EXHIBIT 99.7
BEAR, XXXXXXX & CO. INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel (000) 000-0000
xxx.xxxxxxxxxxx.xxx
September 8, 2006
Trian Fund Management, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Garden
Portfolio Manager
Xxxxxxx Asset Management Corp.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Chief Executive Officer
Ladies and Gentlemen:
This letter agreement (together with Annex A and the Indemnification Provisions
attached hereto, this "Agreement") confirms the agreement among Trian Fund
Management, L.P. ("Trian"), Xxxxxxx Asset Management Corp. ("Sandell", and
together with Trian, the "Trian Group") and Bear, Xxxxxxx & Co. Inc. ("Bear
Xxxxxxx") as follows:
1. The Trian Group hereby engages Bear Xxxxxxx to act as the Trian Group's
financial advisor in connection with assisting the Trian Group in preparing
for certain actions the Trian Group may take in seeking to have its
designated director nominees (as identified below, the "Trian Group
Director Nominees") elected to the Board of Directors of X. X. Xxxxx
Company ("Heinz"), or any other related matters as to which you and we
agree to in writing during the course of our engagement (collectively, the
"Assignment"). Heinz shareholders are being solicited to vote for a slate
of candidates that will include the Trian Group Director Nominees at the
Heinz 2006 annual meeting of shareholders currently scheduled to be held on
August 16, 2006.
For purposes herein, the term "Trian Group Director Nominees" means Xxxxxx
Xxxxx, Xxxxx X. May, Xxxxxx X. Garden, Xxxxxxx Xxxxxxxxx and Xxxxxxx X.
Xxxxxx, each of whom the Trian Group has nominated for election to the
Heinz Board of Directors pursuant to a Director Nomination Proposal
disclosed by Heinz on March 3, 2006.
2. Bear Xxxxxxx hereby accepts the engagement and, in that connection, to the
extent requested by the Trian Group and relevant to the Assignment, agrees
to provide the Trian Group with financial advice and assistance, which may
include, but shall not be limited to, performing financial analyses,
assisting the Trian Group in analyzing, considering, and evaluating any
actions contemplated by paragraph 1 above that the Trian Group may
Trian Fund Management, X.X.
Xxxxxxx Asset Management Corp.
September 8, 2006
Page 2
take with respect to Heinz, responding to any actions that Heinz make take
with respect thereto and being available to meet with other Heinz
shareholders, Heinz's financial advisors and independent third party proxy
voting advisors.
3. In consideration of our services pursuant to this Agreement, the Trian
Group agrees to pay Bear Xxxxxxx the following compensation:
(a) A fee of $800,000 (the "Retainer"), payable in cash upon execution of
this Agreement.
(b) A fee (the "Success Fee"), payable in cash, of (i) $800,000 upon the
election or appointment of at least two Trian Group Director Nominees
to the Board of Directors of Heinz in connection with the 2006 annual
meeting of the shareholders of Heinz (initially scheduled for August
16, 2006) (the "2006 Annual Meeting"), or (ii) $400,000 upon the
election or appointment of one Trian Group Director Nominee to the
Board of Directors of Heinz in connection with the 2006 Annual
Meeting. The Retainer and the Success Fee will be credited against any
Value Enhancement Fee (as defined below) payable hereunder.
