding the state;'ent in the Proxy, REDACTED

Brown Tr. at 137-38. Moreover, discovery has revealed thatBarclays had planned all along to participate in buy-side financing. See, e.g., Ben Ex. II (3/4/1 0Barclays Screening Committee Memo stating that Barclays planned to ask for role in buy-sidefinancing once agreement was reached); Tarone Ex. 5 (Mar. 9,2010 e-mail from Barclays CapitalMarkets employee commenting that "I realize we'll be takers of a deal in the end ... ").

'0 See, e.g., Martin Tr. at 53-54. REDACTED

757

See, e.g., Brown Tr. at 135-36; KKR 0023925-23926REDACTED

REDACTED

REDACTED

KKR 0012755-

KKR 0024002-24003 REDACTED

REDACTED REDACTED See also Tarone Tr. at 146 (other banksinvolved in the financing could have done the whole deal without BarcIays). REDACTED

REDACTED

KKR Ex. 32.

81 See Brown Tr. at 134-5 REDACTED

KKR Ex. 28.REDACTEDSee also Brown Tr. at 139-40; KKR Ex. 30

Tarone Tr. at 147-48, 178-80; Tarone Ex. 8 (Nov. 9,2010 email stating

19

ACT IV THE THOROUGHLY PREDICTABLE CONCLUSION

The Board And The Sponsors Strike A DealAt $19 Per Share And Sign The Merger Agreement

On November 22, 2010, the Sponsors raised their $18.50 bid to $18.75, and on

November 24,2010, raised their $18.75 bid to $19." The Board, on Barclays' recommendation,

swiftly approved the $19 offer (the "Proposed Transaction")." That same day, the parties

executed a Merger Agreement that contained a number of deal protection devices.85

While the Merger Agreement permitted a 45 day "go shop" period, the Board once again

let a golden oppOltunity pass and detennined that Barclays, already conflicted by its dual roles as

sell-side advisor and buy-side financer, should also run the "go shop."" The Board's decision to

permit Barclays to run the go shop is rendered all the more egregious by the fact that another,

non-conflicted bank REDACTED was ready, willing and able to run this process for the

Barclays will be one of the banks); Tarone Ex. 10 (emails dated Nov. 13-14, 2010 betweenBarclays and KKR regarding financing KKR requires); Tarone Exs. 12 and 13 (emails dated Nov.20-22,2010, discussing that KKR wants Barclays to quarterback ("qb") the financing.)

82 REDACTED

Brown Tr. at 138. See infra Epilogue.

83 Proxy at 28. Barclays was so anxious to get a deal done, it was prepared to recommend the$18.75 offer. Ben Ex. 38 at BARC-DLM_00011722.

" [d. at 28-29.

85 Proxy at 29. These deal protection devices included (1) a "no-shop" clause that precludes theCompany from soliciting potential competing bids after the expiration of the illusory 45 day "goshop" period (Merger Agreement § 6.5); (2) a "matching rights" provision that requires theCompany to disclose confidential infonnation about competing bids to the Sponsors and thatallows the Sponsors to match any competing proposal (id. § 6.5); and (3) a termination andexpense fee provision that requires the Company to pay $60 million if the transaction isterminated in favor of a superior proposal from the go shop period or $120 million if thetransaction is tenninated in favor of a superior proposal from the no-shop period (id. § 8.5). SeeProxy, Appendix A.

86 See Ben Ex. 39 at BARC-DLM_00011826 ("[T]he Company, along with its Board ofDirectors, has also deteffilined that if the definitive agreement in connection with the sale of theCompany contemplates a go shop process, Barclays Capital is the appropriate advisor to run suchprocess.").

20

Company. While REDACTED approached the Company and offered to perfOlill the go shop,

Barclays continued to maneuver behind the scenes to ensure that it retained control of the go shop

process, REDACTED

89

The likelihood that any other bidder would emerge was made even more remote by the

fact there were only eight banks that could have financed in a transaction of this size and nature,

and the majority of them were locked up by KKR.90 One of KKR's investment bankers Morgan

Stanley, noted that it

87 Brown Tr. at 145 REDACTED

KKR Ex. 32

REDACTED

REDACTED

88 Brown Tr. at 145-46; KKR Ex. 32...")

89 Brown Tr. at 146-47; KKR Ex. 33

90 See MS 117978

MS 113939MS 119703

MS 062537

91 MS 116281.

21

REDACTED

REDACTED

REDACTED

REDACTED

REDACTED

REDACTED

Following An Illusory Go Shop, The CompanyIssues Its Proxy For The Proposed Transaction

The Board exercised virtually no oversight over Barclays." Reinforcing the depth of the

Board's lack of concern about the possible conflicts posed by Barclays running the go shop, Mr.

Martin testified that it "never occurred to us that they wouldn't do a good job.,,93 For its part, the

members of the Strategic Committee did nothing to "run" the go shop. Neither Martin nor, to his

knowledge, any other Board member was involved in any communication with any party solicited

during the go shop." They were not involved in any go shop meetings with potential acquirers."

In fact, Martin had no idea what Bm'clays said to any potential acquirer." Martin had no idea

how many of the potential purchasers Bm'clays met with face to face. 97 Nor did he know how

many of those potential buyers Barclays provided any sort of documentation.'" On January 8,

2011, the go shop period expired. According to the Proxy, not surprisingly, no superior offers

• 99camem.

On January 12, 20 II, the Board caused the Company to issue its definitive Proxy for the

Proposed Transaction. The Proxy is materially false and misleading, as it fails to disclose all

infOlmation that a Del Monte shareholder would consider imp0l1ant in deciding how to vote. In

" See, e.g., Martin Tr. at 65-66 (neither Mr. Martin nor, to his knowledge, any other Boardmember, was involved in any communication with any party solicited during the go shop).

93 Martin Tr. at 64.

94 Martin Tr. at 65-66.

95 Martin Tr. at 65.

96 Martin Tr. at 66.

97 Martin Tr. at 83.

'" Id.

99 Proxy at 29.

22

addition to the myriad facts explained above regarding Barclays conflicts, the Proxy fails to

disclose the following:

(a) Details about why the Board chose to solicit only financial sponsors and notstrategic buyers for a transaction;

(b) Details about the Board's decision not to proceed with an updated pre-signingmarket check;

(c) Details about the Board's decision not to solicit an indication of interest fromVestar in October 2010;

(d) Details about KKR and its dealings with management and Vestar, includingdetails about the Board's decision to let KKRlCenterview ask Vestar to join theSponsors' bidding group;

(e) Details about the Board's decision to let Barclays participate in the buy-sidefinancing of the Proposed Transaction;

(f) Details about the compensation Barclays expects to receive for participating inthe debt financing neceSSaIy for the Proposed Transaction;

(g) Details about any work Barclays has done for any of the Sponsors in the last twoyears, and fees paid or owed by any of the Sponsors to Barclays;

(h) Details concerning the analyses performed by Barclays in connection with theProposed Transaction, including among other things: (I) the projections andunderlying data; (ii) the basis for inputs, selection criteria, and assumptions in thesum-of-the-parts discounted cash flow analysis, (iii) the discounted analyst pricetarget analysis; and (Iv) the premiums paid in selected transactions analysis; and

(i) Details concerning the analyses performed by Perella (defined below) inconnection with the Proposed Transaction, including among other things: (i) theprojections and underlying data; (ii) the basis for inputs, selection criteria andassumptions in the sum-of-the-parts discounted cash flow analysis; (iii) thediscounted analyst price target analysis; and (iv) the premiums paid in selectedtransactions analysis.

