{"id":43784,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/voting-and-indemnity-agreement-nabisco-group-holdings-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"voting-and-indemnity-agreement-nabisco-group-holdings-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/voting-and-indemnity-agreement-nabisco-group-holdings-corp.html","title":{"rendered":"Voting and Indemnity Agreement &#8211; Nabisco Group Holdings Corp., Philip Morris Cos. Inc. and Nabisco Holdings Corp."},"content":{"rendered":"<pre>\n                         VOTING AND INDEMNITY AGREEMENT\n\n      Voting and Indemnity Agreement dated as of June 25, 2000 between Nabisco\nGroup Holdings Corp. (\"NGH\"), a Delaware corporation, Philip Morris Companies\nInc., a Virginia corporation (\"Parent\"), and, solely for purposes of Sections\n5(d), 8(c) and 9 of this Agreement, Nabisco Holdings Corp., a Delaware\ncorporation (the \"Company\").\n\n      WHEREAS, the Company, Parent and Strike Acquisition Corp. (\"Merger\nSubsidiary\") are concurrently with the execution and delivery of this Agreement\nentering into an Agreement and Plan of Merger (the \"Merger Agreement\") pursuant\nto which Merger Subsidiary will merge with and into the Company on the terms and\nconditions set forth therein; and\n\n      WHEREAS, in order to induce Parent to enter into the Merger Agreement,\nParent has requested NGH, and NGH has agreed, to enter into this Agreement.\n\n      NOW, THEREFORE, the parties hereto agree as follows:\n\n      SECTION 1. Definitions. Capitalized terms used and not defined herein\nshall have the meaning assigned to such terms in the Merger Agreement.\n\n      SECTION 2. NGH Stockholder Meeting; Proxy Material. NGH shall cause a\nmeeting of its stockholders (the \"NGH Stockholder Meeting\") to be duly called\nand held (as promptly as practicable following filing of the proxy statement of\nNGH relating to such meeting) at which its stockholders will vote on a\nresolution to authorize the sale of the Shares (as defined below) pursuant to\nthe Merger Agreement (the \"NA Sale\") and related matters. Unless Parent\notherwise agrees, the NGH Stockholder Meeting will be held either simultaneously\nwith or prior to any other meeting of the NGH stockholders to be held in\nconnection with the NGH Merger Agreement or any other transaction replacing the\nNGH Merger Agreement. Subject to Section 6(c), the Board of Directors of NGH\nshall recommend approval of the NA Sale by NGH's stockholders. In connection\nwith such meeting, NGH will (i) promptly prepare and file with the SEC, use its\nbest efforts to have cleared by the SEC and thereafter mail to its stockholders\nas promptly as practicable a proxy statement of NGH and all other proxy\nmaterials for such meeting, (ii) use its reasonable best efforts (including\npostponing or adjourning the NGH Stockholder Meeting to solicit additional\nproxies for a period of up to 30 days) to obtain the approval of the NA Sale by\nholders of a majority of the outstanding stock of NGH entitled to vote thereon\n(the \"NGH Stockholder Approval\") and (iii) otherwise comply with all legal\nrequirements applicable to such meeting. The NGH Stockholder Approval will be\npresented as a single proposal in the NGH proxy statement and will not be\nconditioned on approval of \n\n\nany other proposal. Parent and its counsel shall be given an opportunity to\nreview and comment on the NGH proxy statement prior to its being filed with the\nSEC or mailed to NGH stockholders, and NGH shall provide to Parent copies of any\ncomments received from the SEC in connection therewith and shall consult with\nParent in responding to the SEC.\n\n      SECTION 3. Agreement to Vote. Subject to obtaining the NGH Stockholder\nApproval, NGH agrees to vote all Shares (as defined below) at any meeting of\nstockholders of the Company, or pursuant to any action by written consent (which\nconsent, in the case of clause (a) of this Section 3, it shall execute and\ndeliver to the Company immediately following (i.e. on the same day) receipt of\nthe NGH Stockholder Approval), in each case where such matters arise (a) in\nfavor of the adoption of the Merger Agreement and the transactions contemplated\nby the Merger Agreement and (b) against (i) any proposal made in opposition to\nor in competition with the Merger and the transactions contemplated by the\nMerger Agreement, (ii) any merger, reorganization, consolidation, share\nexchange, business combination, sale of assets or other similar transaction with\nor involving the Company and any party other than Parent, or (iii) any other\naction the consummation of which would reasonably be expected to prevent or\ndelay consummation of the transactions contemplated by the Merger Agreement.\n\n      SECTION 4. Representations and Warranties of NGH. NGH hereby represents\nand warrants to Parent that:\n\n      (a) Ownership of Shares. NGH owns, beneficially and of record, 213,250,000\nshares (the \"Shares\") of Class B common stock, $0.01 par value per share, of the\nCompany, free and clear of any Lien and, subject to applicable law, free of any\nother limitation or restriction (including any restriction on the right to vote\nor otherwise dispose of the Shares). None of the Shares is subject to any voting\ntrust or other agreement or arrangement with respect to the voting of such\nShares. Except for the Shares, NGH does not beneficially own any (i) shares of\ncapital stock or voting securities of the Company, (ii) securities of the\nCompany convertible into or exchangeable for shares of capital stock or voting\nsecurities of the Company or (iii) options or other rights to acquire from the\nCompany any capital stock, voting securities or securities convertible into or\nexchangeable for capital stock or voting securities of the Company, other than\nas provided in the Corporate Agreement dated as of June 14, 1999 among NGH, the\nCompany and R.J. Reynolds Tobacco Holdings, Inc. (\"RJR\").