(c) In the event one or more Trian Group Director Nominees is elected or
appointed to or otherwise included on the Board of Directors of Heinz
in connection with the 2006 Annual Meeting, the Trian Group agrees to
pay Bear Xxxxxxx a cash fee (the "Value Enhancement Fee") equal to
3.0% of (i) the sum of (A) the increase in the aggregate value of the
18,595,000 shares of Heinz common stock (the "Initial Heinz Stake")
currently held by investment funds and accounts managed by the Trian
Group, which increase shall be determined by the difference between
$41.50 and the aggregate price for which the Trian Group disposes of
the entire Initial Heinz Stake and (B) if the Trian Group purchases or
discloses the ownership of additional shares of Heinz common stock
between the date hereof and August 16, 2006 (the "Additional Heinz
Stake" and, together with the Initial Heinz Stake, the "Heinz Stake"),
the increase in the aggregate value of the Additional Heinz Stake
based on the difference between the purchase price for the Additional
Heinz Stake and the aggregate price for which the Trian Group disposes
of the entire Additional Heinz Stake, LESS (ii) all costs and expenses
incurred by the Trian Group in connection with its investment in
Heinz, including without limitation all legal fees and expenses, all
fees and expenses relating to the proxy contest and the Retainer and
the Success Fee (but excluding the fees payable to Bear Xxxxxxx
pursuant to this Section 3(c)). For purposes of calculating the Value
Enhancement Fee, appropriate adjustments shall be made for any stock
dividends, stock splits, spin-offs or other extraordinary transactions
that may occur. The Value Enhancement Fee, if any, will be payable
within five business days following the sale by the Trian Group of the
entire Heinz Stake. Notwithstanding the foregoing, at any time within
90 days on or after the date that one or more Trian Group Director
Nominees is elected or appointed to or otherwise included on the Board
of Directors of Heinz in connection with the
Trian Fund Management, X.X.
Xxxxxxx Asset Management Corp.
September 8, 2006
Page 3
2006 Annual Meeting , but in no event later than December 31, 2006,
Trian and/or Xxxxxxx may elect, in its sole discretion, to pay Bear
Xxxxxxx, in lieu of its portion of any Value Enhancement Fee otherwise
payable hereunder, a lump sum payment equal to its Pro Rata ==
Percentage (as defined below) of $4,500,000 (the "Termination Fee"),
such amount to be payable within five business days following the date
that Trian or Xxxxxxx notifies Bear Xxxxxxx of any such election.
(d) The parties acknowledge and agree that Trian and Xxxxxxx will each be
responsible, individually and not severally, for (i) 25% and 75%,
respectively, of the Retainer and the Success Fee, if any, (ii) a
portion of the Value Enhancement Fee, if any, (x) in the case of
Trian, with respect to the 13,213,600 shares of the Initial Heinz
Stake owned by Trian, having an initial price of $41.50 for purposes
of calculating the Value Enhancement Fee, and (y) in the case of
Xxxxxxx, with respect to the 5,381,400 shares of the Initial Heinz
Stake owned by Xxxxxxx, having an initial price of $41.50 for purposes
of calculating the Value Enhancement Fee, and (iii) if applicable, a
portion of the Termination Fee based on their respective pro rata
interests in the Heinz Stake (the "Pro Rata Percentages").
4. The Trian Group will promptly reimburse Bear Xxxxxxx, periodically upon
request and presentation of reasonably satisfactory evidence thereof, for
all reasonable out-of-pocket expenses reasonably incurred by Bear Xxxxxxx
in connection with Bear Xxxxxxx' rendering its services under this
Agreement, including the reasonable fees and disbursements of one firm of
outside legal counsel not to exceed $20,000 (other than in connection with
the Indemnification Provisions referred to below). The parties acknowledge
and agree that Trian and Xxxxxxx will each be responsible, individually and
not severally, for 25% and 75%, respectively, of all such expenses. Bear
Xxxxxxx shall not engage any third party advisors (other than one firm of
outside legal counsel) without the prior written consent of the Trian
Group.
5. Bear Xxxxxxx' engagement hereunder may be terminated at any time by either
Bear Xxxxxxx or the Trian Group upon written notice thereof to the other
party without liability or continuing obligation on the part of the Trian
Group or Bear Xxxxxxx; provided, however, that Bear Xxxxxxx will continue
to be entitled to the full amount of any compensation earned and payable
pursuant to paragraph 3 above through the date of termination unless Bear
Xxxxxxx has terminated the engagement (other than due to a material breach
of this Agreement by the Trian Group) or the Trian Group has terminated the
engagement due to a material breach of this Agreement by Bear Xxxxxxx; and
provided, further, that paragraph 4 above (with respect to expenses
incurred through the date of termination), the Indemnification Provisions
referred to below and Annex A attached hereto shall survive any termination
of this Agreement or Bear Xxxxxxx' engagement hereunder.
