XXXXXXXXX & COMPANY, INC.
November 1, 1996
High River
000 Xxxxx Xxxxxxx Xxxx
Xxxxx Xxxxx, Xxx Xxxx 00000
__________________
Wall Street Plaza
__________________
Xxx Xxxx, XX 00000 LETTER OF AGREEMENT
__________________
212.440.9800 This Letter of Agreement sets forth the terms and
__________________ conditions of our employment to solicit proxies on
behalf of nominees selected by Xxxxxx Xxxxxxxx for
Fax 000.000.0000 the 1997 Annual Meeting of Stockholders of RJR
Nabisco Holdings Corp.:
(a) The services we will perform on your behalf
will include the solicitation of proxies from
brokers and banks (including non-objecting
beneficial owners behind such positions,
"NOBO's"), institutional holders, registered
holders and consultation with respect to such
solicitation.
(b) For our services, you will pay us a fee of
$300,000 as follows: $50,000 upon execution of
the agreement, which covers our commitment and
__________________ is non-refundable, $50,000 on January 15,
1997, $100,000 upon mailing of Xxxxxxxx'x
New York definitive proxy materials and $100,000 upon
__________________ the Annual Meeting date. You will also pay us
a fee of $5.00 per call to individual
London shareholders and NOBO's, which fee will
__________________ include all telephone charges. In addition,
if the Xxxxxxxx slate is successful in
Los Angeles electing its nominees or withdraws its
__________________ nominees because RJR Nabisco Holdings Corp.
agrees to a spinoff of Nabisco and the spinoff
Pittsburgh is successfully completed within nine months
thereafter, Xxxxxxxxx & Company Inc. will be
paid an additional fee and $200,000.
(C) In connection with our services under this
agreement, you agree to reimburse us, or pay
directly, or, where requested by us in special
situations, advance sufficient funds to us for
payment of the following cost and expenses:
--expenses incidental to the solicitation,
including preparation and mailing of the
notice and inquiry under Rule 14a-13 of the
Securities Exchange Act of 1934 and postage
and freight charges we incur in delivering
material;
--expenses we incur in working with our agents
or other parties involved in the solicitation,
including bank threshold lists, data
processing charges, charges for facsimile
transmissions or other forms of electronic
communication, charges for couriers and
tabulation of proxies;
--expenses we incur at your request or for
your convenience, including printing
additional and/or supplemental material,
copying, and travel expenses of our
executives;
--fees and expenses authorized by you
resulting from extraordinary contingencies
during the solicitation, including mailgrams
and datagrams.
(d) If requested, we will check, itemize, and pay,
on your behalf, from funds provided by you,
the charges of brokers and banks, with the
exception of ADP Proxy Services which will
xxxx you directly, for forwarding proxy
solicitation material to beneficial owners and
requesting voting instructions, including the
cost of cables, telegrams and telephone calls
when necessary. To ensure that we have
sufficient funds in your account to pay these
bills promptly, prior to the commencement of
the delivery of proxy soliciting material to
brokers and banks, with a preliminary payment
equal to the anticipated broker and bank
charges for two distributions of such
material. For this service, you will pay us
five dollars and fifty cents ($5.50) for each
broker and bank invoice paid by us.
(e) You represent to us that you will comply with,
and we represent to you that we will comply
with, applicable requirements of law relating
to the solicitation of proxies for such
meeting.
(f) High River Limited Partnership ("High River")
agrees to indemnify and hold harmless
Xxxxxxxxx & Company Inc. (for purposes of this
paragraph the terms "Xxxxxxxxx" shall include
Xxxxxxxxx & Company Inc. and all stockholders,
officers, directors, employees and agents of
Xxxxxxxxx & Company Inc.) against any and all
claims, costs, damages, liabilities,
judgements or expenses of any nature of
Xxxxxxxxx, including the reasonable costs and
expenses of counsel retained by Xxxxxxxxx,
unless High River assumes the defense of the
action, which results from claims, actions,
suits, subpoenas, demands or other proceedings
brought against or involving Xxxxxxxxx by any
party, including without limitation, any suit
by or on behalf of RJR Nabisco Holdings Corp.
or its officers, directors, employees or
stockholders, any proceeding of the Securities
and Exchange Commission, or any other cause of
action arising out of, relating to, or in
connection with, the services or duties
performed or exercised or advice or
information furnished by Xxxxxxxxx under or in
connection with this letter of Agreement,
(except for any loss, damage, expense,
liability or claim arising out of Xxxxxxxxx'x
own negligence or misconduct). At its
election, High River may assume the defense of
any such action. Xxxxxxxxx hereby agrees to
advise High River in writing of any such
liability or claim promptly after receipt of
any notice thereof. The indemnification
contained in this paragraph will survive the
term of the Agreement.
(g) Xxxxxxxxx agrees to preserve the
confidentiality of all non-public information
provided by High River, its affiliates,
officers, directors, representatives and/or
agents for our use in providing services under
this Agreement, or information developed by
Xxxxxxxxx based upon such non-public
information.
If the above is agreed to by you, please sign and return the
enclosed duplicate of this Agreement to Xxxxxxxxx & Company
Inc., Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx Xxxx, Contract Administrator.
ACCEPTED: Sincerely,
HIGH RIVER LIMITED PARTNERSHIP XXXXXXXXX & COMPANY INC.
By: __________________________ By:_____________________
Xxx XxXxxxxxx
Title:_______________________ Title:_______________________
Senior Managing Director
Date:_________________________
