Certain portions of this agreement, for which confidential treatment has been requested, have been omitted and filed separately with the Securities and Exchange Commission. Sections of the agreement where portions have been omitted have been identified in the text.
Exhibit 10.19
Certain portions of this agreement, for which confidential treatment has been requested,
have been omitted and filed separately with the Securities and Exchange Commission.
Sections of the agreement where portions have been omitted have been identified in the text.
5th AMENDMENT
RESTATED DEL MONTE FOODS
RETAIL BROKERAGE AGREEMENT
This Fifth Amendment (“5th Amendment”) dated February 10, 2011 shall amend the Restated Del Monte Foods Retail Brokerage Agreement dated November 22, 2008 and subsequently amended on May 4, 2009, September 22, 2009, January 26, 2010, May 1, 2010, and August 11, 2010 (the “Agreement”), by and between Del Monte Corporation, a corporation with its main business office at One Market @ the Landmark, San Francisco, California 94105 (the “Client”) and Advantage Sales & Marketing LLC, a limited liability company with its main business office at 18100 Von Karman Avenue, Suite 900, Irvine, CA 92612 (“Broker”).
WHEREAS, the parties desire to amend the Agreement to revise Attachments B-1C and B-2C per edits attached.
NOW, THEREFORE, in acknowledgement of good and valuable consideration, the sufficiency of which is acknowledged, the parties agree to add to the Agreement as follows:
| 1. | Attachment B-1D: The parties agree to replace the current “Attachment B-1C” in its entirety with a new “Attachment B-1D” as contained herein, effective January 1, 2011. |
| 2. | Attachment B-2D: The parties agree to replace the current “Attachment B-2C” in its entirety with a new “Attachment B-2D” as contained herein, effective January 1, 2011. |
| 3. | No Other Change: Except as modified by the 5th Amendment, the Agreement will remain in full force and effect as set forth herein. |
IN WITNESS WHEREOF, the parties hereto have caused this 5th Amendment to be executed by their duly authorized representatives as of the date first above written.
| ADVANTAGE SALES & MARKETING LLC | DEL MONTE CORPORATION | |||||||
| By: | /s/ Tanya Domier | By: | /s/ Tim Cole | |||||
| Name: | Tanya Domier | Name: | Tim Cole | |||||
| Title: | President & COO | Title: | Executive Vice President | |||||
| Date: | February 9, 2011 | Date: | February 10, 2011 | |||||
ATTACHMENT B-1D
DEL MONTE CORPORATION
RETAIL GROCERY BROKERAGE AGREEMENT
Applicable Brokerage Rates/Classes of Trade/Other Compensation
Brokerage Commissions shall be computed where applicable on the billed sales to the customers and classes of trade set forth below. Effective as of the Effective Date and subject to the exclusions set forth herein, Brokerage Commissions shall be paid at the commission rates set forth below applied to Client’s adjusted base delivered price (see provision 2 of Agreement). Commission rates and/or other payments for services under this Agreement may be amended upon mutual agreement by the parties in writing.
| A. | Del Monte Brands, Del Monte Pet Products (Retail), College Inn Broth, Produce (except as indicated on Schedule B-2) | Applicable Base Brokerage Rate | ||||
| I. | Retail Grocery Customers | |||||
| (Except Wal*Mart Super Center Retail – see below) | ||||||
| • Non-Produce | [***]* | |||||
| • Produce (Excluding Hawaii) | [***]* | |||||
| II. | Drug Stores (except as specifically indicated) (Excluding Long’s Drug) | [***]* | ||||
| III. | Dollar Stores (except as specifically indicated) | |||||
| (Including Dollar Tree and Bargain Wholesale effective 8/25/08) | [***]* | |||||
| IV. | Convenience Stores (as specifically agreed) | [***]* | ||||
| V. | Administrative Support Customers (CVS Including Long’s Drug, | |||||
| Walgreens, Rite Aid, Lowe’s & Beyer Farms) | [***]* | |||||
| VI. | All Channels: Hawaii (Including Long’s Drug) | [***]* | ||||
| • Including Produce | ||||||
| VII. | Minor Mass | [***]* | ||||
| VIII. | Specialty Distributors | [***]* | ||||
Bonuses, if applicable, shall be paid at rates mutually agreed upon by the parties.
B. Dedicated Retail Team. In addition to the brokerage rates set forth above, Broker shall be paid a lump sum payment of $[***]* monthly ($[***]* annually) for Dedicated Retail Team (DRT) services in the grocery channel. Services provided by the DRT shall consist of customary dedicated retail services including the following:
Retail Distribution Management
New Product Distribution
Modular Integrity Oversight
* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
Retail Audits
Retail Call Reporting (Date and Location of Retail Calls)
The DRT shall perform services for all Client customers in the grocery channel (including the national retailers directly serviced by Client (identified on Attachment C hereto) and those retail grocery accounts managed by Louis F. Leeper Company), as defined in the agreed deployment model. Note: ASM’s “syndicated” retail services may be used periodically at a rate of $[***]* capped at Del Monte’s discretion.