6. The provisions set forth in Annex A and the Indemnification Provisions
attached hereto are incorporated herein in their entirety.
Trian Fund Management, X.X.
Xxxxxxx Asset Management Corp.
September 8, 2006
Page 4
7. EACH OF BEAR XXXXXXX, XXXXX AND SANDELL (ON ITS OWN BEHALF AND, TO THE
EXTENT PERMITTED BY LAW, ON BEHALF OF ITS RESPECTIVE EQUITY HOLDERS AND
CREDITORS) HEREBY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT
OF ANY CLAIM BASED UPON, ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING, WITHOUT
LIMITATION, THE ASSIGNMENT).
8. This Agreement and all controversies arising hereunder or relating hereto
will be governed by, and construed and enforced in accordance with, the
laws of the State of New York.
9. For the convenience of the parties hereto, any number of counterparts of
this Agreement may be executed by the parties hereto, each of which shall
be an original instrument and all of which taken together shall constitute
one and the same Agreement. Delivery of a signed counterpart of this
Agreement by facsimile transmission shall constitute valid and sufficient
delivery thereof.
We are delighted to accept this engagement and look forward to working with you
on this important assignment. Please confirm that the foregoing is in accordance
with your understanding by signing in the space provided below and returning to
us a duplicate of this Agreement.
Very truly yours,
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxx
Senior Managing Director
ACCEPTED AND AGREED TO:
Trian Fund Management, L.P.
By: Trian Fund Management GP, LLC, its General Partner
By: /s/ Xxxxxx X. Garden
-----------------------------------------------
Name: Xxxxxx X. Garden
Title: Member
Trian Fund Management, X.X.
Xxxxxxx Asset Management Corp.
September 8, 2006
Page 5
Xxxxxxx Asset Management Corp.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Trian Fund Management, X.X.
Xxxxxxx Asset Management Corp.
September 8, 2006
Page 6
ANNEX A
ADDITIONAL PROVISIONS
Capitalized terms used herein without definition shall have the meanings
ascribed thereto in the letter agreement dated September 8, 2006 (as amended
from time to time, the "Agreement") among Trian Fund Management, L.P., Xxxxxxx
Asset Management Corp. and Bear, Xxxxxxx & Co. Inc.
A. During the period of Bear Xxxxxxx' engagement hereunder, the Trian Group
will furnish or arrange to have furnished to Bear Xxxxxxx all information
concerning the Trian Group and the Assignment that Bear Xxxxxxx reasonably
requests and deems appropriate and will provide Bear Xxxxxxx with
reasonable access to the Trian Group's officers, employees, appraisers,
independent accountants, legal counsel and other agents, consultants and
advisors involved with the Assignment (collectively, its
"Representatives").
B. The Trian Group recognizes and confirms that, in providing our services
pursuant to this Agreement, Bear Xxxxxxx will rely upon and assume the
accuracy and completeness of all financial and other information furnished
by or discussed with the Trian Group and its Representatives, or available
from public sources, and Bear Xxxxxxx does not assume responsibility for
the accuracy or completeness of any such information. It is understood and
agreed that (i) Bear Xxxxxxx will have no obligation to verify such
information or to conduct any independent evaluation or appraisal of the
assets or liabilities of the Trian Group or any other party and (ii) Bear
Xxxxxxx will assume that any financial projections or forecasts (including
cost savings and synergies) that may be furnished by or discussed with the
Trian Group and its respective Representatives have been reasonably
prepared and reflect the estimates and judgments of the Trian Group. Bear
Xxxxxxx recognizes and confirms that the Trian Group does not make any
representation as to, or assume any responsibility for, the accuracy or
completeness of any financial and other information available from public
sources.