The Company has scheduled a shareholder vote on the Proposed Transaction for February 15,

2011.

23

EPILOGUE

The Board's Financial Advisor Labored Thronghont The FlawedSales Process Under Incnrable Conflicts Oflnterest

Throughout the entire Sale of Del Monte, the Company's Board was advised by a

financial advisor that was laboring under incurable conflicts of interest. First, the Board gave

Barclays a strong incentive to see that a deal - any deal - closed. While Barclays was to be paid

$2.5 million upon delivery of its fairness opinion, its $23.5 million fee will be paid only if a sale

occurs. IOO With an extra $21 million at stake, Barclays had strong motivation to push a

transaction through, regardless of whether this transaction offers Del Monte's shareholders the

best value. Second, compounding this conflict, Del Monte's Board - astonishingly - agreed to let

Barclays provide buy-side financing to KKR while continuing to serve as the Company's sell-

side financial advisor - before reaching definitive agreement on price and without even inquiring

as to the exact amount of fees BaI'clays would stand to gain on the buy-side. 101 As a result,

Barclays now stands to earn twice the amount offees by acting on both sides of the transactionlO2

Having locked in a lucrative buy-side role, Barclays now has an incentive not just to push through

any deal in general, but to push through the Proposed Transaction in particular, regardless of the

interests of the Company's shareholders. Indeed, Managing Director James Ben acknowledged

that Barclays stands to earn substantially more executing this transaction as compared to any of

the strategic alternatives Barclays purportedly evaluated for the Company.IOJ While the exact

100 Such "[a]dditional compensation ... will be reduced by the amount of the fee previously paidby the Company to Barclays Capital upon delivery of its opinion." Proxy at 39.

101 Id. at 27; see also Martin Tr. at 54-56. That this dual role would pose a conflict was obviousfrom the outset. REDACTED

Ex. 22 at KKR 0000015.

102 Banks like Barclays get paid for actually placing the debt. Tarone Tr. at 23.

103 See Ben Tr. at 249-50, 311.

24

amount of the bonanza awaiting Barclays upon closing of the Proposed Transaction remains

hidden from shareholders (as the Proxy merely discloses that Bar'c1ays' $23.5 million sell-side fee

will be augmented by "significant compensation" on the buy-side '04 ), discovery has confirmed

that Barclays stands to gain approximately $26.8 million 105 from its provision of buy-side

financing, $3.3 million more than its sell-side fee. If another bidder emerges, Barclays stands to

I . b 'd fi . C 106ose Its UY-SI e mancmg lees.

In addition to the obvious conflict posed by Barclays' receipt of fees from both sides of

the deal, Barclays' agreement to provide financing creates an impermissible conflict for a more

fundamental reason: Barclays now has an affinnative interest to ensure that KKR not overpay for

Del Monte. As a buy-side lender, Barclays has a vested interest in making sure that the Sponsor

group does not overpay so as to ensure that its loan will remain sufficiently collateralized.

Barclays admitted as much in a letter to the Del Monte Board: "[I]n the event that Barclays

Capital is asked to provide acquisition financing to a buyer of the Company, the Company should

expect Barclays Capital to seek to protect its interests as a lender, which may be contrary to the

interests a/the Company."IO? Outrageously, however, Terence Martin, the Director who was the

Chairman of the Strategic Committee, testified that he could not recall ever seeing this letter,

which supposedly identified Barclays' conflicts and by which the Board supposedly waived

104 Proxy at 40.

105 Specifically, Barclays stands to earn approximately $28.6 million from providing buy-sidefinancing to KKR, as follows: (I) $1.5 milJion on the revolving credit facility; (2) $12.5 millionon the term loan; and (3) $12.8 million on the bonds. See Tarone Exs. 15, 16; Tarone Tr. at 207­10.

106 Tarone Tr. at 212-213; Ben Tr. 310-31 I.

107 Ben Ex. 39 at BARC_DLM_0011826 (emphasis added). See also Tarone Tr. at 166 ("The sellside is going to maximum price and the sponsor is going to try to pay as little as possible.").

25

them. lOB The notion, therefore, that the Board made a fully informed decision to "bless"

Barclays' conflicted role is simply not credible.

In permitting Bar'c1ays to participate on both sides of the deal, the Board did not even

take the rudimentary step ofasking whether there would be any sort of firewall between the teams

within Barclays working on the deal. When asked if the Board considered this, Mr. Martin

admitted that he "d[id] not know" whether there was any SOli of wall and that, to the extent the

Board was ever given infonnation on this, "that would have all come from [PJ Moses of

Barclays] as opposed 10 real probing on my parl."I09 Had the Board bothered to make this

inquiry, it would have discovered that, for most of the lifespan of the proposed Del Monte

transaction, Barclays made no efforts whatsoever to separate the M&A team from the financlng

team,110 REDACTED

III Indeed, Barclays' lead banker PJ Moses served on both the

M&A and financing sides of the deal,1I2 many other Barclays personnel were considered to be

"above the wall,',113 and Barclays regularly "Ioop[ed] in" 114 M&A and financing personnel on all

happenings in the deal. To the extent any wall existed at all, it was little more than a stage prop,

easily hurdled by even the most amateur Hollywood stuntman.

lOB Martin Tr. at 68-69, Martin Ex. 3.

109 Martin Tr. at 75-76 (emphasis added).

110 Barclays admits that to avoid the appearance of conflicts, it should erect a firewall betweeninvestment banking and buy-side financing, "as soon as [Barclays] knew that it would have apotential to be involved in the transition." Tarone Tr. at 154. Nevertheless, Ms. Tarone testifiedthat there was never any attempt to create such a firewall until some time during the week ofNov .8,2010 (Tarone Tr. at 154), well after Barclays had provided detailed financing analyses to KKR.

III KKR Ex. 31.

112 Tarone Tr. at 153-59.

113 I d. at 168-69.

114 Id. at 171-72.

26

Confronted at its deposition with these myriad conflicts of interest, Barclays had no

choice but lamely to rely upon the defense that working under such glaring conflicts amounted to

"standard every day practices," was nothing "out of the ordinary," and that there are "shades of

gray with everything.,,'l5 Tarone even testified that although "sell side and buy side always have

slightly different objectives," she believed "it makes it more fair" if both sides are represented by

two senior members ofthe same organization. 116

The Board's "solution" to Barclays obvious conflict was to retain a second financial

advisor, Perella Weinberg Partners LP ("Perella"). Perella's anemic, five-day engagement

amounted to little more than delivering a "fairness opinion" for which it received a $3 million fee.

Perella did no substantive work, making clear that Baldays was steering the ship."7 And, of

course, Del Monte picked up the tab for this additional "fairness opinion," which was only

necessary because Barclays was on both sides ofthe Proposed Transaction. lIs

Alfred Hitchcock would have tipped his hat to PJ Moses' direction of "The Sale of Del

Monte." Recognizing that, as Barclays has shown: "There's nothing to winning, really. That is,

if you happen to be blessed with a keen eye, an agile mind and no scruples whatsoever,,,119

115 Id. at 159, 160.

116 Tarone Tr. at 164-65. That Barclays went as far as to claim, in an effort to defend itspractices, that it would have no problem were its counsel here, Sullivan & Cromwell, to besimultaneously representing the plaintiff in this very action highlights the untenability of itsposition. Id. at 166.

