KONINKLIJKE AHOLD N.V.
Common Shares
Underwriting Agreement
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Ladies and Gentlemen:
1. Introductory. Koninklijke Ahold N.V. (Royal Ahold), a public
company with limited liability organized under the laws of The Netherlands, and
with its corporate seat in Zaandam (municipality Zaanstad), The Netherlands (the
"Company"), proposes to issue and sell from time to time common shares, par
value NLG 0.50 per share, of the Company (the "Common Shares").
Particular issuances of Common Shares will be sold pursuant to a Terms
Agreement referred to in Section 3 in the form of Annex A attached hereto, for
resale in accordance with the terms of offering determined at the time of sale.
Under such Terms Agreement, subject to the terms and conditions hereof, the
Company will agree to issue and sell, and the firm or firms specified therein
(the "Underwriters") will agree to purchase, severally, the number of Common
Shares specified therein (the "Firm Shares"). In such Terms Agreement, the
Company also may grant to such Underwriters, subject to the terms and conditions
set forth therein, an option to purchase additional Common Shares in an amount
not to exceed the amount specified in such Terms Agreement (such additional
Common Shares are hereinafter referred to as the "Option Shares"). The Firm
Shares and the Option Shares are hereinafter collectively referred to as the
"Offered Shares." The Firm Shares and the Option Shares are registered pursuant
to the registration statement referred to in Section 2(a).
Pursuant to the Terms Agreement referred to in Section 3, the
Underwriters may have the right to elect to take delivery of the Offered Shares
in the form of Common Shares or in the form of American Depositary Shares (the
"ADSs"). The ADSs are to be issued pursuant to an amended and restated deposit
agreement specified in the Terms Agreement (the "Deposit Agreement"), among the
Company, the depositary specified in the Terms Agreement (the "Depositary"), and
the registered holders from time to time of the American Depositary Receipts
(the "ADRs") issued by the Depositary and evidencing the ADSs. Each ADS will
initially represent the right to receive one Common Share deposited pursuant to
the Deposit Agreement. Except as the context may otherwise require, references
hereinafter to Common Shares or Offered Shares shall include all of the Common
Shares or Offered Shares, as the case may be, whether in the form of Common
Shares or ADSs.
The representative or representatives of the Underwriters, if any,
specified in a Terms Agreement referred to in Section 3 are hereinafter referred
to as the "Representatives"; provided, however, that if the Terms Agreement does
not specify any representative of the Underwriters, the term "Representatives",
as used in this Agreement (other than in the second sentence of Section 3) shall
mean the Underwriters.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement on Forms F-3 and S-3 (Nos. 333-71383 and
333-71383-01), including a prospectus relating to the Offered Shares, has
been filed with the Securities and Exchange Commission (the "Commission")
and has been declared effective by the Commission. The various parts of
such registration statement, as amended at the time of the execution of the
Terms Agreement referred to in Section 3, including all exhibits thereto
(but excluding the Trustees' Statement of Eligibility on Form T-1) and the
documents incorporated by reference in the prospectus contained in such
registration statement at the time of execution of the Terms Agreement
referred to in Section 3, are hereinafter collectively referred to as the
"Registration Statement"; any prospectus included in the Registration
Statement at the time it became effective or in any post-effective
amendment thereto filed prior to the time of execution of the Terms
Agreement referred to in Section 3 at the time such amendment became
effective or filed with the Commission pursuant to and in accordance with
Rule 424(b) ("Rule 424(b)") of the rules and regulations of the Commission
(the "Rules and Regulations") under the Securities Act of 1933, as amended
(the "Act"), prior to the time of the execution of the Terms Agreement
referred to in Section 3, as supplemented by a preliminary prospectus
supplement reflecting the proposed terms of the offering of the Offered
Shares that is filed with the Commission pursuant to and in accordance with
Rule 424(b) prior to the time of the execution of the Terms Agreement
referred to in Section 3, including all material incorporated therein by
reference, is hereinafter referred to as a "Preliminary Prospectus", and
the prospectus included in the Registration Statement, as supplemented by a
prospectus supplement as contemplated by Section 3 to reflect the terms of
the offering of the Offered Shares, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) including all material
incorporated by reference therein, is hereinafter referred to as the
"Prospectus". Any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference in
such Prospectus or Preliminary Prospectus, as the case may be. No stop
order suspending the effectiveness of the Registration Statement or
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Company, threatened by the
Commission.
