EXHIBIT 2.2
ESCROW AGREEMENT
THIS ESCROW AGREEMENT, dated as of ____________, 1996 ("Agreement"), is
by and among Whole Foods Market, Inc., a Texas corporation ("WFM");
__________________ and ____________________ (the "Shareholders'
Representatives"), in their capacity as attorneys-in-fact for the former
shareholders (collectively the "FF Shareholders") of Fresh Fields Markets,
Inc., a Delaware corporation ("FF"); and Texas Commerce Bank, N.A. ("Escrow
Agent").
W I T N E S S E T H:
WHEREAS, WFM and FF are parties to that certain Agreement and Plan of
Merger, dated as of June 17, 1996 (the "Merger Agreement"), pursuant to which
FF has become a wholly-owned subsidiary of WFM (capitalized terms not
otherwise defined herein having the respective meanings set forth in the
Merger Agreement); and
WHEREAS, WFM agreed in the Merger Agreement to deposit certain of the
WFM Merger Shares in an escrow account to be used to satisfy certain
indemnities provided in Section 8.3 of the Merger Agreement; and
In consideration of the mutual covenants and agreements contained herein
and certain other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto covenant and
agree as follows:
1. APPOINTMENT OF ESCROW AGENT AND DEPOSIT OF ESCROW SHARES. WFM and
the Shareholders' Representatives hereby appoint and designate the Escrow
Agent as the Escrow Agent hereunder, and the Escrow Agent hereby accepts such
appointment and agrees to serve hereunder for the purposes and on the terms
set forth herein. WFM hereby deposits _________ WFM Merger Shares (the
"Escrow Shares") with the Escrow Agent. The Escrow Agent shall receive, hold
and deliver the Escrow Shares as provided for herein.
2. DUTIES OF SHAREHOLDERS' REPRESENTATIVES.
(a) Pursuant to the terms of the Merger Agreement, the
Shareholders' Representatives, as attorneys-in-fact and agents for the FF
Shareholders, shall give and receive notices and communications, authorize
delivery to WFM of the Escrow Shares or other property held by the Escrow
Agent pursuant to this Agreement in satisfaction of claims by WFM, object to
such deliveries, agree to, negotiate, enter into settlements and compromises
of, and demand arbitration and comply with orders of courts and awards of
arbitrators with respect to such claims, and take all actions necessary or
appropriate in the judgment of the Shareholders' Representatives for the
accomplishment of the foregoing. Such agency may be changed by the holders
of a majority in interest of the Escrow Shares from time to time upon not
less than ten (10) days' prior written notice to WFM. No bond shall be
required of the Shareholders' Representatives, and the Shareholders'
Representatives shall receive no compensation for their services. Notices or
communications to or from the Shareholders' Representatives shall constitute
notice to or from each of the FF Shareholders.
(b) The Shareholders' Representatives shall not be liable and the
FF Shareholders shall indemnify the Shareholders' Representatives for any act
done or omitted hereunder as Shareholders' Representatives while acting in
good faith and in the exercise of reasonable judgment, and any act done or
omitted pursuant to the advice of counsel shall be conclusive evidence of
such good faith and reasonable judgment. In no case shall the Shareholders'
Representatives be personally liable for any error in judgment or any acts or
steps taken or permitted to be taken in good faith, or for any mistake of law
or fact, or for anything it may do or refrain from doing in connection
herewith, except for its own willful misconduct or gross negligence.
(c) The Shareholders' Representatives shall have reasonable access
to information about FF and WFM and the reasonable assistance of FF's and
WFM's officers and employees for purposes of performing their duties and
exercising their rights hereunder, provided that the Shareholders'
Representatives shall treat confidentially and not disclose any nonpublic
information from or about FF or WFM to anyone (except on a need to know basis
to individuals who agree to treat such information confidentially).
(d) A decision, act, consent or instruction of the Shareholders'
Representatives shall constitute a decision of all FF Shareholders for whom
Escrow Shares otherwise issuable to them are deposited with the Escrow Agent
and shall be final, binding and conclusive as to the Escrow Shares
beneficially owned by each such FF Shareholder, and the Escrow Agent and WFM
may rely upon any decision, act, consent or instruction of each of the
Shareholders' Representatives as being the decision, act, consent or
instruction of each and every such FF Shareholder. The Escrow Agent and WFM
are hereby relieved from any liability to the FF Shareholders for any acts
done by them in accordance with such decision, act, consent or instruction of
the Shareholders' Representatives.