117 See Ben Tr. at 339-40.

118 Ben Tr. at 244-46.

119 See http://www.goodreads.com/author/quotes/9420.Alfred_Hitchcock.

27

ARGUMENT

To obtain injunctive relief, Plaintiff needs to establish that: (I) it is likely to succeed on

the merits of its claims, (2) it will suffer imminent, irreparable harm absent an injunction, and

(3) the balance of equities favors an injunction. See In re Netsmart Techs., Inc. S'holders Litig.,

924 A.2d 171, 191-92 (Del. Ch. 2007) (citing Revlon, Inc. v. MacAndrews & Forbes Holdings,

Inc., 506 A.2d 173, 179 (Del. 1986». Plaintiff satisfies all three criteria.

I. PLAINTIFF HAS DEMONSTRATED A REASONABLE PROBABILITY OFSUCCESS ON THE MERITS

Having decided to sell the Company in an all-cash transaction, Del Monte's directors had

one singular legally mandated focus: "the maximization of the company's value at a sale for the

stockholders' benefits." Revlon, 506 A.2d at 182; see also Lyondell Chem. Co. v. Ryan, 970 A.2d

235, 242 (Del. 2009) (Revlon's value-maximization rule applies "when a company embarks on a

transaction - on its own initiative or in response to an unsolicited offer - that will result in a

change of control"). They were required to undertake a "logically sound process to get the best

deal that is realistically attainable." Netsmart, 924 A.2d at 192. In evaluating a corporate board's

compliance with Revlon's value-maximizing obligation, Delaware courts apply a "heightened

standard of reasonableness review" that includes two "key features":

(a) a judicial determination regarding the adequacy of the decision-making processemployed by the directors, including the information on which the directorsbased their decision; and

(b) a judicial examination of the reasonableness of the directors' action in light of thecircumstances then existing.

In re Toys "R" Us, Inc., S'holder Utig., 877 A.2d 975, 1000 (Del. Ch. 2005) (citing Paramount

Commc'ns, Inc. v. QVC Networks, Inc., 637 A.2d 34,45 (Del. 1994». Essentially, under Revlon,

directors must prove "that they were adequately informed and acted reasonably." ld.,· see also

28

Forgo v. Health Grades, Inc., C.A. No. 5716-YCS, at ]3 (Del. Ch. Sept. 3, 2010)

(TRANSCRIPT) ("[I]t's defendants' obligation to prove reasonableness.").

The Del Monte directors fail on both counts. First, the process was woefully inadequate.

The Del Monte Board structured a process that allowed Bm·clays to completely run the sale with

virtually no oversight. Barclays ginned up the transaction by marketing the idea to private equity

firms in the fall of 2009 without ever talking to Del Monte, and then packaged the two most

like]y competitive bidders into a single group that eliminated the prospect of any competitive

bidding, but guaranteed for itself a nearly $50 million payday by serving on both sides of the

transaction. Second, having allowed Barc]ays free reign, the Del Monte Board made severa]

critical and demonstrably unreasonable decisions that not only were not designed to maximize

value for shareholders, but in fact virtually eliminated the prospect of De] Monte shareholders

being offered the maximum available price for their shares. The underlying process here was so

inadequate that injunctive relief is appropriate to ensure the adequate protection of Del Monte's

shareholders. See, e.g., In re Hally Farms Corp. S'holders Litig., 1988 WL ]43010, at *5 (Del.

Ch. Dec. 30, 1988) (preliminary injunction granted where the board's sale process "was so

substantially flawed that the Board's actions ... were not likely to have maximized the value of

the corporation for its shareholders. .. ").

A, The Entire Sale Process Was Fatally Flawed By The Del Monte Board'sLack Of Oversight Of Barclays

The Sale of Del Monte was produced and directed, from the initial script to the after-

party, by Barclays. Barclays generated interest among the private equity community, selected the

private equity firms to be contacted, and thereafter purposefully combined the two most likely

competing bidders, securing for itself profitable seats on both sides of the table, while effectively

eliminating the prospect of any competitive bidding that could result in Del Monte shareholders

29

being presented with the maximum available price for their shares. l2o Had the Board not been

asleep throughout the entire sales process, it would not have created an environment wherein

Barclays could act so freely and improperly. The apparent lack of oversight by the Board

in-emediably tainted the sales process and prevented the Board from discharging its duty to

maximize shareholder value. This fact alone wan'ants injunctive relief.

In Mills Acquisition Co. v. Macmillan, Inc., 559 A.2d 1261 (Del. 1989), the Supreme

COUlt held that injunctive relief was required where a corporate board's systemic lack of

oversight permitted management and its investment banker to undenuine the integrity of an

auction process in order to favor a prefen-ed bidder - ironically KKR itself. In Mills, conflicted

directors/managers were bidders in an auction by which control of Macmillan would be sold.

Macmillan received competing bids from various potential acquirers, including a management

sponsored buyout of the compauy by KKR. Id. at 1272. Senior management, who would receive

a significant ownership interest in the new company if KKR emerged as the successful bidder,

essentially rigged the bidding process by, inter alia, installing their financial advisor to conduct

the "auction" and clandestinely passing competitive bidding information to KKR. Id. at 1275.

Macmillan's board, while purportedly independent, failed to adequately oversee the auction

process, thus creating the circumstances that enabled the conflicted management to exploit the

situation to favor their interests. Id at 1280, 1281, 1284 n.32 ("Although the Macmillan board

was fully aware of its ultimate responsibility for ensuring the integrity of the auction, the directors

120 In addition to contravening its own code of conduct, Barclays' sharing of confidential clientinformation and facilitation of Vestar's and KKR's breaches of their confidentiality agreementsalso violated New York Stock Exchange Rule 476(a)(6), which subjects registered members todisciplinary sanctions for engaging in "conduct or proceeding inconsistent with just and equitableprinciples of trade." See, e.g., Heath v. Securities and Exchange Comm., 586 F.3d 122, 131 (2dCir. 2009) (holding that "[Rule 476(a)(6)] is concerned with enforcing ethical standards ofpractice in the securities industry and is violated by a breach of confidence if such breachamounts to unethical conduct.").

30

wholly delegated the creation and administration of the auction to an array of [contlicted

management's] hand-picked investment advisors.").

In enjoining the proposed transaction with KKR, the Supreme Court recognized that the

board's lack of oversight was inexcusable and tainted the entire process:

While a board of directors may rely in good faith upon "information, opinions,reports or statements presented" by corporate officers, employees and experts"selected with reasonable care," ... it may not avoid its active and direct duty ofoversight in a matter as significant as the sale of corporate control. . .. Thisfailure of the Macmillan board significantly contributed to the resultingmismanagement of the bidding process. When presumably well-intentionedoutside directors remove themselves from the design and execution of an auction,then what occUlTed here, given the human temptations left unchecked, wasvirtually inevitable.

Id. at 1281. Moreover, the Court held, where the supposedly independent directors were mislead

by those to whom they had abdicated their responsibility for conducting the auction, the board's

decision to accept a merger proposal fell well outside the purview of any rational business

judgment and could not be sustained. 12] Ultimately, the Supreme Court recognized that the

fundamental lack of oversight itself amounted to a breach of the duty of loyalty warranting

injunctive relief:

[W]e entertain no doubt that this board's virtual abandonment of its oversightfunctions ... was a breach of its fundamental duties of loyalty and care in theconduct of this auction. More than anything else, it created the atmosphere inwhich Evans, Reilly and others could act so freely and improperly.[D]ecisions reached under such circumstances [cannot] be sustained.

Id. at 1284 n.32 (emphasis added).

