RESTATED DEL MONTE FOODS RETAIL BROKERAGE AGREEMENT

Exhibit 10.1

RESTATED
DEL MONTE FOODS RETAIL BROKERAGE AGREEMENT

          THIS AGREEMENT, effective as of the last date following the signatures set forth below (the “Effective Date”) between DEL MONTE CORPORATION , a corporation with its main business office at One Market @ The Landmark, San Francisco, California 94105, hereinafter called “Client,” and ADVANTAGE SALES AND MARKETING LLC , a limited liability company with its main business office at 19100 Von Karman Avenue, Suite 600, Irvine, California 92612, hereinafter called “Broker.”

          WHEREAS, Client distributes food and beverage products for human and animal consumption under various brands including but not limited to DEL MONTE, S&W, CONTADINA, STARKIST, EATWELL, 9 LIVES, KIBBLES ‘N BITS, COLLEGE INN, MEOW MIX, ALLEY CAT and MILK-BONE;

          WHEREAS, Client desires that Broker act as a broker in connection with the servicing, promotion, and sale of those food and beverage products listed on Attachment A (“Products”), which attachment Client may modify , with written notice to Broker, from time to time, and Broker desires to so act;

          NOW, THEREFORE, Client, in consideration of certain agreements hereinafter set forth and to be performed by Broker, hereby appoints Broker to act as broker in connection with the servicing, promotion, and sale of the Products at the applicable brokerage rates and to the classes of trade listed on Attachment B-1 and Attachment B-2 (“Accounts”) for direct buying accounts located within Broker’s assigned territory listed on Attachment C (“Territory”) , and Broker, in consideration of the commissions specified herein, agrees to so act.

          The parties mutually agree as follows:

     1. All Sales Subject to Client’s Terms and Conditions . All Products represented by Broker shall be sold subject to Client’s prices, terms, conditions, and confirmation by Client at its main office, and in amounts and assortments authorized by, and to customers approved by Client. Broker shall so advise the trade in receiving orders. Broker shall not solicit nor accept orders from buyers located outside Broker’s assigned territory or assigned area of responsibility and no commissions will be paid on any such orders whether confirmed or not. Broker agrees to assist Client in the collection of all due invoices. All remittances due to Client shall be made by customers directly to Client, unless otherwise instructed by Client. Broker understands that a customer’s order shall be subject to credit approval by Client and that Client shall be the sole judge of a customer’s credit-worthiness. If for any reason a customer does not accept delivery or if Client does not effect delivery to a customer because in Client’s judgment customer’s credit standing is impaired, Client shall be entitled to sell or otherwise dispose of Products and in such event Broker shall be entitled to no commission thereon. All orders shall be booked and transmitted in the name of the actual customer.

     2. Commission; Full Compensation . For Products sold by Broker to direct accounts located within Broker’s territory and confirmed by the main office of Client, and subject to the terms and conditions set forth in this Agreement, Broker shall be entitled to commissions computed as indicated on Attachment B . Such commissions shall be based on [**] ^* . Client shall not be liable for any costs or expenses of Broker in connection with any services performed hereunder or the operation or maintenance of Broker’s places of business. The commissions specified herein shall constitute full compensation to Broker for all services hereunder.

     3. Promotional Programs and Trade Spending . Broker shall accurately and completely convey to customers Client’s terms and conditions of sale and all terms and conditions of promotional programs in which the customer is eligible to participate. Broker shall accurately and completely convey terms and conditions of any promotional program. Broker shall use best efforts to ensure that trade spending by Broker’s customers does not exceed amounts established by the Client. In the event that trade spending by Broker’s customers exceeds such amounts per SBU on a per market basis (“Overspends”) and such Overspends are the direct result of the gross negligence or willful misconduct of Broker’s or Broker’s employees, Client shall have the right to set-off the amount of such Overspends against commissions earned and to be earned by the Broker. Broker shall be responsible for managing customer deductions and program performance (including Overspends and

unauthorized performance) but shall have no financial obligation to Client for such Overspends and/or unauthorized performance other than if such event is a direct result of the gross negligence or willful misconduct of Broker or Broker’s employees. Broker’s commissions shall be adjusted only as provided for herein and in accordance with Client’s Deduction Management Policy set forth on Attachment D , as such policy may be modified, with written notice to Broker, from time to time .

     4. Compliance with Law . Broker agrees to act in accordance with applicable federal, state and local laws. Broker agrees not to pay or transfer any part of commissions received from Client to anyone other than employees of Broker other than as required by law. Broker warrants and represents that no customer or account or representative thereof, or governmental employee, has any ownership or financial interest, direct or indirect, in Broker. Broker agrees to indemnify Client for expenses and losses incurred by Client and caused by Broker’s gross negligence or actions in violation of the terms of this Agreement, or in violation of any laws, regulations, or policies of Client, or without written authorization of Client. Client agrees to indemnify and hold harmless Broker from and against any and all claims, demands, actions, proceedings and costs (including reasonable attorneys’ fees), in any way resulting from the gross negligence of Client, its employees, or agents in the performance of this Agreement, and any loss or injury resulting from and/or arising out of products, point of sale materials and/or other product related materials and/or goods, supplied in connection with this Agreement, including but not limited to, any defect in merchandise, or the purpose or use of any product manufactured, produced or distributed by Client, except to the extent of Broker’s responsibility set forth in the preceding sentence.