C. All advice (written or oral) given by Bear Xxxxxxx in connection with Bear
Xxxxxxx' engagement is intended solely for the benefit and use of the
members of the Trian Group, and, except to the extent required by law,
regulation or legal process, no such advice shall be used for any other
purpose or be reproduced, disseminated, quoted from or referred to at any
time, in any manner or for any purpose, nor shall any public references to
Bear Xxxxxxx be made by the Trian Group, in each case without the prior
written consent of Bear Xxxxxxx, such consent not to be unreasonably
withheld or delayed. Notwithstanding the foregoing, Bear Xxxxxxx
acknowledges and agrees that its engagement hereunder, including certain
terms of this Agreement, will be disclosed in public filings, press
releases and/or other disclosures. Consequently, Bear Xxxxxxx agrees to
promptly respond to any of the Trian Group's requests to refer to Bear
Xxxxxxx in a public filing or similar disclosure or any such requests to
disclose to third parties certain analyses that Bear Xxxxxxx may perform
under this Agreement.
(i)
D. Bear Xxxxxxx and its affiliates constitute a full service securities firm,
engaging in a wide range of activities for their own accounts and the
accounts of customers, including corporate finance, mergers and
acquisitions, merchant banking, equity and fixed income sales, trading and
research, derivatives, foreign exchange, futures, asset management,
custody, clearance and securities lending. In the course of its business,
Bear Xxxxxxx and its affiliates may, directly or indirectly, hold long or
short positions, trade and otherwise conduct such activities in or with
respect to debt or equity securities and/or bank debt of, and/or derivative
products relating to, Heinz and other issuers. In addition, at any given
time Bear Xxxxxxx and/or any of its affiliates may have been and/or be
engaged by one or more entities that may be competitors with, or otherwise
adverse to, the Trian Group in matters unrelated to the Assignment.
Consistent with applicable legal and regulatory requirements, Bear Xxxxxxx
has adopted policies and procedures to establish and maintain the
independence of Bear Xxxxxxx' research departments and personnel. As a
result, Bear Xxxxxxx' research analysts may hold views, make statements or
investment recommendations and/or publish research reports with respect to
the Trian Group, Heinz, the Assignment and other entities that differ from
the views of Bear Xxxxxxx' investment banking personnel.
E. Bear Xxxxxxx may, at its expense and with the prior written approval of the
Trian Group, include the Trian Group's name and logo and a description of
Bear Xxxxxxx' role in connection with the Assignment in such newspapers,
periodicals, annual reports and other public marketing materials as it may
choose.
F. To help the United States government fight the funding of terrorism and
money laundering activities, the federal law of the United States requires
all financial institutions to obtain, verify and record information that
identifies each person with whom they do business as a condition to doing
such business. Accordingly, each Trian and Xxxxxxx will provide Bear
Xxxxxxx, upon request, certain identifying information, including a
government-issued identification number, (e.g., a U.S. taxpayer
identification number) and certain other information or documents necessary
to verify their identity, such as a certified charter or certificate of
incorporation, a government-issued business license, a partnership
agreement or a trust instrument.
G. Trian represents, to the best of its knowledge, that none of (i) Trian,
(ii) any person controlling or controlled by Trian, (iii) any person having
a beneficial ownership interest in Trian and (iv) any person for whom Trian
acts as an agent or nominee is (x) a country, territory, individual or
entity named on the U.S. Treasury Department's Office of Foreign Assets
Control ("OFAC") list, (y) a person or entity prohibited under the programs
administered by OFAC ("OFAC Programs"), or (z) a country, territory,
individual or entity named on another international sanctions list. Trian
further represents that, to the best of its knowledge, none of the proceeds
of any transaction executed by it in connection with thisthe Assignment
shall be derived from or used for any purpose prohibited under the OFAC
Programs or other international sanctions programs.
X. Xxxxxxx represents, to the best of its knowledge, that none of (i) Xxxxxxx,
(ii) any person controlling or controlled by Xxxxxxx, (iii) any person
having a beneficial ownership
(ii)
interest in Xxxxxxx and (iv) any person for whom Xxxxxxx acts as an agent
or nominee is (x) a country, territory, individual or entity named on the
OFAC list, (y) a person or entity prohibited under the OFAC Programs, or
(z) a country, territory, individual or entity named on another
international sanctions list. Xxxxxxx further represents that, to the best
of its knowledge, none of the proceeds of any transaction executed by it in
connection with the Assignment shall be derived from or used for any
purpose prohibited under the OFAC Programs or other international sanctions
programs.