\n\n      (b) Corporate Authorization. Subject to obtaining the NGH Stockholder\nApproval, the execution, delivery and performance by NGH of this Agreement and\nthe consummation by NGH of the transactions contemplated hereby are within NGH's\ncorporate powers and have been duly authorized by all necessary \n\n\n                                       2\n\n\ncorporate action on the part of NGH. This Agreement has been duly executed and\ndelivered by NGH and constitutes a valid and binding Agreement of NGH.\n\n      (c) Non-Contravention. Subject to obtaining the NGH Stockholder Approval\nand to compliance with the matters set forth in Section 10, the execution,\ndelivery and performance by NGH of this Agreement and the consummation of the\ntransactions contemplated hereby do not and will not (i) contravene, conflict\nwith, or result in any violation or breach of any provision of the certificate\nof incorporation or bylaws of NGH, (ii) contravene, conflict with, or result in\nany violation or breach of any applicable law, rule, regulation, judgment,\ninjunction, order or decree, (iii) require any consent or other action by any\nPerson under, constitute (with or without notice or lapse of time or both) a\ndefault under, or cause or permit the termination, cancellation or acceleration\nor other change of any right or obligation or the loss of any benefit to which\nNGH is entitled under any provision of any agreement or other instrument binding\non NGH, except in the case of clauses (ii) and (iii) for such matters as would\nnot materially impair NGH's ability to perform its obligations under this\nAgreement.\n\n      (d) Opinion of Financial Advisors. NGH has received an opinion of UBS\nWarburg LLC and an opinion of Morgan Stanley &amp; Co. Incorporated, each dated as\nof the date of this Agreement and each to the effect that, as of the date of\nsuch opinion, the NA Sale is fair from a financial point of view to the\nCompany's stockholders, including NGH. Complete and correct signed copies of\nsuch opinions will be delivered to Parent as soon as practicable after the date\nof this Agreement. NGH has received the consent of each of UBS Warburg LLC and\nMorgan Stanley &amp; Co. Incorporated to include the above-referenced opinions in\nthe NGH proxy statement relating to the NA Sale.\n\n      (e) Tax Representation. NGH represents and warrants that the requirement\nset forth in Section 4.06 of the Tax Sharing Agreement with respect to this\nAgreement, the Merger Agreement and consummation of the transactions\ncontemplated by this Agreement and the Merger Agreement (collectively, the\n\"Transactions\") has been fully satisfied on or prior to the date hereof, each\nparty to the Tax Sharing Agreement has irrevocably waived any right it may\notherwise have had to consent to the Transactions, and no such party will have\nany claim or right under the Tax Sharing Agreement to payment from the Company\nor Parent in connection with the consummation of the Transactions insofar as\nsuch claim or right to payment relates to the taxability of the Internal\nDistribution or the Distribution (each as defined in the Tax Sharing Agreement)\nby reason of the consummation of the Transactions.\n\n      (f) NGH Merger Agreement. (i) NGH hereby represents and warrants to Parent\nthat the NGH Merger Agreement will be substantially in the form \n\n\n                                       3\n\n\npreviously provided to Parent. NGH will not amend or modify the NGH Merger\nAgreement or waive any of its rights thereunder in any manner that would\nreasonably be expected to materially delay or prevent consummation of the Merger\nor create any material additional liabilities of the Company.\n\n            (ii) With respect to NGH's actions under Section 6.05 (Surety\n      Obligations) of the NGH Merger Agreement, NGH shall take such actions in\n      consultation with the Company and in a manner that does not unreasonably\n      disrupt the Company's business or operations.\n\n            (iii) Without the prior written consent of Parent, NGH will not\n      amend or modify Section 7.04 of the NGH Merger Agreement in any manner\n      that would adversely affect Parent or the Company.\n\n      (g) Without limiting the indemnification provided in Section 9(a) herein\nand the assumption of liability for certain employee obligations in Section 7.04\nof the NGH Merger Agreement, the Company and NGH, after the date hereof, will\nconsider in good faith making appropriate arrangements to provide for the\nadministration of such employee obligations, provided that in no event will the\nCompany be required to incur any additional costs or liabilities in connection\ntherewith (other than routine administrative costs that do not impose any\nincremental costs on the Company).