12] Id. at 1283-84 ("[W]hen corporate directors rely in good faith upon opinions or repOlis ofofficers and other experts "selected with reasonable care," they necessarily do so on thepresumption that the infonnation provided is both accurate and complete. Normally, decisions ofa board based upon such data will not be disturbed when made in the proper exercise of businessjudgment. However, when a board is deceived by those who will gain from such misconduct, theprotections girding the decision itself vanish. Decisions made on such a basis are voidable at thebehest of innocent parties to whom a fiduciary duty was owed and breached, and whose interestswere thereby materially and adversely affected.").

31

That Mills involved a bidding process with conflicted management, while the conflict

here lies with the Company's financial advisor Barclays, is of no moment. 122 Both in Mills and

here, the respective boards failed to exercise adequate oversight over the auction process and

created the circumstances that resulted in an uninformed and ultimately legally unsustainable

decision regarding a change in control of the company. In Mills, conflicted management mislead

the board by not telling them they had tipped off KKR in the bidding process. Id. at 1283

("Given the materiality of these tips [to KKR], and the silence of Evans, Reilly [president and

chief operating officer], and Wasserstein [the banker], in the face of their rigorous affirmative

duty of disclosure at the September 27 board meeting, there can be no dispute but that such

silence was misleading and deceptive. In short, it was a fraud upon the board." (emphasis

added)). Likewise, here, Barclays misled the Del Monte directors by not informing them that

Barclays had undermined any competitive bidding by urging KKR/Centerview to team up with

Vestal' in violation of their confidentiality agreements,123 and by securing for itself a role in the

buy-side financing before even approaching the Del Monte Board to ask its pennission. l24 The

Del Monte Board's failure to exercise adequate oversight over Bat"clays, therefore, impaired the

integrity of the entire sale process and, as in Mills, the proposed transaction with KKR should be

enjoined.

122 As the Court in Mills recognized, "[a]lthough Wasserstein [the banker] was not a Macmillanofficer or director, it is bedrock law that the conduct of one who knowingly joins with a fiduciary,including corporate officials, in breaking a fiduciary obligation, is equally culpable." 559 A.2d at1283-84 n.33.

123 Ben Ex. 23; Ratzan Tr. at 35-36; Brown Tr. at 114-15.

124 KKR Ex. 28; Brown Tr. at 134-37.

32

B. The Specific Decisions Of The Del Monte Board Were Not ReasonablyDesigned To Maximize Shareholder Valne

Even beyond the systemic lack of oversight that pennitted Barclays to run roughshod

over the process and eliminate the potential for any competitive bidding. the Del Monte Board

failed to properly execute its duties under Revlon when it did take affirmative action. When

presented with specific choices that could have promoted shareholder value, the Del Monte Board

chose instead to implement decisions that were decidedly contrary to shareholders' interests.

1. The Board's Decision To Focus Only On Private Equity Firms WasNot Reasonably Calculated To Lead To Maximum Value ForShareholders

From the outset of the sales process, Del Monte's Board focused only on private equity

finns, not strategic buyers. Proxy at 24. This decision needlessly limited the pool from which

potential bids could emerge, and accordingly was not reasonably calculated to maximize

shareholder value. In re Netsmart Technologies Shareholder Litigation, 924 A.2d 171 (Del. Ch.

2007) is instructive. There, the Court granted a preliminary injunction where, inter alia, plaintiffs

alleged that the board had breached its Revlon duties by focusing only on private equity firms,

noting:

[T]he Netsmart board rapidly narrowed its options [to private equity tinns]. Bythe time the Special Committee began its work, the inertial energy of the salesprocess was already clearly directed at a private equity deal. The record evidenceregarding the consideration of an active search for a strategic buyer is moreindicative of an after-the-fact justification for a decision already made, than of agenuine and reasonably-informed evaluation of whether a targeted search mightbear fruit. For all these reasons, I believe the plaintiffs have demonstrated areasonable probability that they will later prove that the board's failure to engagein any logical efforts to examine the universe of possible strategic buyers and toidentifY a select group for targeted sales overtures was unreasonable and a breachof their Revlon duties.

33

924 A.2d at 199 (emphasis added).125 The Proxy here flatly admits that the Del Monte Board

focused entirely on private equity buyers (the lone exception being REDACTED which

inselted itself into the mix). Not only did the Del Monte Board fail timely to consider strategic

buyers before signing the deal with the Sponsors, but it appointed Barclays to conduct the go

shop even though Barclays had "signaled no strategies" from the get-go and stood to lose nearly

$25 million in financing fees if a strategic buyer emerged. As in Netsmart, the Del Monte

Board's affinnative decision to limit its consideration to private equity buyers was not reasonably

designed to maximize shareholder value and violated Revlon.

2. The Board's Decision To Reopen Bidding With KKR Alone Was NotReasonably Calculated To Lead To Maximum Value

By electing to reopen discussions with KKR/Centerview only, to the exclusion of the

other interested bidders (see Martin Tr. at 26-27), the Del Monte Board took steps inconsistent

with its duty to maximize shareholder value. Revlon, 506 A.2d at 184. For example, in In re

Holly Farms Inc. Shareholder Litigation, the Court issued a preliminary injunction to enjoin

certain provisions of a merger agreement, finding that the company's board of directors breached

its Revlon duties by negotiating with only one of two interested parties. The Court held:

It is obvious from the record that the Board negotiated with [putative acquiror]ConAgra throughout the evening in an attempt to extract the highest possiblestock swap ratio from it. . .. The Board, however, did not make any seriousefforts to likewise negotiate with [previous bidder] Tyson Foods nor encourageTyson Foods to put its best offer on the table ... The Board, therefore, failed to

125 Defendants likely will argue that it was "reasonable" not to pursue strategic buyers becausepast efforts at effecting such a deal had failed. The court in Netsmart flatly rejected thisargument. Compare Netsmart, 924 A.2d at 196 ("What strategic buyers might have desired in1999,2001 or 2003 often will be very different than what they would desire in 2006. To thatpoint, the key decision makers will often differ over time spans of that length. As important,Netsmart itself had been transformed through a host of acquisitions and lucrative contracts overthat extended period.") with DLM_0005893-5909, at 5900 ("This group [of private equity finnscontacted in early 2010] was selected based on the Company's past experience in discussionswith other parties (including previous discussions with certain strategic buyers that elected not topursue an acquisition of the Company.") (emphasis added). Those previous discussions were atleast two years old. Ben Tr. at 40-45.

34

act rationally to meet the high standards articulated in Revlon. Had the Boarddisclosed to both parties that Holly Farms was to be sold. .. , the best bidswould undoubtedly have been placed on the table and the goal of valuemaximization would thus have been served. Unfortunately, there is no way ofknowing what added value a genuine auction of Holly Farms might have brought... The withholding of the basic information that the sale of the corporation wasto take place was therefore fatally flawed under the Revlon mandate. This colorsall other actions taken by the Board ...

1988 WL 143010, at *4. See also In re The Topps Co. S'holders Lilig., 926 A.2d 58, 92-93 (Del.

Ch. 2007) (enjoining merger where target refused to negotiate with a potential bidder who may

have made an offer superior to that contemplated under merger agreement); Paramount, 637 A.2d

at 51 ("QVC's unsolicited bid presented the opportunity for significantly greater value for the

stockholders and enhanced negotiating leverage for the directors. Rather than seizing those

opportunities, the Paramount directors chose to wall themselves off from material information

which was reasonably available and to hide behind the defensive measures as a rationalization for

refusing to negotiate with QVC or seeking other alternatives."); Revlon, 506 A.2d at 184

("[W]hen a board ends an intense bidding contest on an insubstantial basis, ... the action caunot

withstand the enhanced scrutiny which Unocal requires of director conduct."). The

impermissible favoritism shown to KKR via the Board's decision to reopen bidding to KKR

alone was not reasonably calculated to maximize shareholder value.