I. Bear Xxxxxxx agrees to keep confidential and not disclose to any third
party all confidential information provided to it by or on behalf of the
Trian Group with respect to the Trian Group, Heinz and any matter relating
to the Assignment and not to use any such information other than in
connection with the Assignment; provided, however, that Bear Xxxxxxx may
disclose such information (i) to any of its employees, affiliates and
advisors that need to know such information solely in order to assist Bear
Xxxxxxx with performing its obligations hereunder, which persons shall be
informed of the confidential nature of such information and the
restrictions on its use and agree to abide by such confidentiality and use
restrictions, and (ii) to the extent required by law, regulation or legal
process. Bear Xxxxxxx shall be responsible for any breach of the foregoing
provisions by its employees, affiliates and advisors. Notwithstanding any
agreement or representation, written or oral, by either the Trian Group or
Bear Xxxxxxx in connection with the Assignment, the Trian Group and its
Representatives shall have no obligation to Bear Xxxxxxx to maintain the
confidentiality of the tax treatment and tax structure of any transaction
executed by the Trian Group in connection with the Assignment, or any
materials of any kind (including opinions or other analyses) that are
provided to the Trian Group relating to such tax treatment and tax
structure. As required by U.S. Treasury Regulations, we hereby inform you
that (i) any discussion of federal tax issues contained or referred to in
any materials prepared by Bear Xxxxxxx in connection with our engagement
hereunder is not intended or written to be used, and cannot be used, for
the purpose of avoiding penalties that may be imposed under the Internal
Revenue Code and (ii) such discussion is written to support the promotion
or marketing of the matters addressed therein. Bear Xxxxxxx does not
provide tax, legal or accounting advice. The Trian Group will consult its
own tax, legal and accounting advisors in connection with the Assignment.
J. Each party irrevocably (a) submits to the jurisdiction of any court of the
State of New York located in the Borough of Manhattan and the United States
District Court for the Southern District of the State of New York for the
purpose of any suit, action, or other proceeding arising out of this
Agreement, or any of the agreements or transactions contemplated hereby
(each, a "Proceeding"), (b) agrees that all claims in respect of any
Proceeding may be heard and determined in any such court, (c) waives, to
the fullest extent permitted by law, any immunity from jurisdiction of any
such court or from any legal process therein, (d) agrees not to commence
any Proceeding other than in such courts and (e) waives, to the fullest
extent permitted by law, any claim that such Proceeding is brought in an
inconvenient forum.
K. It is understood and agreed that Bear Xxxxxxx will act under this Agreement
as an independent contractor with obligations solely to the Trian Group and
is not being
(iii)
retained hereunder to advise the Trian Group as to the underlying business
decision to consummate any transaction in connection with the Assignment or
with respect to any related financing, derivative or other transaction.
Nothing in this Agreement or the nature of our services shall be deemed to
create a fiduciary or agency relationship between Bear Xxxxxxx and the
Trian Group or its partners, employees or creditors, in connection with the
Assignment or otherwise. Other than as set forth in the Indemnification
Provisions, nothing in this Agreement is intended to confer upon any other
person (including partners, employees or creditors of the Trian Group) any
rights or remedies hereunder or related hereto. The Trian Group agrees that
Bear Xxxxxxx shall not have any liability (including without limitation,
liability for any losses, claims, damages, obligations, penalties,
judgments, awards, liabilities, costs, expenses or disbursements) in
contract, tort or otherwise to the Trian Group, or to any person claiming
through the Trian Group, in connection with the engagement of Bear Xxxxxxx
pursuant to this Agreement and the matters contemplated hereby, except
where such liability resulted from the gross negligence, willful misconduct
or bad faith of Bear Xxxxxxx. The Trian Group further agrees that Bear
Xxxxxxx shall have no responsibility for any act or omission by any of the
Trian Group's Representatives.