C. In-Store Execution/Reset Activity. Client shall pay to Broker a monthly payment for all grocery channel in-store execution and reset activity based on (i) actual labor support supplied during a month (at Broker’s published retail service rates), and (ii) to the extent applicable, Client’s pro-rata share of customer charges for in-store execution/reset activity. Broker in-store execution/reset activity shall be performed in accordance with plans and budgets approved in advance by Client. Broker shall submit a detailed invoice for in-store execution/reset activity to Client by the fifteenth day of the month following the month in which such services were performed. All charges set forth in such invoice shall be substantiated by reasonable supporting documentation or records. Payment for In-Store Execution/Reset Activity shall be capped at $[***]* per Client fiscal year. Fixed budgets to include Grocery Produce and Surge fees.
D. Other Services. Broker shall perform such other services as specified by Client at rates and subject to terms mutually agreed to by Client and Broker.
| E. Wal*Mart Super Center and Division I Retail Coverage | ||||||||
| 1. | Retail Calls | |||||||
| (Covering Del Monte Brands, Pet Products, | ||||||||
| - Frequency TBD by Del Monte | $[***]* | |||||||
| Estimated length of average call at WMSC | [***]*. | |||||||
| Estimated length of average call at Division I | [***]*. | |||||||
| Estimated length of average call at Neighborhood Markets | [***]*. | |||||||
| 2. | Store Set Up | |||||||
| A. | - New Store | $[***]* | ||||||
| B. | - Existing Stores | $[***]* | ||||||
F. Development Projects
As directed by Client and agreed to by Broker, to be paid on a per-project basis.
G. Back Office Support Services
As mutually agreed by the parties.
H. Exclusions:
Institutional (except for food service items ordered by covered retail customers, as agreed by Client)
Government and Military
Club
Private Label
Vending
Food Ingredients
Export
As set forth herein
* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
ATTACHMENT B-2D
Exclusions
DEL MONTE CORPORATION
RETAIL GROCERY BROKERAGE AGREEMENT
Broker shall not receive brokerage commissions on sales of Client’s products to the following customers unless they are specifically designated on Attachment C:
| Direct Mass Merchandising | ||
| Wal*Mart | Sam’s | |
| Wal*Mart Super Center | Warehouse Club | |
| (See WMSC Retail, Attach. B-1) | Costco | |
| Wal*Mart Neighborhood Markets | Wholesale Depot | |
| BJ’s | ||
| Max Club | ||
| Price Mart | ||
| National Retailers | Leeper Customers | |
| Kroger (Coordinated and West) | Those customers in the Pittsburgh/Cleveland | |
| Safeway | territory serviced by Louis F. Leeper Co. | |
| Publix | and its affiliates | |
| Delhaize | ||
| Meijer | ||
| HEB | ||
| K-Mart | ||
| Provided, however, that Broker shall be compensated as mutually agreed by the parties for back office support services provided to Client. | ||
| Dollar Stores | ||
| Family Dollar | ||
| Big Lots | ||
| Grocery Outlet | ||
| Bargain Wholesale | ||
| Pet Specialty | ||
| PetCo | ||
| PetSmart | ||
| Pet Supplies Plus | ||
| Pet Supermarkets | ||
| Pet Specialty distributors | ||
| Produce | ||
| No commission payable with respect to those markets identified on Schedule B-2 | ||
ATTACHMENT B-2D
EXCLUDED PRODUCE MARKETS
Oklahoma
Kansas City
Chicago
Milwaukee
Minneapolis
Nash Finch
Newell
Buffalo
Cleveland
Pittsburgh
Syracuse
Salt Lake City
Phoenix
Safeway
San Francisco
San Francisco All Other
Brokerage Split Policy:
Applicable Split: (Paid as part of DRT monthly lump-sum)
Retail Only
Portland Market
Customer Code: 160745 – Fred Meyer Inc, Portland
Customer Code: 165958 – Kroger Clackamas, Nashville
Customer Code: 160749 – United Grocers, Portland
Customer Code: 160329 – Winco Foods, Boise
Safeway Market
Customer Code: 160251 – Randall’s/Tom Thumb, Phoenix
Customer Code: 165636 – C&S WHLSE Groc Co (Prod), Brattelboro
Customer Code: 160450 – Safeway Stores Inc, Oakland
Customer Code: 160266 – Safeway Stores Inc, Denver
Customer Code: 160270 – Safeway Inc, Bellevue
Customer Code: 160324 – Safeway – Phoenix Div, Pheonix
Seattle Market
Customer Code: 163731 – Associated Grocer’s Inc, Seattle
Customer Code: 160033 – Unified Grocers, Seattle
Customer Code: 160688 – Charlie’s Produce, Seattle
Customer Code: 160689 – Charlie’s Produce, Seattle
Customer Code: 160270 – Safeway Inc, Bellevue
Spokane Market
Customer Code: 160690 – Peirone’s Produce Co, Spokane
Customer Code: 160620 – Spokane Produce Inc, Spokane
ATTACHMENT B-2D
Boise Market
Customer Code: 160018 – Albertson’s Salt Lake City
Customer Code: 160020 – Albertson’s Portland #8252