(e) The Shareholders' Representatives shall receive no
compensation for their services. Notwithstanding the above, any fees and
expenses (including without limitation fees of counsel) incurred by the
Shareholders' Representatives in connection with actions taken pursuant to
the terms of this Agreement will be paid by payments of Escrow Shares
disbursed by the Escrow Agent upon receipt from the Shareholders'
Representatives of an accounting, in reasonable detail, of such expenses.
The Shareholders' Representatives shall be indemnified severally by FF
Shareholders to the extent of their pro rata interests in the Escrow Shares
against any
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claims, charges or liabilities of any kind arising from their
actions taken or omitted to be taken in good faith in connection with this
Agreement. The Escrow Agent shall disburse to the Shareholders'
Representatives Escrow Shares (or the proceeds from the sale of Escrow Shares
as the Escrow Agent shall determine in its discretion) as an advance to cover
expenses incurred by the Shareholders' Representatives upon request by the
Shareholders' Representatives therefor and pursuant to the indemnification
provisions herein. With respect to any such sold Escrow Shares, the Escrow
Agent will provide each FF Shareholder for whose account the Escrow Shares
were sold with sufficient information to enable such FF Shareholder to
determine and report the tax consequences of the sale.
3. ESTABLISHMENT OF ESCROW.
3.1 DEPOSIT OF ESCROW SHARES.
(a) Pursuant to the Merger Agreement, WFM, Merger Corp. and
FF have agreed that WFM will transfer to the Escrow Agent certificates
representing 5% of the number of whole shares of WFM Common Stock (the
"Escrow Shares") to which the holders of FF Capital Stock (other than holders
of Dissenting Shares) are entitled pursuant to Article 2 of the Merger
Agreement. The Escrow Shares required to be deposited in the Escrow
Agreement pursuant to this Agreement and the FF Shareholders' percentage
interests therein are set forth in EXHIBIT A attached hereto.
(b) Except as provided in Sections 2(e) and 7 of this
Agreement, the Escrow Shares shall be held and used only for the purposes of
funding the indemnity obligations set forth in Section 8.3 of the Merger
Agreement.
3.2 RECEIPT. The Escrow Agent hereby acknowledges receipt of a
fully executed copy of the Merger Agreement and the Escrow Shares and agrees
to hold and disburse the Escrow Shares in accordance with the terms and
conditions of this Agreement for the uses and purposes stated herein.
3.3 VOTING RIGHTS OF ESCROW SHARES. As long as such shares remain
subject to this Agreement, all voting rights with respect to the Escrow
Shares shall be exercised by the FF Shareholders in accordance with their
proportionate interests therein, and the Escrow Agent shall from time to time
execute and deliver to the FF Shareholders such proxies, consents or other
documents as may be necessary to enable the respective FF Shareholders to
exercise such rights.
3.4 DIVIDENDS. Pending the disbursement of the Escrow Shares
pursuant to this Agreement, the Escrow Agent shall hold the certificates
representing the Escrow Shares in the Escrow Fund. Except for tax-free
dividends paid in stock declared with respect to the Escrow Shares pursuant
to Section 305(a) of the Internal Revenue Code of 1986, as amended, any cash
dividends, dividends payable in
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securities or other distributions of any kind made in respect of the Escrow
Shares will be distributed currently by the Escrow Agent to the FF
Shareholders in accordance with their proportionate interests in the Escrow
Shares.
4. LIABILITIES COVERED. This Agreement has been executed and the
deposit of the Escrow Shares hereunder has been made pursuant to Section 2.6
of the Merger Agreement. The deposit of the Escrow Shares with the Escrow
Agent has been made solely for the purpose of funding, to the extent of the
Escrow Shares, FF's indemnification obligations under Section 8.3 of the
Merger Agreement. This funding obligation terminates on the later of the
following: (i) one year from the Effective Date, or (ii) with respect to any
specific representation or warranty in the Merger Agreement under which WFM
shall have made a claim for indemnification thereunder prior to the first
anniversary of the Effective Date and shall have provided notice of such
claim to the Escrow Agent as provided in Section 6 hereof and if such claim
has not been completely and finally resolved prior to the first anniversary
of the Effective Date, the period of time beyond the first anniversary of the
Effective Date sufficient to completely and finally resolve the claim
relating to such representation or warranty.