\n\n      SECTION 5. Certain Covenants. (a) Except pursuant to the terms of this\nAgreement and the Merger Agreement, NGH shall not, without the prior written\nconsent of Parent, directly or indirectly (i) grant any proxies or enter into\nany voting trust or other agreement or arrangement with respect to the voting of\nany Shares or (ii) acquire, sell, assign, transfer, encumber or otherwise\ndispose of, or enter into any contract, option or other arrangement or\nunderstanding with respect to the direct or indirect acquisition or sale,\nassignment, transfer, encumbrance or other disposition of, any Shares during the\nterm of this Agreement.\n\n      (b) During the period from the date of this Agreement until the Effective\nTime or earlier termination of this Agreement, NGH shall not terminate, amend,\nmodify or waive any provision of any confidentiality or standstill agreement\nrelating to the making of an Acquisition Proposal to which it or any of its\nSubsidiaries is a party (other than any involving Parent or its Subsidiaries).\nDuring such period, NGH agrees to use reasonable best efforts to enforce, to the\nfullest extent permitted under applicable law, the provisions of any such\nagreements, including seeking injunctions to prevent any breaches of such\nagreements and to enforce specifically the terms and provisions thereof in any\ncourt of the United States or any state thereof having jurisdiction.\n\n\n                                       4\n\n\n      (c) During the period from the date of this Agreement until the Effective\nTime or earlier termination of this Agreement, NGH shall not terminate, amend,\nmodify or waive any provision of the Rights Agreement, dated as of March 13,\n2000, between NGH and EquiServe Trust Company, N.A., as Rights Agent (the\n\"Rights Agreement\"), except (i) that NGH shall take all action necessary to\nensure that the transactions contemplated by the Merger Agreement and the NGH\nMerger Agreement (as defined below) are exempt from the provisions of the Rights\nAgreement and (ii) NGH may take any action necessary to permit any transaction\nthat is to be completed after consummation of the NA Sale, so long as such\naction would not adversely affect NGH's ability to obtain the NGH Stockholder\nApproval.\n\n      (d) The Company shall pay the fees, commissions and expenses of UBS\nWarburg LLC, Morgan Stanley &amp; Co. Incorporated, Bear, Stearns &amp; Co. Inc., Davis\nPolk &amp; Wardwell, Deloitte &amp; Touche LLP and any other advisors retained by the\nCompany or NGH in connection with the transactions contemplated by this\nAgreement and the Merger Agreement up to a maximum of $50 million (as permitted\nby Section 4.14 of the Merger Agreement). NGH shall pay, or at or prior to the\nEffective Time shall reimburse the Company for, all such fees, commission, and\nexpenses in excess of $50 million.\n\n      (e) Either before or after the Effective Time, NGH shall not amend the\nDistribution Agreement, dated as of May 12, 1999, among RJR Nabisco Holdings\nCorp., RJR Nabisco, Inc. and R.J. Reynolds Tobacco Company (the \"Distribution\nAgreement\") in any manner adverse to the Company's rights under Articles 7 or 8\nor Section 10.06 of the Distribution Agreement.\n\n      SECTION 6. No Solicitation; Other Offers. (a) From the date hereof until\nthe earlier of the Effective Time and the termination of this Agreement in\naccordance with Section 7, NGH will not, and NGH will use its reasonable best\nefforts to cause the officers, directors, employees, investment bankers,\nconsultants or other agents or representatives (collectively, \"Agents\") of NGH\nnot to, directly or indirectly, (i) solicit, initiate or encourage the\nsubmission of any Acquisition Proposal, (ii) engage in discussions or\nnegotiations with any Person concerning an Acquisition Proposal, (iii) disclose\nany nonpublic information relating to NGH or any of its Subsidiaries to any\nPerson who, to the knowledge of NGH, is considering making, or has made, an\nAcquisition Proposal or (iv) take any other action to facilitate any inquiries\nor the making of any proposal that constitutes, or that could reasonably be\nexpected to lead to, an Acquisition Proposal. NGH will notify Parent promptly\n(but in no event later than 24 hours) after receipt by NGH of any Acquisition\nProposal or any request for nonpublic information relating to NGH or any of its\nSubsidiaries by any Person who, to the knowledge of NGH, is making, or has made,\nan Acquisition Proposal. NGH shall promptly provide such \n\n\n                                       5\n\n\nnotice orally and in writing and shall identify the Person making, and all terms\nand conditions of, any such Acquisition Proposal or request. NGH shall keep\nParent promptly informed of the status and details of any such Acquisition\nProposal (including any amendments or proposed amendments) or request and any\ndiscussions or negotiations pursuant to Section 6(b) and NGH shall provide to\nParent copies of any written communications between NGH and the Person making\nthe Acquisition Proposal. NGH shall, and NGH shall use reasonable best efforts\nto cause the Agents of NGH to, cease immediately and cause to be terminated all\nactivities, discussions and negotiations, if any, with any Persons conducted\nprior to the date hereof with respect to any Acquisition Proposal. Nothing\ncontained in this Agreement shall prevent the Board of Directors of NGH from\ncomplying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any\nAcquisition Proposal.