L. This Agreement embodies the entire agreement and understanding, and
supersedes all prior agreements and understandings, of the Trian Group and
Bear Xxxxxxx with respect to the subject matter hereof. The provisions of
this Agreement may not be modified, amended, waived or supplemented except
in writing executed by the Trian Group and Bear Xxxxxxx.
(iv)
INDEMNIFICATION PROVISIONS
Capitalized terms used herein without definition shall have the meanings
ascribed thereto in the letter agreement dated September 8, 2006 (as amended
from time to time, the "Agreement") among Trian Fund Management, L.P., Xxxxxxx
Asset Management Corp. and Bear, Xxxxxxx & Co. Inc.
Each of Trian and Sandell agrees, severally and not jointly, subject to the
provisions set forth herein, to indemnify and hold harmless Bear Xxxxxxx, to the
fullest extent permitted by law, from and against any and all losses, claims,
damages, obligations, penalties, judgments, awards, and other liabilities
(collectively, "Liabilities"), and will fully reimburse Bear Xxxxxxx for any and
all fees, costs, expenses and disbursements (collectively, "Expenses"), as and
when incurred, of investigating, preparing or defending any claim, action, suit,
proceeding or investigation, whether or not in connection with pending or
threatened litigation or arbitration, and whether or not Bear Xxxxxxx is a party
(collectively, "Actions") (including any and all legal and other Expenses in
giving testimony or furnishing documents in response to a subpoena or
otherwise), arising out of or in connection with advice or services rendered or
to be rendered by Bear Xxxxxxx pursuant to the Agreement, the transactions
contemplated thereby or Bear Xxxxxxx' actions or inactions in connection with
any such advice, services or transactions; provided, however, such indemnity
agreement shall not apply to any portion of any such Liability or Expense that
resulted from the gross negligence, willful misconduct or bad faith of Bear
Xxxxxxx. The parties acknowledge and agree that any indemnity and reimbursement
obligations hereunder shall be borne severally by Trian and Xxxxxxx in
accordance with their Pro Rata Percentages.
These Indemnification Provisions shall be in addition to any liability that
Trian and Xxxxxxx may otherwise have and shall extend to the following: The Bear
Xxxxxxx Companies Inc., Bear, Xxxxxxx & Co. Inc., and their respective
affiliated entities, directors, officers, employees, legal counsel, agents and
controlling persons (within the meaning of the federal securities laws). All
references to Bear Xxxxxxx in these Indemnification Provisions shall be
understood to include any and all of the foregoing.
If any Action is commenced as to which Bear Xxxxxxx proposes to demand
indemnification hereunder, it shall notify the Trian Group with reasonable
promptness; provided, however, that any failure by Bear Xxxxxxx to notify the
Trian Group shall not relieve the Trian Group from its obligations hereunder
except to the extent that such failure so to notify the Trian Group materially
prejudices the Trian Group's rights. Trian may assume, at the expense of Trian
and Xxxxxxx (borne in accordance with their Pro Rata Percentages), the defense
of any Action exercisable upon written notice to Bear Xxxxxxx within 15 days of
notice by Bear Xxxxxxx provided pursuant to the preceding sentence, and such
defense shall be conducted by counsel chosen by Trian and reasonably
satisfactory to Bear Xxxxxxx; provided, however, that if (i) Trian shall fail to
assume such defense or employ counsel reasonably satisfactory to Bear Xxxxxxx as
soon as reasonably practicable after assuming such defense, (ii) in the
reasonable opinion of counsel to Bear Xxxxxxx, the use of counsel chosen by
Trian to represent Bear Xxxxxxx would present such counsel with a conflict of
interest, (iii) Trian authorizes Bear Xxxxxxx to employ separate counsel at the
Trian Group's expense (borne in accordance with their Pro Rata Percentages) or
(iv) Bear Xxxxxxx shall have been advised by its counsel that there may be legal
defenses available to Bear Xxxxxxx that are different from or additional to
those available to the Trian Group and that in the reasonable opinion of such
counsel are sufficient to make it undesirable for the same counsel to represent
both Bear Xxxxxxx and the Trian Group, then Bear Xxxxxxx shall have the right to
employ one separate firm of outside counsel in any such Action, such counsel
shall have the right to have charge of such matters for Bear Xxxxxxx and the
Trian Group shall not be entitled to assume the defense of such Action on behalf
of Bear Xxxxxxx, and in such event the reasonable fees and expenses of such
counsel shall be borne by the Trian Group (in accordance with their Pro Rata
Percentages). Neither Trian nor Xxxxxxx shall be liable for any settlement of
any claim against Bear Xxxxxxx unless it is made with each of Trian's and
Xxxxxxx'x prior written consent, which consent shall not be unreasonably
withheld. Neither Trian nor Xxxxxxx shall settle or compromise any claim, or
permit a default or consent to the entry of any judgment, in any Action in
respect of which indemnification may be sought hereunder without the prior
written consent of Bear Xxxxxxx, which consent shall not be unreasonably
withheld, if the settlement, compromise, default or consent includes an express
unconditional release of Bear Xxxxxxx from all Liabilities arising out of such
Action.