5. DISBURSEMENT OF THE DEPOSIT. The Escrow Agent shall disburse the
Escrow Shares as follows:
(a) Subject to the provisions of Section 9 hereof, upon the
expiration of twelve (12) months from the date hereof, Escrow Agent shall
disburse to the FF Shareholders all of the Escrow Shares MINUS such number of
Escrow Shares equal to the sum of (A) any Escrow Shares distributed to WFM
pursuant to paragraph (b) below, (B) any amounts with respect to which the
Escrow Agent has received a written objection to disbursement from WFM or the
Shareholders' Representatives pursuant to paragraph (b) below and (C) any
amount as to which the Escrow Agent has received a written notice from any of
the Shareholders' Representatives requesting payment for expenses incurred or
the maintenance by the Escrow Agent of a reserve for future expenses of the
Stockholders' Representative in such amount as reasonably estimated by them
in good faith. The Escrow Agent shall then distribute such disbursed shares
to the FF Shareholders in proportion to the FF Shareholders' percentage
interests set forth in EXHIBIT A hereto.
(b) WFM or the Shareholders' Representatives may deliver to the
Escrow Agent written notice (the "Notice") requesting that the Escrow Agent
pay all or a portion of such Escrow Shares to WFM to satisfy a claim pursuant
to Section 8.3 of the Merger Agreement. The Notice shall include an itemized
statement setting forth the calculation of the amount of the Escrow Shares
requested and a detailed statement of the basis of the alleged claim of loss
(it being understood that all conversions of dollars to WFM Merger Shares
shall be made at the Determination Price, regardless of the then fair market
value of any shares of WFM Common Stock). WFM or the Shareholders'
Representatives, as the case may be (the "Requesting
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Party"), shall send a copy of such Notice to the other (the "Receiving
Party") simultaneously and by the same means of transmission which the
Requesting Party provided the Notice to the Escrow Agent. If the Escrow Agent
does not receive a written objection from the Receiving Party to the Notice
prior to the 20th day following its receipt of the Notice, the Escrow Agent
shall disburse to the Requesting Party from the Escrow Shares the amount
provided in the Notice. If the Escrow Agent receives a written objection
from the Receiving Party to the Notice prior to the 20th day, the provisions
of Section 9 shall apply. No notice may be delivered to the Receiving Party
or the Escrow Agent nor may any previously delivered notice be revised after
the expiration of one year from the Effective Date.
(c) In the event of any disbursement of Escrow Shares to the FF
Shareholders pursuant to subparagraph (a) above, no fractional Escrow Shares
shall be delivered, but instead the Escrow Agent shall deliver cash in lieu
of a fractional Escrow Share. Subject to compliance with any applicable
federal or state securities laws, the Escrow Agent shall be authorized to
sell Escrow Shares for the purpose of making such payments. In the event of
any disbursement of Escrow Shares to WFM pursuant to subparagraph (b) above,
no fractional shares shall be delivered, but rather the Escrow Agent shall
adjust the amount of Escrow Shares to be delivered to WFM by rounding to the
nearest whole share.
(d) Subject to the provisions of Section 7 hereof, upon the
expiration of one year from the Effective Date, the Escrow Agent shall
disburse to the FF Shareholders' any and all remaining Escrow Shares.
6. ESCROW AGENT DUTIES. Without in any way limiting any other
provision of this Agreement, it is expressly understood and agreed that the
Escrow Agent shall be under no duty or obligation to give any notice, or to
do or to omit the doing of any action with respect to the Escrow Shares,
except to make disbursements in accordance with the terms of this Agreement.
The Escrow Agent shall not be liable for any error in judgment or any act or
steps taken or permitted to be taken in good faith, or for any mistake of law
or fact, or for anything it may do or refrain from doing in connection
herewith, except for its own willful misconduct or gross negligence. The
Escrow Agent shall not be required in any way to determine the validity or
sufficiency, whether in form or substance, of any instrument, document,
certificate, statement or notice referred to in this Agreement or
contemplated hereby, or the identity or authority of the persons executing
the same, and it shall be sufficient if any writing purporting to be such
instrument, document, certificate, statement or notice is delivered to the
Escrow Agent and purports to be correct in form and signed or otherwise
executed by the party or parties required to sign or execute the same under
this Agreement.