3. The Board's Decision To Allow Vestar To Join TheKKRlCenterview Group Was Not Reasonably Calculated ToMaximize Shareholder Value

After failing to conduct a pre-signing market check or to go back to any of the previously

interested parties prior to signing the Merger Agreement, the Board effectively eliminated any

chance of a higher bid emerging by permitting Vestar - which previously had indicated a value

for the Company of almost $100 million more than had KKR126 - to join forces with

126 See supra n. 32.

35

KKR/Centerview. 127 According to the Proxy, the Board's stated reason for pennitting Vestar to

join KKRfCenterview was its detennination that "Vestar's prior experience in the food industry

would make them an ideal partner for KKR/Centerview." Id. at 27.

Once Del Monte was for sale for cash, any consideration to the Company's ongoing

interests or operations became completely irrelevant. Whether Vestar's "experience in the food

industry," therefore, would aid KKR and Centerview in any way was beside the point. Rather,

the "directors' role changed from defenders of the corporate bastion to auctioneers charged with

getting the best price for the stockholders at a sale of the company." Revlon, 506 A.2d at 182.

See also Lyondell, 970 A.2d at 242 ("There is one Revlon duty 'to [get] the best price for the

stockholders at a sale of the company."') (quoting Revlon, 506 A.2d at 182); TW Svcs., Inc. v.

SWT Acquisition Corp., 1989 WL 20290, at *7 (Del. Ch. Mar. 2, 1989) ("In the setting of a sale

of a company for cash, the board's duty to shareholders is inconsistent with acts not designed to

maximize present share value, acts which in other circumstances might be accounted for or

justified by reference to the long run interest of shareholders. .. [T]he rationale that recognizes

the appropriateness of sacrificing achievable share value today in the hope of greater long term

value, is not present when all of the current shareholders will be removed from the field by the

contemplated transaction."). Consideration ofVestar's supposed experience in the food industry

was legally improper. KKR did not need Vestar to raise its bid. There was never any suggestion

that adding Vestar would cause an increase in the price offered. 128

Because Vestar's previous indication of interest bested KKR's by nearly $100 million, it

was demonstrably unreasonable for the Del Monte Board, when approached with KKR's request,

not to insist that KKR abide by the tenns of the February 2010 confidentiality agreement. The

127 Proxy at 24.

128 Brown Tr. at 123-24.

36

Del Monte Board's decision not to reach out to Vestal' to see if it would submit a higher bid

independent of KKR was not reasonably designed to maximize shareholder value and violates

Rev/on.

4. The Board's Decision To Permit Barclays To Provide Buy-SideFinancing Was Contrary To Its Obligation To MaximizeShareholder Valne

This Court recognizes the fundamental role a company's financial advisor plays in

evaluating a change in control transaction. See, e.g., Simonetti Rollover IRA v. Margolis, 2008

WL 5048692, at *8 (Del. Ch. June 27, 2008) ("The financial advisor's opinion of financial

fairness for a proposed transaction is one of the most important process-based underpinnings of a

board's recommendation of a transaction to its stockholders and, in turn, for the stockholders'

decisions on the appropriateness of the transaction.").

Barclays' conflicts call into question the validity of the entire sales process. Barclays

stood on both sides ofthe very transaction at issue - standing to gain tens of millions ofdollars if,

and only if, the Proposed Transaction closed. Although the Proxy discloses that during the week

of November 15, 2010, KKR raised with the Company and Barclays the possibility of Barclays

providing buy-side financing, discovery has revealed that KKR had already had discussions with

Barclays by this time regarding its participation, and that Barclays was already running the

numbers prior to the Board's concurrence,I29 The substantial financial incentives on both sides of

the Proposed Transaction conflict Barclays and call into question Barclays' ability to opine on

fairness or even advocate on behalf of the Company during the negotiations with the Sponsors

over the merger price, go shop provisions, and the termination fee. 130 These decisions by the

129 See, e.g., Tarone Ex. 6; BARC-DLM_0024976-24977; see Brown Tr. at 133-34; KKR Ex. 28.

130 Indeed, as a paIiicipant in the buy-side financing, Barclays has an interest in ensuring thatKKR not ever pay for Del Monte so as to ensure that its loan remains sufficiently collateralized.

37

Board were "unfortunate, in that [they] tend to raise eyebrows by creating the appearance of

impropriety, playing into already heightened suspicions about the ethics of investment banking

firms." Toys "R" Us, 877 A.2d at 1006. 131

These are precisely the types of conflicts that this Court has deemed sufficient to call into

question the validity of the entire sales process. For example, in Ortsman v. Green, 2007 WL

702475 (Del. Ch. Feb. 28, 2007), plaintiffs challenged the participation of the company's

financial advisor in buy-side financing for the challenged transaction. Even though the company

had retained a separate financial advisor to render a fairness opinion, Vice Chancellor Lamb

granted plaintiffs' motion for expedited discovery because plaintiffs had alleged that "UBS's

conflict actually affected the sales process when UBS advised the Adesa board not to pursue an

indication of interest from a strategic buyer that UBS believed would not be interested in a

leveraged transaction and, thus, would not be a source for it of fees ITom debt financing." Id. at

Khanna v. McMinn, 2006 WL 1388744 (Del. Ch. May 9, 2006) is also instructive. In

Khanna, plaintiffs alleged that Covad's investment banker had a conflict of interest with regard to

a merger because it had provided a bridge loan to the target and thus had an interest in ensuring

the closing of the transaction. Id. at *25. Under these facts, the Court held that plaintiffs had

raised facts sufficient to "create a reasonable doubt that the transaction was the product of a valid

exercise of business judgment." Id.

131 Barclays' bankers simply had no moral compass with respect to the Proposed Acquisition.The bankers, long experienced in the ways of Wall Street, were incapable ofeven recognizing, letalone acknowledging, that a conflict could be created by playing both sides of a transaction.Tarone Tr. at 164-65 ("I don't know what the different interests necessarily are... I wouldalmost think [that having the same bankers on each side] makes it more fair.").

132 The case settled before trial. Ortsman v. Green, 2007 WL 3325999 (Del. Ch. Aug. 27,2007).

38

Notably, in at least one instance, this Court refused to approve the settlement of a Revlon

claim based, inter alia, on concerns about a banker's independence. In In re Prime Hospitality,

Inc. Shareholders Litigation, 2005 WL 1138738 (Del. Ch. May 4, 2005), this Court relused to

approve a settlement that jettisoned a Revlon claim in favor of a disclosure-only resolution where

plaintiffs had alleged that the company's financial advisor had played an inappropriate dual role

in the transaction. The conflict at issue in Prime Hospitality was much less acute than that at

issue here. In Prime Hospitality, Bear Stearns' putative conflict was that it had previously

advised Blackstone - the ultimate acquiror of Prime - in connection with two unrelated

investments in Prime's sector while here, Barclays stands on both sides of the velY transaction at

issue.

The Del Monte Board's post-hoc retention of Perella to deliver a "second" fairness

opinion is insufficient to purge the stain of Barclay's substantial conflicts throughout the sale

process. The Board will not be relieved of its Revlon obligations based on its "ability to secure an

expensive fairness opinion that (Quelle surprise!) concludes that the offer is 'fair' to the

shareholders." Ryan v. Lyondell Chem. Co., 2008 WL 4174038, at *1 n.12 (Del. Ch. Aug. 29,

2008). That any bank - let alone a second bank that rendered an opinion five days after being

engaged - opined that the price offered was "fair" says nothing as to whether the Board did

everything it could have done (or behaved reasonably in seeking) to maximize shareholder value.