\n\n      (b) Notwithstanding the foregoing, NGH may prior to receipt of the NGH\nStockholder Approval negotiate or otherwise engage in substantive discussions\nwith, and furnish nonpublic information to, any Person in response to an\nunsolicited Acquisition Proposal by such Person if (i) NGH has complied with the\nterms of Section 6(a), (ii) the Board of Directors of NGH determines in good\nfaith that such Acquisition Proposal is likely to result in a Superior Proposal\nand, after consultation with outside legal counsel, that the failure to take\nsuch action would constitute a breach of its fiduciary duties under applicable\nlaw, (iii) such Person executes a confidentiality agreement with terms no less\nfavorable to NGH than those contained in the Confidentiality Agreement (except\nas to the standstill provisions) and (iv) NGH shall have delivered to Parent\nprior written notice advising Parent that it intends to take such action.\n\n      (c) The Board of Directors of NGH shall be permitted to withdraw, or\nmodify in a manner adverse to Parent, its recommendation to its stockholders\nreferred to in Section 2 hereof, but only if (i) NGH has complied with the terms\nof Section 6(a), (ii) NGH has received an unsolicited Acquisition Proposal which\nthe Board of Directors determines in good faith constitutes a Superior Proposal,\n(iii) the Board of Directors of NGH determines in good faith, after consultation\nwith outside legal counsel, that the failure to take such action would\nconstitute a breach of its fiduciary duties under applicable law and (iv) NGH\nshall have delivered to Parent a prior written notice advising Parent that it\nintends to take such action.\n\n      (d) For purposes of this Agreement:\n\n      \"Acquisition Proposal\" means any offer or proposal for a merger,\nreorganization, consolidation, share exchange, business combination, or other\nsimilar transaction involving NGH or any of its Subsidiaries or any proposal or\noffer to acquire, directly or indirectly, more than 35% of the voting securities\nof \n\n\n                                       6\n\n\nNGH or the Company, or a substantial portion of the assets of NGH and its\nSubsidiaries taken as a whole, other than the transactions contemplated by the\nMerger Agreement or any transaction to be completed after consummation of the NA\nSale.\n\n      \"Superior Proposal\" means any bona fide written Acquisition Proposal (i)\non terms that the Board of Directors of NGH determines in good faith (after\nconsultation with a financial advisor of nationally recognized reputation and\ntaking into account all the terms and conditions of the Acquisition Proposal\nincluding the legal, financial and regulatory aspects of the proposal) are more\nfavorable to NGH's stockholders (taking into account the consideration to be\nreceived by NGH in the NA Sale) than the transaction contemplated by the Merger\nAgreement, as amended pursuant to Section 10.01(d) of the Merger Agreement, if\napplicable, and (ii) that is reasonably likely to be consummated by the Person\nmaking such Acquisition Proposal.\n\n      (e) NGH will promptly provide to Parent any information regarding NGH\nprovided to any Person making an Acquisition Proposal which was not previously\nprovided to Parent.\n\n      SECTION 7. Termination. (a) Unless earlier terminated pursuant to this\nSection, this Agreement will terminate on the earlier to occur of: (i) the\nconsummation of the Merger, (ii) termination of the Merger Agreement in\naccordance with its terms and (iii) the date of the NGH Stockholder Meeting,\nincluding reasonable extensions thereof up to 30 days to obtain additional\nproxies, if the NGH Stockholder Approval shall not have been obtained at such\nmeeting by reason of the failure to obtain the required vote.\n\n      (b) NGH may terminate this Agreement if the Board of Directors of NGH\nauthorizes NGH, subject to complying with the terms of this Agreement, to enter\ninto a written agreement concerning a Superior Proposal, provided, however that\n(i) NGH shall have complied with Section 6 hereof, (ii) NGH shall have given\nParent at least three Business Days written prior notice of its intention to\nterminate the Agreement, attaching a description of all material terms and\nconditions of the Superior Proposal to such notice, (iii) during such three\nBusiness Days or greater period, the Company and NGH engage in good faith\nnegotiations with Parent with respect to such changes as Parent may propose to\nthe terms of this Agreement, the Merger and the Merger Agreement, (iv) Parent\ndoes not make, prior to such termination of this Agreement, a definitive,\nbinding offer which the Board of Directors of NGH determines, in good faith\nafter consultation with its financial advisors, is at least as favorable to the\nNGH stockholders (taking into account the consideration to be received by NGH in\nthe NA Sale) as the Superior Proposal and (v) NGH, prior to such termination\npursuant to this clause \n\n\n                                       7\n\n\n(b), pays to Parent in immediately available funds the fee required to be paid\npursuant to Section 8(b). NGH agrees to notify Parent promptly if its intention\nto enter into a written agreement in connection with a Superior Proposal shall\nchange at any time after giving such notification.\n\n      (c) Parent may terminate this Agreement if:\n\n            (i) the Board of Directors of NGH shall have failed to recommend or\n      shall have withdrawn, or modified in a manner adverse to Parent, its\n      approval or recommendation of the NA Sale, shall have approved or\n      recommended a Superior Proposal, or shall have resolved to do any of the\n      foregoing;\n\n            (ii) NGH shall have entered into, or publicly announced its\n      intention to enter into, a definitive agreement or an agreement in\n      principle with respect to a Superior Proposal; or\n\n            (iii) NGH shall breach its obligations set forth in Section 3, which\n      breach shall not be cured within two Business Days.