7. CONTROVERSY. In the event that a Receiving Party challenges the
nature, amount and validity of a Notice, such controversy shall be resolved
pursuant to the
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procedures set forth on Schedule I hereto, and Escrow Agent shall disburse
the Escrow Shares as appropriate in connection with the resolution of such
controversy. Should any other controversy arise between or among WFM and the
Shareholders' Representatives, or any other person, firm or entity, with
respect to this Agreement or the Escrow Shares, or the Escrow Agent should be
in doubt as to what action to take, the Escrow Agent shall have the right to
(a) withhold delivery of the Escrow Shares until the controversy is resolved,
the conflicting demands are withdrawn or the doubt is resolved, or (b)
institute a bill of interpleader in a court of applicable jurisdiction to
determine the rights of the parties hereto. Should a bill of interpleader be
instituted, or should the Escrow Agent be threatened with litigation or
become involved in litigation in any manner whatsoever on account of this
Agreement or the Escrow Shares, then as between themselves and the Escrow
Agent, WFM and the FF Shareholders will each pay to the Escrow Agent 50% of
the reasonable attorneys' fees and any other disbursements, expenses, losses
and damages in connection with or which results from the threatened or actual
litigation. The Escrow Agent shall deliver a written invoice of such fees to
WFM and the Shareholders' Representatives. The FF Shareholders' liability
for any such fees shall be in proportion to their percentage interests set
forth in EXHIBIT A hereto. The Shareholders' Representatives shall have the
option to elect to pay such fees on behalf of the FF Shareholders in cash
rather than through the transfer of Escrow Shares and to receive
reimbursement for such payment from the FF Shareholders in proportion to
their respective interests as set forth on EXHIBIT A hereto. Subject to
compliance with applicable federal or state securities laws, the
Shareholders' Representatives shall also have the right to sell Escrow Shares
for cash (or cause the Escrow Agent to sell Escrow Shares for cash) so that
the Shareholders' Representatives may pay such fees in cash.
8. INDEMNITY. WFM and the FF Shareholders (to the extent of the
Escrow Shares), jointly and severally, agree to indemnify the Escrow Agent
against and hold the Escrow Agent harmless from any and all losses, costs,
damages, expenses, claims and attorney's fees suffered or incurred by the
Escrow Agent as a result of, in connection with or arising from or out of the
acts or omissions of the Escrow Agent in performance of or pursuant to this
Agreement, except such acts or omissions as may result from the Escrow
Agent's willful misconduct or gross negligence. WFM shall be responsible for
the payment of the Escrow Agent's customary fees and expenses charged in
connection with the performance of its duties hereunder.
9. ESCROW AGENT TO FOLLOW INSTRUCTIONS OF WFM AND THE SHAREHOLDERS'
REPRESENTATIVES. Any provision herein to the contrary notwithstanding, the
Escrow Agent shall, at any time and from time to time, take such action
hereunder with respect to the Escrow Shares as shall be agreed to in writing
by WFM and the Shareholders' Representatives.
10. RESIGNATION. The Escrow Agent may resign upon ten (10) days' prior
written notice to WFM and the Shareholders' Representatives, and, upon joint
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instructions from WFM and the Shareholders' Representatives, shall deliver
the Escrow Shares to any designated substitute Escrow Agent selected by WFM
and the Shareholders' Representatives. If WFM and the Shareholders'
Representatives fail to designate a substitute Escrow Agent within ten (10)
days, the Escrow Agent may, at its sole discretion and its sole option,
institute a bill of interpleader as contemplated by Section 7 hereof.
11. TERMINATION. Upon delivery of the Escrow Shares as provided in
Section 5 or upon the institution of a bill of interpleader as provided in
Section 7 hereof, this Agreement shall terminate except for the provisions of
Section 8.
12. NOTICES. All notices, demands, requests or other communications
that may be or are required to be given, served or sent by any party to any
other party pursuant to this Agreement shall be in writing (and shall be
deemed to have been duly given upon receipt) and shall be mailed by
first-class, registered or certified mail, return receipt requested, postage
prepaid, or transmitted by hand delivery or facsimile transmission, addressed
as follows:
(i) If to WFM:
601 North Lamar Blvd., Suite 300
Austin, Texas 78703
Attention: John Mackey, Chairman and CEO
Facsimile: 512-477-1301
with a copy (which shall not constitute notice)
to:
Crouch & Hallett, L.L.P.