Notably, Perella did only what it was paid to do: opine that the $19 a share offered was "fair,

from a financial point of view," Proxy at 40. It did not review and opine on the process, canvas

the market, or analyze whether $19 was the best value reasonably available.

39

5. The Del Monte Board's Appointment Of Barclays To Conduct The"Go Shop" Rendered The Process Wholly Illusory And Was NotReasouably Designed To Maximize Shareholder Value

The Del Monte Board's affirmative decision to appoint Barclays to run the go shop

process is inexcusable. As a designated financier for KKR, Barclays had every incentive not to

find a competing bidder - particularly a potential strategic buyer that would not have needed

financing at all. This underlying conflict raises such doubt regarding the adequacy of the go shop

process that this Court simply cannot trust the outcome. See Prime, 2005 WL 1138738, at *12

(rejecting settlement that jettisoned Rev/on claim and questioning "how can the Court attribute

weight to the notion that Bear Stearns [the allegedly conflicted banker] was retained by Prime to

shop the company?"). Although a properly-conducted "go shop" would have allowed the Board

to "shop like Paris Hilton," the presence of Barclays undoubtedly put a damper on the unfettered

shopping spree that otherwise might have taken place during the "go shop." Topps, 926 A.2d at

86.

The Del Monte Board's designation of Barelays is even more damning considering that a

wholly uninvolved investment banker - REDACTED - had offered its assistance in shopping

the Company, REDACTED

133 At the

very least, the Del Monte Board could have appointed Perella - the other financial advisor that

the Company a/ready had retained - to conduct the go shop. The Del Monte Board's failure to

appoint an unconflicted advisor to conduct the go shop is even more outrageous given the fact

that, according to Del Monte director Terence Martin, the Del Monte Board never bothered to

oversee Barclays' activities during the go shop period. 134

133 KKR Ex. 33; Brown Tr. at 146-47.

134 See, e.g., MaItin Tr. at 65-66.

40

C. The Board Has Not Disclosed All Information Material To TheShareholders' Decision On The Merger

Directors of Delaware corporations "are under a fiduciary duty to disclose fully and fairly

all material information within the board's control when it seeks shareholder action." Arnold v.

Soc'y for Sav. Bancorp., Inc., 650 A.2d 1270, 1277 (Del. 1994) (citations omitted); see also

McMullin v. Beran, 765 A.2d 910, 917 (Del. 2000). The Board breached its fiduciary duty of

disclosure by causing or permitting the Proxy to omit material facts regarding, inter alia,

(1) Barclays' disabling conflicts of interest; (2) the fairness opinions upon which Del Monte

shareholders are being asked to rely in voting on the Proposed Transaction; (3) the sales process;

(4) KKR's secret communications with Vestar and the real story behind its November 2010

"request" to allow Verstar to join its group; and (5) the blatant inadequacies of the "go shop"

process.

I. The Proxy Fails To Disclose The True Nature AndExtent of Barclays' Conflicted Role As Financial Advisor

In evaluating the advice of a company's directors to vote in favor of a transaction, it is

imperative for shareholders to be informed whether the company's advisors suffered a conflict of

interest, and ifso, the extent of that conflict. As explained by the Court in by Simonetti:

Perhaps it is unavoidable that financial advisors regularly seem to suffer fromconflicts of one degree or another, but, if that is the likely state of affairs, then thestockholders are entitled to know what material factors, if any, may bemotivating the financial advisor. The Company is asking its stockholders to havefaith in [the investment advisor] and to rely upon its expertise; [the investmentadvisor] may well be deserving of that confidence, but the stockholders haveevery right to expect the Company to share with them any extraneous, substantialreasons [the investment advisor] may have for seeing that the transaction isconsummated.

2008 WI. 5048692, at *14. See also In re John Q. Hammons Hotels Inc. S'holder Utig., 2009

WI. 3165613, at *17 (Del. Ch. Oct. 2, 2009) ("[T]he compensation and potential conflicts of

interest of the special committee's advisors are important facts that generally must be disclosed to

41

stockholders before a vote."); Ortsman, 2007 WL 702475 (in granting expedited discovery, court

noted stockholders would want information about the conflict presented by UBS serving as the

Company's financial advisor and also providing debt financing).

The Proxy contains insufficient information about Barclays' interests in the closing of the

Proposed Transaction. While the Proxy does disclose that Barclays stands on both sides of the

transaction, it fails to disclose how much Barclays stands to earn from its provision of buy-side

financing to KKR, demurring merely that this additional compensation will be "significant.l'135

This omission alone is sufficient to warrant injunctive relief:

A financial advisor's own proprietary financial interest in a proposed transactionmust be carefully considered in assessing how much credence to give its analysis.For that reason, the peculiar benefits of the Merger to UBS, beyond its expectedfee, must also be disclosed to TriZetto's stockholders. In this instance, full andcomplete disclosure requires quantification.

Simonetti, 2008 WL 5048692, at **8-9 (emphasis added).

The Proxy also fails to disclose the amount of compensation Barclays previously received

from engagements with Del Monte and KKR. This also walTants injunctive relief. In Art

Technology, ATG and Oracle agreed to merge. Morgan Stanley was ATG's financial advisor.

The Proxy failed to disclose that Morgan Stanley had performed extensive work for Oracle, and

was continuing to provide services to Oracle at the same time it represented ATG. Citing

Simonetti, the Court preliminarily enjoined the stockholder vote on the merger until ATG and

Oracle disclosed to ATG's stockholders the aggregate compensation paid by Oracle to Morgan

Stanley in each year (2007-2010) and a description of the nature of the services provided to

Oracle. See In re Art Tech. Group S'holders Litig., C.A. No. 5955-CC, Order Granting Pre!' Inj.,

at I (Del. Ch. Dec. 21, 2010). Here, the need for disclosures addressing Barclays' conflicts of

135 Proxy at 40.

42

interest is even more acute than in Art Technology, because Barclays stands on both sides of the

very same transaction.

In addition to the bare "numbers" surrounding Barclays' fee for its dual role, the Proxy

omits numerous material facts that bear on this role. Specifically, the Proxy fails adequately to

disclose details about the Board's decision to let Barclays participate in the financing of the

Proposed Transaction, noting only that the Board "weighed the benefits and risks associated with

allowing Barclays ... to participate in the financing" and that among the factors the Board

considered in alTiving at its conclusion to recommend the Proposed Transaction was "the

reputation of the debt and equity financing sources which, in the reasonable judgment of our

board of directors, increase the likelihood of such financings being completed.,,]36 The Proxy, in

its current form, leaves the following material questions unanswered:

• Whether Barclays was needed as a financing source at all;

• Whether the Sponsors contacted other financing firms to meet their financingneeds;

• What kind of financing KKR/Centerview had lined up with the other lendersbefore Barclays was invited to participate in the financing and what Del Monte'sBoard knew about that;

• The "benefits and risks" the Board actually considered in deciding to allowBarclays to participate in the financing;

• Why Barclays' providing financing to the Sponsors did not preclude it fromadvising the Company;

• Whether Barclays' participation increased the likelihood that the debt financingwould be completed;

• Whether the Sponsors could have completed the acquisition at $19.00 withoutBarclays; and

136 Proxy at 27 and 30.

43

• Whether the amount of financing heing provided actually increased onceBarclays entered on the scene Of, rather, the amount remained the same but wasspread among more lenders.