     5. Fair and Equitable . Client’s policy is to treat all competitive customers on a fair, equal, and proportionate basis. Broker agrees to follow such policy in representing the Products under this Agreement.

     6. Ownership of Records . Files and records maintained by Broker and directly relating to transactions between Client and Client’s customers are the property of Client and shall be delivered to Client promptly following the written request by Client for such records. Broker acknowledges that failure to promptly release records to Client may cause irreparable harm to Client, and that Client shall be entitled to immediate injunctive relief to obtain such records in addition to other remedies available at law. During the term of this Agreement Broker shall maintain custody of such Client records in accordance with Broker’s internal policies, however such records shall not be kept for a period shorter than as required by applicable laws, rules and regulations; and shall permit Client or its agent(s), upon reasonable notice, to inspect and copy such records at Client’s sole expense at a mutually agreed upon time. Broker may make copies of such records for its internal use.

     8. Confidential Information . Broker and Client each acknowledges that from time to time each party to this Agreement will have access to certain confidential and proprietary information and systems of the other party (the “Disclosing Party”) which is generally not available to or known by the public, in which the Disclosing Party has a legitimate protectable interest and which has particular value to the Disclosing Party, the disclosure of which could be harmful to the Disclosing Party’s interests (the “Confidential Information”). During the term of this Agreement and for a period of five (5) years thereafter, Broker and Client each agree that it shall not directly or indirectly disclose such Confidential Information to any third party except as required by law or regulation or use any Confidential Information for any purposes not expressly authorized in writing by the Disclosing Party. Confidential Information means any and all information, whether disclosed in writing or orally, identified as confidential by the Disclosing Party. For purposes of this Agreement, Client information relating to Client business strategies, deal rates, promotional rates, marketing plans, new item introductions and business development opportunities shall be considered Confidential Information. Confidential Information may also include, but is not limited to: business models and plans, proprietary computer software and sales planning and execution processes, information and/or knowledge regarding products, processes, techniques, trade secrets, strategies and programs, financial data, vendor and customer relationships, methods of operation and other information or materials in any form proprietary to a party. For purposes of this Agreement, Confidential Information shall not include the following:

     9. Non-Solicitation . During the term of this Agreement and for a period of six (6) months following its termination, the parties agree not to, without the prior approval of the other party (which approval shall be provided in writing or e-mail), solicit or induce any employee of the other, either directly or indirectly, to leave such employment and/or become an employee of the other or any company affiliated with or related to such party. Notwithstanding the foregoing, a general solicitation, such as through a newspaper, website or trade journal, and any hiring related thereto, shall not be prohibited by this section.

     10. No Diversion . Broker agrees not to divert Products to markets outside the United States, and agrees not to divert Products between markets within its assigned United States territory.

     11. Insurance . Broker agrees to purchase and maintain throughout the term of this Agreement and for [**] ^* following expiration or earlier termination of this Agreement, general liability and employee theft (crime) insurance naming Client as an additional insured as respects its handling of the Client’s account with minimum liability limits of [**] ^* per occurrence. Client shall, at its own expense, obtain and maintain throughout the term of this Agreement and for two (2) years following expiration or earlier termination of this Agreement, Commercial general liability insurance on an occurrence coverage form, including but not limited to coverage for product liability and personal & advertising injury providing protection in the amount of at least five million dollars ($5,000,000.00) per occurrence and annual aggregate against any claims, suits, losses or damages arising as a result of this Agreement.. Each of Broker and Client shall have the other named as an additional insured under one another’s liability insurance policy and shall provide the other with a certificate of insurance evidencing such coverage. Such certificate of insurance shall provide that such insurance is not subject to cancellation without at least thirty (30) days’ prior written notice to the other party.

     12. Software . Any software provided by Client (“Software”) is provided pursuant to a license which shall terminate upon the termination of this Agreement. Usage of such Software shall be subject to the following conditions: (a) it is licensed for installation on a single computer only, (b) it may not be copied except for reasonable backup and archival purposes only, (c) it may not be sold, rented, leased, or transferred to any other party except in connection with a permitted assignment pursuant to Section 17 hereof, (d) use shall be limited to Client’s business only and it may not be used for any other purpose, and (e) it may not be reverse-engineered, decompiled, disassembled or modified. Broker shall not create any derivatives of Software and shall not remove any product identification, copyright notices or other indicia or ownership. Upon the termination of this Agreement, Broker shall remove all Software from the computer on which it resides and return to Client or destroy any media or materials holding, describing or otherwise related to such Software.