\n\n      (d) The provisions of Sections 8, 9, 15, 16 and 17 will survive any\ntermination of this Agreement pursuant to Section 7. The provisions of Sections\n4(e), 5(d), 5(e), 11 and 14 will survive termination of this Agreement pursuant\nto Section 7(a)(i). The provisions of Section 9 of this Agreement will terminate\nautomatically if both the Merger Agreement and the NGH Merger Agreement shall\nhave been terminated.\n\n      SECTION 8. Expenses. (a) Except as otherwise provided in this Agreement,\nall costs and expenses incurred in connection with this Agreement shall be paid\nby the party incurring such cost or expense.\n\n      (b) If:\n\n            (i) NGH shall terminate this Agreement pursuant to Section 7(b);\n\n            (ii) this Agreement shall terminate pursuant to Section 7(a)(iii)\n      and (A) prior to the NGH Stockholder Meeting a third party or NGH or the\n      Company shall have announced an Acquisition Proposal and (B) within nine\n      months after termination of this Agreement the Company or NGH enters into\n      a definitive agreement in respect of any Acquisition Proposal with respect\n      to the Company or NGH, respectively, or such a transaction is consummated;\n      or\n\n\n                                       8\n\n\n            (iii) Parent shall terminate this Agreement pursuant to Section\n      7(c);\n\nthen NGH shall pay to Parent (by wire transfer of immediately available funds\nnot later than the date of termination of this Agreement or, in the case of\nclause (ii), the date of such definitive agreement) an amount equal to $445\nmillion less any amounts previously paid pursuant to Section 11.04(b) or\n11.04(c) of the Merger Agreement. NGH shall be entitled to deduct and withhold\nfrom any payments made to Parent under this Section 8(b) such amounts as may be\nrequired to be deducted or withheld therefrom under the Code or under any\napplicable provisions of state or local tax law. To the extent such amounts are\nso deducted or withheld, such amounts shall be treated for purposes of this\nSection 8(b) as having been paid to Parent.\n\n      (c) Notwithstanding the foregoing, if a fee shall become payable pursuant\nto both Section 8(b) of this Agreement and Section 11.04(b) of the Merger\nAgreement, the Company shall, and NGH shall cause the Company to, pay such fee\nin accordance with and at the time provided for in the Merger Agreement and no\nfee shall be initially payable by NGH hereunder; provided that NGH shall remain\nliable and shall immediately pay such fee to the extent that the Company shall\nfail timely to pay such fee in full, in which case NGH shall have the right to\nobtain reimbursement of the fee from the Company.\n\n      SECTION 9. Indemnification.\n\n      (a) NGH Indemnification of Parent for NGH Liabilities. Subject to Section\n9(c), on and after the Effective Time, NGH shall indemnify and hold harmless\nParent and its affiliates (including the Company after the Merger) and their\nrespective present and former directors, officers and employees (each, a \"Parent\nIndemnitee\") from and against any and all damage, loss, liability and expense\n(including reasonable expenses of investigation and reasonable attorneys' fees\nand expenses in connection with any action, suit or proceeding) (\"Losses\")\nincurred or suffered by any Parent Indemnitee arising out of any NGH\nLiabilities, regardless of whether such Losses arise as a result of the\nnegligence or strict liability (or any other liability under any theory of law\nor equity) of such Parent Indemnitee.\n\n      (b) Company Indemnification of NGH for Company Liabilities. Subject to\nSection 9(c), on and after the Effective Time, the Company shall indemnify and\nhold harmless NGH and its affiliates and their respective present and former\ndirectors, officers and employees (each, an \"NGH Indemnitee\") from and against\nany and all Losses incurred or suffered by any NGH Indemnitee arising out of any\n\n\n                                       9\n\n\nCompany Liabilities, regardless of whether such Losses arise as a result of the\nnegligence or strict liability (or any other liability under any theory of law\nor equity) of such NGH Indemnitee.\n\n      (c) Third-Party Rights; Tax Benefits and Insurance Proceeds. Any\nindemnification pursuant to Section 9(a) or Section 9(b) shall be paid net of\nany tax benefit or insurance proceeds to the Indemnified Party attributable to\nthe relevant payment. It is expressly agreed that no insurer or any other third\nparty shall be (i) entitled to a benefit (as a third-party beneficiary or\notherwise) that it would not be entitled to receive in the absence of Section\n9(a) or Section 9(b), (ii) relieved of the responsibility to pay any claims to\nwhich it is obligated or (iii) entitled to any subrogation rights with respect\nto any obligation under Section 9(a) or Section 9(b).\n\n      (d) Insurance. NGH agrees to provide reasonable cooperation at the expense\nof the Company in connection with any claims the Company may have under\ninsurance policies in effect at any time prior to the Effective Time that in any\nway relate to Company Liabilities or Liabilities in respect of officers and\ndirectors of the Company acting in their capacities as such. The Company agrees\nto provide reasonable cooperation at the expense of NGH in connection with any\nclaims NGH may have under insurance policies in effect at any time prior to the\nEffective Time that in any way relate to NGH Liabilities or Liabilities in\nrespect of officers and directors of NGH acting in their capacities as such.