2. The Proxy Omits Material Information Regarding The FairnessOpinions of Barclays and Perella

Information that bears on the reliability of the financial advisor's fairness

opinions is plainly material to a shareholder in deciding how to vote on a merger.

Simonetti, 2008 WL 5048692, at *8. The Proxy omits material information concerning

the fairness opinions on which Del Monte's shareholders are being asked to rely in voting

on the Proposed Transaction. Specifically, while the Proxy describes the bottom line

opinions arrived at and a general overview of the types of valuation analyses the advisors

performed in arriving at these opinions, the Proxy does not disclose material details

concerning the analyses performed by Barclays and by Perella in connection with the

Proposed Transaction, including, among other things, (i) the projections and underlying

data, (ii) the basis for inputs, selection criteria, and assumptions in the sum-of-the-parts

discounted cash flow analysis, (iii) the discounted analyst price target analysis, and (iv)

the premiums paid in selected transactions analysis. "[S]tockholders are entitled to a fair

summary of the substantive work performed by the investment bankers upon whose

advice the recommendations oftheir board as to how to vote ... rely" because "[t]he real

informative value of the banker's work is not in its bottom-line conclusion, but in the

valuation analysis that buttresses that result." In re Pure Res" Inc. S'holders Litig., 808

A. 2d 421, 449 (Del. Ch. 2002). In the absence of such information, the Proxy is

materially incomplete and misleading.

44

With respect to the respective Discounted Cash Flow Analyses conducted by Bar'c1ays

and Perella, the Proxy fails to disclose the unlevered free cash flow projections used to create

those analyses. As this Court has previously noted, "management's best estimate of the future

cash flow of a corporation that is proposed to be sold in a cash merger is clearly material

information." Marie Capital Master Fund, Ltd. v. PLATO Learning, Inc., 2010 WL 1931084, at

*2 (Del. Ch. May 13,2010); see also Netsmart, 924 A.2d at 200 ("When stockholders must vote

on a transaction in which they would receive cash for their shares, information regarding the

financial attractiveness of the deal is of particular importance. This is because the stockholders

must measure the relative attractiveness of retaining their shares versus receiving a cash payment,

a calculus heavily dependent on the stockholders' assessment of the company's future cash

flows."); Simonetti, 2008 WL 5048692, at * 10 ("A proxy statement should 'give the stockholders

the best estimate of the company's future cash flows as of the time the board approved the

[transaction].''') (quoting Netsmart, 924 A.2d at 203).

In their fairness opinions, both Barclays and Perella claim to have relied on Del Monte's

management's cash flow projections in perfonning their discounted cash flow analyses (Proxy at

33,41,47), but the Proxy provides only a "summary" of these management projections. [d. at 48.

Indeed, Barclays perfonned an illustrative discounted cash flow analysis in which it calculated

the net present value of Del Monte's unlevered free cash flows for 2011 through 2016 relying on

management provided financial projections for 2011 to 2014 (id. at 38-39). Similarly, Perella

performed a discounted cash flow analysis for January 1,2011 through April 30, 2011 and during

fiscal years April 30, 2012 through 2014, relying on those same management financial

projections. Id. at 45. As such, the financial projections are material to Del Monte shareholders.

See PLATO, 2010 WL 1931084, at *2 (holding that "the proxy statement omits material

infonnation by, for reasons not adequately explained, selectively removing the free cash flow

45

estimates from the projections provided to PLATO's stockholders"). Nevertheless, those

projections are not disclosed in the Proxy.

In addition, with respect to Barclays' Discounted Cash Flow Analysis, the Proxy fails to

disclose the assumptions used by Barclays (growth rates, margins, etc.) to extrapolate

management's projections for an additional two years or to disclose how Barclays derived the

range of terminal EBITDA multiples (6.5x to 7.5x) and discount rates (7.5% to 8.5%) used in its

analysis. With respect to Perella's Illustrative Discounted Cash Flow Analysis, the Proxy fails to

disclose the "other adjustments" made to EBlTDA to arrive at unlevered free cash flow, how

stock-based compensation was treated in the analysis, and how Perella derived the range of

terminal EBlTDA multiples (6.5x to 7.5x) and discount rates (7.5% to 8.5%) used in its analysis.

As a result, the Proxy is misleading as it omits material information necessary to Del Monte's

shareholders to evaluate the Proposed Transaction. See Netsmart, 924 A.2d at 203-04 (holding

that "when a banker's endorsement of the fairness of a transaction is touted to shareholders, the

valuation methods used to arrive at that opinion as well as the key inputs and range of ultimate

values generated by those analyses must also be fairly disclosed").

3. The Proxy Provides A Misleading Account Of The Sales Process

The Proxy fails to disclose the facts and circumstances sUlTounding the Board's decision

to approve the Sponsors' offer of $19 per share, noting merely that the "board of directors

unanimously detennined that the merger was fair to and in the best interest of the Company and

its stockholders." Proxy at 28. The directors' duty of disclosure required them, having "traveled

down the road of partial disclosure of the history leading up to the Merger and used the vague

language described," to "provide the stockholders with an accurate, full, and fair characterization

of those historic events." Arnold, 650 A.2d at 1280. Facts relating to the sale and negotiation

process are material to shareholders because they are critical to a determination regarding the

46

adequacy or inadequacy of the Company's negotiations for the best price on behalf of

shareholders. See, e.g., GantZer v. Stephens, 965 A.2d 695, 71 0-11 (Del. Sup. 2009); Simonetti,

2008 WL 5048692, at *12 (holding that undisclosed bid was material and required disclosure so

shareholders could make an informed choice of whether to vote for the merger). The Proxy omits

material details concerning the sales process and the Board's ultimate decision to support the

Proposed Transaction, including:

(a) Details about why the Board chose to solicit only financial buyers and notstrategic ones in the first quarter of 20 I 0;

(b) Details about the Board's decision not to proceed with an updated pre-signingmarket check in the fall of2010;

(e) Details about the Board's decision not to solicit an indication of interest fromVestal' in October 2010; and

(d) The role of Barclays in orchestrating the entire Transaction.

Del Monte's shareholders are entitled to some explanation of these decisions. See Nagy v.

Bistricer, 770 A.2d 43, 60 (Del. Ch. 2000) (holding that shareholders were entitled to an accurate

description of the "process" directors used "in coming to their decision to support the Merger").

4. The Proxy Fails To Disclose the Illusory Nature of TheGo Shop Process

The Proxy's description of the "go shop" process is insufficient in failing to disclose

Barclays' self-interest in ensuring that the KKR deal closed. Likewise, the Proxy fails to disclose

that the Special Committee supposedly overseeing the go shop never had any contacts with any of

the companies that were supposedly contacted, did not know what Baldays may have said to any

potential suitors, and that the Chairman of the Special Committee testified that he could not recall

ever even seeing the letter where Barclays flatly admitted that it would protect its interest as a

47

lender over the interests of the Company.137 Without full disclosure about Barclays' interests in

the transaction and how it impacted its role as financial advisor, the scant disclosures in the Proxy

about the go shop process leave Del Monte's stockholders with the false impression that Barclays

did all it could to solicit alternative bids.