717 North Harwood Street
Suite 1400
Dallas, Texas 75201
Attention: Bruce H. Hallett
Facsimile: 214-953-3154
(ii) If to Shareholders' Representatives:
[to come]
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with a copy (which shall not constitute notice)
to:
Fried, Frank, Harris, Shriver & Jacobson
1001 Pennsylvania Avenue, N.W., Suite 800
Washington, D.C. 20004-2505
Attention: Richard A. Steinwurtzel
Facsimile: 202-639-7003
(iii) If to Escrow Agent:
[to come]
Each party may designate by notice in writing a new address to which any
notice, demand, request or communication may thereafter be so given, served
or sent. Each notice, demand, request or communication that is mailed,
delivered or transmitted in the manner described above shall be deemed
sufficiently given, served, sent and received for all purposes at such time
as it is delivered to the addressee (with the return receipt, the delivery
receipt or the affidavit of messenger being deemed conclusive evidence of
such delivery) or at such time as delivery is refused by the addressee upon
presentation.
13. CHOICE OF LAWS; CUMULATIVE RIGHTS. This Agreement
shall be construed under the laws of the State of Delaware (irrespective of
its choice of law principles). Notwithstanding the foregoing, the Federal
Rules of Evidence and Federal Rules of Civil Procedure shall control
controversies under this Agreement that are subject to arbitration as set
forth in Section 7 and Schedule 1 hereto. All of the Escrow Agent's rights
hereunder are cumulative of any other rights it may have by law or otherwise.
14. SEVERABILITY. If one or more of the provisions
contained herein shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions hereof, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
15. CAPTIONS. The captions in this Agreement are for
convenience of reference only and shall not limit or otherwise affect any of
the terms or provisions hereof.
16. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute only one
original. This
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Agreement shall become binding when one or more counterparts hereof,
individually or taken together, shall bear the signatures of all of the
parties reflected hereon as signatories.
17. ENTIRE AGREEMENT. This Agreement, the Merger Agreement
and any other documents executed or delivered pursuant to this Agreement or
the Merger Agreement, contain the complete agreement among the parties with
respect to the transactions contemplated hereby and supersede all prior
agreements and understandings, whether oral or written, among the parties
with respect to such transactions. To the extent that the provisions of the
Merger Agreement may be inconsistent with the provisions of this Agreement,
the Merger Agreement will control.
18. AMENDMENT. This Agreement may be amended only by a
written instrument signed by the party against which enforcement of any
waiver, change, modification, extension or discharge is sought.
19. BENEFIT AND ASSIGNMENT. The rights and obligations of
each party under this Agreement may not be assigned without the prior written
consent of all other parties. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
20. NO PERSONAL LIABILITY OF THE SHAREHOLDERS'
REPRESENTATIVES. Notwithstanding any provision to the contrary hereunder,
the Shareholders' Representatives shall have no personal liability in
connection with, or related to, this Agreement (including Schedule I hereto).
21. CERTAIN WAIVERS. In any proceedings by WFM or Merger
Corp. to assert or prosecute any claim hereunder, the Shareholders'
Representatives agree that they shall not assert as a defense or bar to
recovery by the Surviving Corporation against the Escrow Shares and hereby
waive any right so to assert such defense or bar such recovery, that (a)
before the date of this Agreement FF (as opposed to WFM and Merger Corp.) had
knowledge of the circumstances giving rise to the claim being pursued by it;
(b) before the date of this Agreement FF engaged in conduct or took action
that caused or brought about the circumstances giving rise to its claim or
otherwise contributed thereto; (c) the Surviving Corporation is estopped from
asserting or recovering upon its claim by reason of having made the
representations, warranties, and covenants made by FF in the Merger
Agreement; or (d) the Shareholders' Representatives or the former
stockholders of FF have a right of contribution from or indemnification by
the Surviving Corporation to the extent that there is any recovery pursuant
to the indemnification provisions of said Section 8.3. The Shareholders'
Representatives in their capacity as such and not in their capacity as FF
Shareholders further agree that they shall not under any circumstances
whatsoever affirmatively seek any contribution from or indemnification
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by the Surviving Corporation for any losses, damages, expenses or other
claims, regardless of form, suffered by any of them arising out of, related
to or in connection with this Agreement, the Merger Agreement or any other
agreement contemplated hereby or any transaction contemplated hereby or
thereby, except to the extent such claim arises out of the gross negligence
or willful misconduct of the Surviving Corporation, or the breach by the
Surviving Corporation of its obligations under this Agreement or the Merger
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
WHOLE FOODS MARKET, INC.