\n\n      (e) Definitions. For purposes of this Section 9, the following terms have\nthe following meanings:\n\n      \"Company Liabilities\" means all Liabilities, whether arising before, at or\nafter the Effective Time, of or in any way relating, in whole or in part, to (a)\nthe Company or any of its Subsidiaries or their respective employees (except to\nthe extent defined as NGH Liabilities below or expressly assumed by NGH pursuant\nto Section 7.04 of the NGH Merger Agreement as in effect on the date hereof or\nas amended with the prior written consent of Parent) or arising from the conduct\nof, in connection with or in any way relating to, in whole or in part, the\nbusiness of the Company and its Subsidiaries, or the ownership or use of assets\nor property in connection with that business or (b) any Benefit Arrangement or\nEmployee Plan (as such terms are defined in the Merger Agreement) except to the\nextent expressly assumed by NGH pursuant to Section 7.04 of the NGH Merger\nAgreement as in effect on the date hereof or as amended with the prior written\nconsent of Parent. Notwithstanding the foregoing, \"Company Liabilities\" shall\nexclude all Liabilities for Taxes of the Company or any of its Subsidiaries and\nall Liabilities for Taxes that may otherwise be collected from the Company or\nany of its Subsidiaries, in each case to the extent governed by the Tax Sharing\n\n\n                                       10\n\n\nAgreement.\n\n      \"Liabilities\" means any and all claims, debts, liabilities and obligations\nof any kind, character or description (whether known or unknown, accrued,\nabsolute, contingent or otherwise) whenever arising, including all costs and\nexpenses relating thereto.\n\n      \"NGH Liabilities\" means all Liabilities (other than Company Liabilities),\nwhether arising before, at or after the Effective Time, of or in any way\nrelating, in whole or in part, to (a) NGH or its employees or arising from the\nconduct of, in connection with or in any way relating to, in whole or in part,\nNGH's business, or the ownership or use of assets or property in connection with\nthat business or (b) the Liabilities expressly assumed by NGH pursuant to\nSection 7.04 of the NGH Merger Agreement as in effect on the date hereof or as\namended with the prior written consent of Parent. Notwithstanding the foregoing,\n\"NGH Liabilities\" shall exclude all (i) Liabilities for Taxes of NGH and all\nLiabilities for Taxes that may otherwise be collected from NGH, in each case to\nthe extent governed by the Tax Sharing Agreement and (ii) Liabilities addressed\nin Section 8.02 of the Distribution Agreement dated as of May 12, 1999 among\nNGH, RJR and R. J. Reynolds Tobacco Company, which provision shall remain in\neffect in accordance with its terms. Without limiting the generality of the\nforegoing, \"NGH Liabilities\" shall also include all Liabilities (i) for\ncompensation deferred pursuant to any deferred compensation plan, arrangement or\nagreement of NGH (which such plan shall not include the Company's Deferred\nCompensation Plan); (ii) for compensation, benefits, severance pay and benefits,\nor any similar payment or benefit that is payable with respect to service by any\nindividual as an employee or director of NGH, whether or not such compensation\nhas been deferred pursuant to the Company's Deferred Compensation Plan or any\nother Employee Arrangement, except to the extent NGH has previously contributed\nassets to fund such amounts to the Retention Plan and Deferred Compensation Plan\ntrust of Nabisco, Inc. (the \"Trust\"); (iii) with respect to or arising out of\nany option to acquire equity securities of NGH or any award of restricted stock,\nrestricted stock units, performance shares, performance units or other awards,\nin each case based on equity securities of NGH or granted pursuant to the\nNabisco Group Holdings Corp. 1990 Long Term Incentive Program, (iv) any\n\"grossup\" or similar make-whole or indemnity payment required to be made under\nany Employee Arrangement with respect to excise, income or other taxes imposed\non any of the foregoing; and (v) Taxes imposed on the income of the Trust\nattributable to assets thereof funding any of the foregoing.\n\n      \"NGH Merger Agreement\" means the Agreement and Plan of Merger dated as of\nJune 25, 2000 among NGH, R.J. Reynolds Tobacco Holdings, Inc. and RJR\nAcquisition Corp.\n\n\n                                       11\n\n\n      \"Tax Sharing Agreement\" means the Tax Sharing Agreement dated as of June\n14, 1999 among NGH, RJR, the Company and R. J. Reynolds Tobacco Company, as such\nagreement may be amended from time to time by agreement of all the parties\nthereto.