* * * * *

Absent Defendants' disclosure of all material information, Del Monte's shareholders

cannot cast an infonned vote with respect to the Proposed Transaction. Accordingly, a vote on

the Proposed Transaction should be enjoined until full and complete disclosure of all material

infOlmation is made to the shareholders. See In re Topps, 926 A.2d at 64 (holding that "[w]hen

directors of a Delaware corporation seek approval for a merger, they have a duty to provide the

stockholders with the material facts relevant to making an infOlmed decision.").

II. PLAINTIFF HAS DEMONSTRATED A DANGER OF IMMINENT,IRREPARABLE HARM IN THE ABSENCE OF THE REQUESTEDPRELIMINARY INJUNCTION

In the absence of an injunction, Plaintiff and all Del Monte shareholders face imminent,

irreparable harm for two reasons. First, if the obligations imposed by Revlon are to have any

vitality, it is imperative that injunctive relief be available to remedy failings by a corporate board

in an auction process. See Police & Fire Ret. Sys. of City of Detroit v. Bernal, 2009 WI.

1873144, **2-3 (Del. Ch. June 26, 2009) (harm flowing from deal protection devices that are

alleged to have had an adverse impact by deterring potential bidders is "incalculable";

"shareholders only realistic remedy for certain breaches of fiduciary duty in connection with a

sale of control transaction may be injunctive relief').

Second, where - as here - shareholders are being forced to vote on a proposed transaction

pursuant to a proxy that fails to disclose all of the information that a reasonable shareholder

137 Martin Tr. at 65-66, 68-69.

48

would consider important in deciding how to vote, this Court has found irreparable harm on

numerous occasions. See, e.g., In re Transkaryotic Therapies, Inc., 954 A.2d 346, 360-61 (Del.

Ch. 2008) ("[T]his COUli has explicitly held that a breach of the disclosure duty leads to

irreparable harm.") (emphasis in original); ODS Techs., L.P. v. Marshall, 832 A.2d 1254, 1262

(Del. Ch. 2003) ("The threat of an uniformed shareholder vote constitutes irreparable harm.");

Netsmart, 924 A.2d at 208 ("[T]his court has not hesitated to use its injunctive powers to address

disclosure deficiencies. When stockholders are about to make a decision based on materially

misleading or incomplete information, a decision not to issue an injunction maximizes the

potential that the crudest of judicial tools (an appraisal or damages award) will be employed

down the line, because the stockholders' chance to engage in self-help on the front end would

have been vitiated and lost forever.").

III. THE BALANCE OF EQUITIES FAVORS ISSUANCEOF A PRELIMINARY INJUNCTION

Finally, the balance ofequities favors issuance of a preliminary injunction to halt the vote

on the Proposed Transaction until the Board has complied with its fiduciary duties. The harm

that Plaintiff and other Del Monte shareholders will suffer if an injunction is not granted is the

irreparable loss of their fundamental right to make a fully-informed vote on a transaction that was

negotiated free of the taint of conflict of interest.

This Court has recognized that injunctive relief is the preferable remedy in actions

challenging the terms of a merger where, as here, shareholders are being asked to vote pursuant to

a false and misleading proxy statement. See, e.g., In re Staples, Inc. S'holders Litig., 792 A.2d

934,960 (Del. Ch. 2001) ("[O]ur cases recognize that it is appropriate for the court to address

material disclosure problems through the issuance of a preliminary injunction that persists until

the problems are corrected. An injunctive remedy of that nature specifically vindicates the

stockholder right at issue - the right to receive fair disclosure of the material facts necessary to

49

cast a fully infonned vote - in a manner that later monetary damages cannot and is therefore the

preferred remedy, where practicable."). That Chancery Court precedent dramatically reduces the

possibility of Plaintiff receiving meaningful relief after the consummation of the Proposed

Transaction renders the hardship Plaintiff will suffer in the absence of an injunction all the morc

palpable. See, e.g., Transkaryotic Therapies, 954 A.2d at 361 (noting that "when shareholders

have voted without complete and accurate information[,] it is, by definition, too late to remedy

the harm").

Defendants, in contrast, will suffer no hardship other than delaying a vote on the

Proposed Transaction if Plaintiff's request for injunctive relief is granted - a harm that this Court

acknowledges is de minimis. State of Wise. Inv. Bd. v. Bartlett, 2000 WL 193115, at *3 (Del. Ch.

Feb. 9, 2000) (hardship caused by delaying vote on a merger transaction is "de minimis when

compared to concern over the possibility that shareholders may have voted on the extinction of

their corporation with less than all the material infonnation"). Here, the Merger Agreement with

the Sponsors remains in full force and effect until at least May 22, 20 II, when, pursuant to

Section 8.2, either party may terminate the agreement if the merger is not consummated.

Although Defendants have stated their intention to try to close the transaction by March, there is

sufficient time for the Court to preliminarily enjoin any shareholder vote on the Proposed

Transaction and require the Del Monte Board to address the serious deficiencies identified above.

No harm would befall the parties if the Court grants Plaintiff's request for a temporary delay of

the shareholder vote here.

CONCLUSION

For the foregoing reasons, Plaintiff's motion for a preliminary injunction should be

granted.

50

Dated: February 2, 2011

OfCounsel:

GRANT & EISENHOFER P.A.

Hung G. TaBrenda F. SzydloMichele S. Carino485 Lexington AvenueNew York, NY 10017Telephone: 646/722-8500646/722-850 I (fax)

ROBBINS GELLER RUDMAN & DOWD LLPRaudall J. BaronA. Rick Atwood, Jr.David T. WissbroeckerEdward M. GergosianDavid A. Knotts655 West Broadway, Suite 1900San Diego, CA 92101Telephone: 619/231-1058619/231-7423 (fax)

Plaintiff's Co-Lead Counsel

CAVANAGH & O'HARAPatrick J. O'Hara407 East Adams StreetSpringfield, IL 6270]Telephone: 217/544-1771217/544-9894 (fax)

Additional Plaintiffs Counsel

51

Respectfully submitted,

/s/ Stuart M. GrantGRANT & EISENHOFER P.A.Stuart M. Grant (Del. Bar No. 2526)Michael J. Barry (Del. Bar No. 4368)Diane Zilka (Del. Bar No. 4344)Christine M. Mackintosh (Del. Bar No. 5085)1201 NOlih Market Street, Suite 2100Wilmington, DE 1980]-2599Telephone: 302/622-7000302/622-7100 (fax)

Plaintiff's Co-Lead Counsei

RLF1 3754206v. 1

CERTIFICATE OF SERVICE

I hereby certify that on February 7, 2011, a true and correct copy of the foregoing was

caused to be served on the following by e-filing:

Stuart M. Grant (# 2526)

Michael J. Barry (# 4368)

Diane T. Zilka (# 4344)

Grant & Eisenhofer P.A.

1201 North Market Street

Wilmington, Delaware 19801

Blake A. Bennett (#5133)

Cooch & Taylor, P.A.

The Brandywine Building

1000 West Street, 10th Floor

Wilmington, Delaware 19801

Carmella P. Keener (# 2810)

Bradford P. deLeeuw (# 3569)

Rosenthal, Monhait & Goddess, P.A.

919 North Market Street

Post Office Box 1070

Wilmington, Delaware 19899

Brian D. Long (# 4347)

Rigrodsky & Long, P.A.

919 North Market Street, Suite 980

Wilmington, Delaware 19801

Kenneth J. Nachbar (# 2067)

John P. DiTomo (# 4850)

Morris, Nichols, Arsht & Tunnell LLP

1201 North Market Street, 18th Floor

Post Office Box 1347

Wilmington, Delaware 19899-1347

/s/ Rudolf Koch

Rudolf Koch (#4947)