IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN RE DEL MONTE FOODS COMPANY Consolidated C.A. No. 6027-VCL SHAREHOLDER LITIGATION REDACTED VERSION FILED FEB. 7, 2011 BRIEF IN SUPPORT OF PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION GRANT & EISENHOFER P.A. OfCounsel: Stuart M. Grant (Del. Bar No. 2526) Michael J. Barry (Del. Bar No. 4368) GRANT & EISENHOFER P.A. Diane Zilka (Del. Bar No. 4344) Hung G. Ta Christine M. Mackintosh (Del. Bar No. 5085) Brenda F. Szydlo 1201 North Market Street, Suite 2100 Michele S. Carino Wilmington, DE 19801-2599 485 Lexington Avenue Telephone: 302/622-7000 New York, NY 10017 302/622-71 00 (fax) Telephone: 646/722-8500 6461722-8501 (fax) Plaintiff's Co-Lead Counsel ROBBINS GELLER RUDMAN & DOWD LLP Randall J. Baron A. Rick Atwood, Jr. David T. Wissbroecker Edward M. Gergosian David A. Knotts 655 West Broadway, Suite 1900 San Diego, CA 9210I Telephone: 619/23 I-1058 619/231-7423 (fax) Plaintiff's Co-Lead Counsel CAVANAGH & O'HARA Patrick J. O'Hara 407 East Adams Street Springfield,lL 62701 Telephone: 2I7/544-1771 217/544-9894 (fax) Additional Plaintiffs 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 The Interest OfPrivate Equity Buyers 10 ACT 11- THE PLOT THICKENS 11 In September 2010, Without Del Monte's Authority Or Knowledge, Barclays Secretly Forges A Deal Between KKRlCenterview And Vestar, Two Previously Rival Bidders, Clearing A Path For A Deal To Acquire The Company And Eliminating Any Competition I 1 ACT III - A CAREFULLY CHOREOGRAPHED CHASE SCENE 16 The Board Receives A Bid From KKR/Centerview But Refuses To Open Bidding To Other Parties "'"'''' 16 The Board Permits KKR/Centerview To Eliminate Any Potential Competitive Bids 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 The Merger Agreement 20 Following An Illusory Go Shop, The Company Issues Its Proxy For The Proposed Transaction 22 EPILOGUE 24 The Board's Financial Advisor Labored Throughout The Flawed Sales Process Under Incurable Conflicts OfInterest 24 ARGUMENT 28 I. PLAINTIFF HAS DEMONSTRATED A REASONABLE PROBABILITY OF SUCCESS ON THE MERITS 28 A. The Entire Sale Process Was Fatally Flawed By The Del Monte Board's Lack Of Oversight OfBarclays 29 B. The Specific Decisions OfThe Del Monte Board Were Not Reasonably Designed To Maximize Shareholder Value 33 1. The Board's Decision To Focus Only On Private Equity Firms Was Not Reasonably Calculated To Lead To Maximum Value For Shareholders 33 2. The Board's Decision To Reopen Bidding With KKR Alone Was Not Reasonably Calculated To Lead To Maximum Value 34 3. The Board's Decision To Allow Vestar To Join The KKR/Centerview Group Was Not Reasonably Calculated To Maximize Shareholder Value..........35 4. The Board's Decision To Permit Barclays To Provide Buy-Side Financing Was Contrary To Its Obligation To Maximize Shareholder Value 37 5. The Del Monte Board's Appointment OfBarclays To Conduct The "Go Shop" Rendered The Process Wholly Illusory And Was Not Reasonably Designed 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 ofBarclays' Conflicted Role As Financial Advisor .41 2. The Proxy Omits Material Information Regarding The Fairness Opinions ofBarclays and Perella 44 3. The Proxy Provides A Misleading Account OfThe Sales Process .46 4. The Proxy Fails To Disclose the Illusory Nature ofThe Go Shop Process .........47 II. PLAINTIFF HAS DEMONSTRATED A DAN GER OF IMMINENT, IRREPARABLE HARM IN THE ABSENCE OF THE REQUESTED PRELIMINARY INJUNCTION .48 III. THE BALANCE OF EQUITIES FAVORS ISSUANCE OF A PRELIMINARY INJUNCTION 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 TWSvcs., Inc. v. SWTAcquis 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 ofthe 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 ofBarclays 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 ifthe 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 an appearance in his own production, opting instead to send understudies to be Barclays witnesses at deposition. 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.