\n\n      SECTION 10. Trust Originated Preferred Securities. Reference is made to\nthe Amended and Restated Declaration of Trust of Nabisco Group Holdings Capital\nTrust II (formerly called RJR Nabisco Holdings Capital Trust II) dated as of\nSeptember 16, 1998, as amended by Amendment No. 1 thereto dated as of July 12,\n1999 (the \"Declaration\"). Capitalized terms used in this Section 10 but not\ndefined elsewhere in this Agreement shall have the meanings assigned to such\nterms in the Declaration. After the date hereof, and at such time as will not\ndelay consummation of the Merger, NGH shall exercise its option under the\nDeclaration to cause the Trustees to (i) dissolve the Trust and (ii) cause the\nDebentures to be distributed to Holders of the Preferred Securities and Common\nSecurities in exchange therefor, which in each case shall occur prior to the\nEffective Time. In addition, NGH will (x) deliver an irrevocable notice to the\nDebenture Trustee stating that all outstanding Debentures are to be redeemed on\nSeptember 30, 2003 and (y) take all necessary action to cause the conditions set\nforth in Section 10.1(C) of the Indenture to be satisfied such that a \"covenant\ndefeasance\" under such section will occur concurrently with the above-described\ndissolution of the Trust and distribution of the Debentures.\n\n      SECTION 11. Name Change. As promptly as practicable after the Effective\nTime, NGH shall change its name and the names of any of its Subsidiaries or\nrelated entities to new names that do not include the word \"Nabisco\" or any\nderivatives thereof and shall cease to use such name or derivatives in its\nbusiness or operations.\n\n      SECTION 12. Notices. All notices, requests and other communications to any\nparty hereunder shall be in writing (including facsimile transmission) and shall\nbe given,\n\n      if to Parent, to:\n\n            Philip Morris Companies Inc.\n            120 Park Avenue\n            New York, New York 10017\n            Attention: Charles R. Wall\n            Fax: (917) 663-5817\n\n            with a copy to:\n\n            Wachtell, Lipton, Rosen &amp; Katz\n\n\n                                       12\n\n\n            51 West 52nd Street\n            New York, New York 10019\n            Attention: Martin Lipton\n                       Andrew J. Nussbaum\n            Fax: (212) 403-2000\n\n            and\n\n            Hunton &amp; Williams\n            200 Park Avenue\n            New York, New York 10166\n            Attention: Jerry E. Whitson\n            Fax: (212) 309-1100\n\n      if to NGH, to:\n\n            Nabisco Group Holdings Corp.\n            7 Campus Drive\n            Parsippany, New Jersey 07054\n            Attention: James A. Kirkman III\n            Fax: (973) 539-9150\n\n            with a copy to:\n\n            Davis Polk &amp; Wardwell\n            450 Lexington Avenue\n            New York, New York 10017\n            Attention: William L. Rosoff\n            Fax: (212) 450-4800\n\nor such other address or facsimile number as such party may hereafter specify\nfor the purpose by notice to the other parties hereto. All such notices,\nrequests and other communications shall be deemed received on the date of\nreceipt by the recipient thereof if received prior to 5 p.m. in the place of\nreceipt and such day is a business day in the place of receipt. Otherwise, any\nsuch notice, request or communication shall be deemed not to have been received\nuntil the next succeeding business day in the place of receipt.\n\n      SECTION 13. Amendments; No Waivers. (a) Any provision of this Agreement\nmay be amended or waived if, but only if, such amendment or waiver is in writing\nand is signed, in the case of an amendment, by each party to this Agreement or,\nin the case of a waiver, by each party against whom the waiver is to be\neffective.\n\n\n                                       13\n\n\n      (b) No failure or delay by any party in exercising any right, power or\nprivilege hereunder shall operate as a waiver thereof nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the\nexercise of any other right, power or privilege. The rights and remedies herein\nprovided shall be cumulative and not exclusive of any rights or remedies\nprovided by law.\n\n      SECTION 14. Successors and Assigns. The provisions of this Agreement shall\nbe binding upon and inure to the benefit of the parties hereto and their\nrespective successors and assigns, provided that no party may assign, delegate\nor otherwise transfer any of its rights or obligations under this Agreement\nwithout the consent of each other party hereto. If Parent, NGH or the Surviving\nCorporation or any of its respective successors or assigns (i) consolidates with\nor merges into any other Person and shall not be the surviving corporation or\nentity of such consolidation or merger, or (ii) transfers or conveys all or\nsubstantially all of its properties and assets to any Person, then, and in each\nsuch case, proper provision shall be made so that the successors and assigns of\nParent, NGH, or the Surviving Corporation, as the case may be, shall assume the\nobligations set forth in this Agreement.\n\n      SECTION 15. Governing Law. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of Delaware, without regard\nto the conflicts of laws rules of such state.\n\n      SECTION 16. Jurisdiction. Any suit, action or proceeding seeking to\nenforce any provision of, or based on any matter arising out of or in connection\nwith, this Agreement or the transactions contemplated hereby may be brought in\nany federal court located in the State of Delaware or any Delaware state court,\nand each of the parties hereby consents to the jurisdiction of such courts (and\nof the appropriate appellate courts therefrom) in any such suit, action or\nproceeding and irrevocably waives, to the fullest extent permitted by law, any\nobjection that it may now or hereafter have to the laying of the venue of any\nsuch suit, action or proceeding in any such court or that any such suit, action\nor proceeding brought in any such court has been brought in an inconvenient\nform. Process in any such suit, action or proceeding may be served on any party\nanywhere in the world, whether within or without the jurisdiction of any such\ncourt. Without limiting the foregoing, each party agrees that service of process\non such party as provided in Section 12 shall be deemed effective service of\nprocess on such party.