By:
-----------------------------------------
Its:
----------------------------------------
--------------------------------------------
[Shareholders' Representatives], in their capacity
as attorneys-in-fact for the FF Shareholders
Texas Commerce Bank, N.A.
By:
-----------------------------------------
Its:
----------------------------------------
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Schedule I
Procedure for Resolving Disputes
1. Any dispute, disagreement or other question arising from this
Agreement or the interpretation thereof shall be settled by arbitration in
accordance with the commercial rules then in effect of the American
Arbitration Association, except as modified in this paragraph and, except
that the arbitrator(s) shall be selected in accordance with the following
procedure: such dispute, disagreement or other question shall be referred to
and decided by a single arbitrator if the parties can agree upon one within
15 days after the Receiving Party challenges a Notice; otherwise, such
dispute, disagreement or other question shall be referred to and decided by
three arbitrators, one to be appointed by WFM and one to be appointed by the
Shareholders' Representatives, each such appointment to be made within ten
(10) days after the expiration of the 15 day period referred to above, and
the third arbitrator to be appointed by the first two arbitrators within 10
days after the expiration of such 10 day period. If the first two
arbitrators cannot reach agreement on the third arbitrator within said 10 day
period, the third arbitrator shall be an impartial arbitrator appointed by
the President of the American Arbitration Association within 20 days after
the expiration of said ten (10) day period. Hearings of the arbitrator shall
be held in the City of Wilmington, Delaware, unless the parties agree
otherwise. The presentations of the parties in the arbitration proceeding
shall be commenced and completed within 60 days after selection of the
arbitration panel, and the arbitration panel shall render its decision in
writing within 30 days after completion of such presentations. Any decision
concurred in by any two of the arbitrators shall constitute the decision of
the arbitration panel, and unanimity shall not be required. The arbitration
shall be conducted in accordance with the Federal Rules of Evidence and the
Federal Rules of Civil Procedure. The arbitration award shall be in writing
and shall contain findings of fact and conclusions of law to support the
award. Judgment upon an award rendered by the arbitrator(s) may be entered
in any court of competent jurisdiction, including courts in the States of New
York and Texas. Any award so rendered shall be final and binding upon the
parties hereto. All costs and expenses of the arbitrator(s) shall be paid as
determined by such arbitrator(s), and all costs and expenses of experts,
witnesses and other persons retained by the parties shall be borne by them
respectively.
2. If WFM's Notice relates to any third party action, suit or
proceeding brought against WFM or FF with respect to matters for which an
indemnification claim may be made under said Section 8.3, and such matter is
in dispute as provided in paragraph 1 above, the following procedures shall
be applicable pending the resolution of the dispute:
(i) Such action, suit or proceeding shall be defended by WFM (using
such firm of attorneys as is reasonably acceptable to the Shareholders'
Representatives); provided, however, that WFM hereby consents to the
continued representation of FF by the firm of Blankenship & Keith in
connection with the Dwoskin Litigation (as defined in the Merger
Agreement). The Shareholders' Representatives shall be kept fully informed
of such action, suit or proceeding at all stages thereof;
(ii) The Shareholders' Representatives or WFM, whichever is not
controlling the defense of any matter, shall be entitled, at its or their
expense, to participate in such defense;
(iii) WFM shall make available to the Shareholders'
Representatives and its attorneys and accountants all books and records of
WFM relating to such proceedings or litigation and the parties hereto agree
to render to each other such assistance as they may reasonably require of
each other in order to ensure the proper and adequate defense of any such
action, suit or proceeding;
(iv) WFM shall not make any settlement of any claims without the
written consent of the Shareholders' Representatives; and
(v) WFM shall use its reasonable best efforts to mitigate the amount
of damages and losses it incurs in connection with any such claim.
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