IN ORDER TO PROVIDE FOR JUST AND EQUITABLE CONTRIBUTION, IF A CLAIM FOR
INDEMNIFICATION PURSUANT TO THESE INDEMNIFICATION PROVISIONS IS MADE BUT IT IS
FOUND IN A FINAL JUDGMENT BY A COURT OF COMPETENT JURISDICTION (NOT SUBJECT TO
FURTHER APPEAL) THAT SUCH INDEMNIFICATION MAY NOT BE ENFORCED IN SUCH CASE
(OTHER THAN DUE TO THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR BAD FAITH OF BEAR
XXXXXXX AS PROVIDED ABOVE), EVEN THOUGH THE EXPRESS PROVISIONS HEREOF PROVIDE
FOR INDEMNIFICATION IN SUCH CASE, THEN TRIAN AND XXXXXXX, ON THE ONE HAND, AND
BEAR XXXXXXX, ON THE OTHER HAND, SHALL CONTRIBUTE TO THE LIABILITIES AND
EXPENSES TO WHICH THE INDEMNIFIED PERSONS MAY BE SUBJECT IN ACCORDANCE WITH THE
RELATIVE BENEFITS RECEIVED BY THE TRIAN GROUP, ON THE ONE HAND, AND BEAR
XXXXXXX, ON THE OTHER HAND, AND ALSO THE RELATIVE FAULT OF TRIAN AND XXXXXXX, ON
THE ONE HAND, AND BEAR XXXXXXX, ON THE OTHER HAND, IN CONNECTION WITH THE
STATEMENTS, ACTS OR OMISSIONS WHICH RESULTED IN SUCH LIABILITIES AND EXPENSES.
THE PARTIES AGREE FOR PURPOSES OF THIS PARAGRAPH THAT THE RELATIVE BENEFITS TO
THE TRIAN GROUP AND BEAR XXXXXXX OF THE ASSIGNMENT SHALL BE DEEMED TO BE IN THE
SAME PROPORTION AS THE TOTAL VALUE PAID OR CONTEMPLATED TO BE PAID TO THE TRIAN
GROUP IN CONNECTION WITH THE ASSIGNMENT BEARS TO THE FEES PAID OR TO BE PAID TO
BEAR XXXXXXX UNDER THE AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT ANY
CONTRIBUTION OBLIGATIONS HEREUNDER SHALL BE BORNE SEVERALLY BY TRIAN AND XXXXXXX
IN ACCORDANCE WITH THEIR PRO RATA PERCENTAGES. NOTWITHSTANDING THE FOREGOING,
BEAR XXXXXXX SHALL NOT BE OBLIGATED TO CONTRIBUTE ANY AMOUNT PURSUANT TO THIS
PARAGRAPH THAT EXCEEDS THE AMOUNT OF FEES PREVIOUSLY RECEIVED BY BEAR XXXXXXX
PURSUANT TO THE AGREEMENT.