\n\n      SECTION 17. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY\nIRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING\nARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED\nHEREBY.\n\n\n                                       14\n\n\n      SECTION 18. Counterparts; Effectiveness; Benefit. This Agreement may be\nsigned in any number of counterparts, each of which shall be an original, with\nthe same effect as if the signatures thereto and hereto were upon the same\ninstrument. This Agreement shall become effective when each party hereto shall\nhave received counterparts hereof signed by all of the other parties hereto.\nExcept as provided in Section 9, no provision of this Agreement is intended to\nconfer any rights, benefits, remedies, obligations, or liabilities hereunder\nupon any Person other than the parties hereto and their respective successors\nand assigns.\n\n      SECTION 19. Entire Agreement. This Agreement, the Confidentiality\nAgreement and the Merger Agreement constitute the entire agreement between the\nparties with respect to the subject matter of this Agreement and supersedes all\nprior agreements and understandings, both oral and written, between the parties\nwith respect to the subject matter of this Agreement.\n\n      SECTION 20. Captions. The captions herein are included for convenience of\nreference only and shall be ignored in the construction or interpretation\nhereof.\n\n      SECTION 21. Severability. If any term, provision, covenant or restriction\nof this Agreement is held by a court of competent jurisdiction or other\nauthority to be invalid, void, unenforceable, the remainder of the terms,\nprovisions, covenants and restrictions of this Agreement shall remain in full\nforce and effect and shall in no way be affected, impaired or invalidated so\nlong as the economic or legal substance of the transactions contemplated hereby\nis not affected in any manner materially adverse to any party. Upon such a\ndetermination, the parties shall negotiate in good faith to modify this\nAgreement so as to effect the original intent of the parties as closely as\npossible in an acceptable manner in order that the transactions contemplated\nhereby be consummated as originally contemplated to the fullest extent possible.\n\n      SECTION 22. Specific Performance. The parties hereto agree that\nirreparable damage would occur if any provision of this Agreement were not\nperformed in accordance with the terms hereof and that the parties shall be\nentitled, without posting a bond or similar indemnity, to an injunction or\ninjunctions to prevent breaches of this Agreement or to enforce specifically the\nperformance of the terms and provisions hereof in any federal court located in\nthe State of Delaware or any Delaware state court, in addition to any other\nremedy to which they are entitled at law or in equity.\n\n\n                                       15\n\n\n      IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be\nduly executed by their respective authorized officers as of the day and year\nfirst above written.\n\n                                 PHILIP MORRIS COMPANIES INC.\n\n                                 By: \/s\/ Louis Camilleri             \n                                     -------------------------------------------\n                                     Name:  Louis Camilleri\n                                     Title: Senior Vice President and Chief \n                                            Executive Officer\n\n\n                                 NABISCO GROUP HOLDINGS CORP.\n\n                                 By: \/s\/ James M. Kilts              \n                                     -------------------------------------------\n                                     Name:  James M. Kilts\n                                     Title: President and Chief Executive \n                                            Officer\n\n\n                                 NABISCO HOLDINGS CORP.,\n                                 solely for purposes of Section 5(d), 8(c) \n                                 and 9 hereof\n\n                                 By: \/s\/ James M. Kilts             \n                                     -------------------------------------------\n                                     Name:  James M. Kilts\n                                     Title: President and Chief Executive \n                                            Officer\n\n\n                                       16\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8280],"corporate_contracts_industries":[9425],"corporate_contracts_types":[9622,9626],"class_list":["post-43784","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-nabisco-holdings-corp","corporate_contracts_industries-food__grains","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43784","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43784"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43784"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43784"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43784"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}