(b) The Registration Statement relating to the Offered Shares, on the
effective date thereof, and any Preliminary Prospectus, as of its date,
conformed in all material respects to the requirements of the Act and the
Rules and Regulations and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and the
Registration Statement and the Prospectus, on the date of the Terms
Agreement referred to in Section 3, will conform in all material respects
to the requirements of the Act and the Rules and Regulations, and neither
of such documents will include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein (in the case of the Prospectus, in light of
the circumstances under which they were made) not misleading, except that
the foregoing representations do not apply to statements in or omissions
from any of such documents based upon written information furnished to the
Company by any Underwriter specifically for use therein.
(c) The documents incorporated by reference into the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the rules and regulations
thereunder, and none of such documents when so filed included any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, and each document, if any, hereafter filed and so incorporated
by reference in the Prospectus and any further amendment or supplement
thereto (other than documents incorporated by reference therein relating
solely to an offering of securities other than the Offered Shares) when
such documents are filed with the Commission will conform in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, except that the foregoing representations do not apply to
statements in or omissions from any of such documents based upon written
information furnished to the Company by any Underwriter specifically for
use therein.
(d) A Registration Statement on Form F-6 (No. 333- ) in respect of the
ADSs has been filed with the Commission and has been declared effective by
the Commission; no stop order suspending the effectiveness of such
Registration Statement has been issued and no proceeding for that purpose
has been initiated or, to the knowledge of the Company, threatened by the
Commission (the various parts of such Registration Statement, including all
exhibits thereto, each as amended at the time of the Terms Agreement
referred to in Section 3, being hereinafter called the "ADS Registration
Statement"); such Registration Statement when it became effective
conformed, and any further amendment thereto when it becomes effective will
conform, in all material respects to the requirements of the Act and the
Rules and Regulations; such Registration Statement when it became effective
did not, and any further amendment thereto when it becomes effective will
not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and, on the date of any Terms Agreement
referred to in Section 3, the ADS Registration Statement will conform in
all material respects to the requirements of the Act and the Rules and
Regulations and it will not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
(e) Neither the Company nor any of the Significant Subsidiaries (as
defined below) has sustained since the date of the latest audited financial
statements included in the Prospectus or incorporated by reference therein,
any loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, in either case
material to the Company and its subsidiaries taken as a whole, and
otherwise than as set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the capital
stock or consolidated long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
financial position, shareholders' equity or results of operations of the
Company and its subsidiaries taken as a whole or the officers and directors
of the Company, otherwise than as set forth or contemplated in the
Prospectus. As used in this Agreement, the term "Significant Subsidiary"
refers to ▇▇▇▇▇▇ ▇▇▇▇▇ B.V., BI-LO Inc., Giant Food Stores, Inc., Ahold
Vastgoed B.V., Tops Markets, Inc., The Stop & Shop Companies, Inc and Giant
Food Inc.
(f) The Company has been duly incorporated and is validly existing
under the laws of The Netherlands as a legal entity in the form of a
"naamloze vennootschap" (a public company with limited liability), with
corporate power and corporate authority to own or lease its properties and
conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and is
in good standing (where applicable) under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business
so as to require such qualification, or is subject to no material liability
or disability by reason of the failure to be so qualified in any such
jurisdiction; and each Significant Subsidiary has been duly incorporated
and is validly existing as a corporation in good standing (where
applicable) under the laws of its jurisdiction of incorporation.
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, and are fully paid and
non-assessable and conform to the description of the capital stock
contained in the Prospectus; and all of the issued shares of capital stock
of each Significant Subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims; all of the issued and outstanding Shares have been duly
listed and admitted for trading subject to notice of issuance on the
AEX-Stock Exchange ("AEX") and the Swiss Exchange ("SE") and the ADSs have
been duly listed and admitted for trading on the New York Stock Exchange,
Inc. ("NYSE"); the holders of outstanding shares of capital stock of the
Company are not entitled to preemptive or other rights to acquire the
Offered Shares, such rights having been excluded by resolution of the
Corporate Executive Board which has been approved by the Supervisory Board
in accordance with the Articles of Association of the Company, the
Corporate Executive Board being entitled to exclude such rights with
respect to Common Shares by authorization of the general meeting of
shareholders; there are no outstanding securities convertible into or
exchangeable for, or warrants, rights or options to purchase from the
Company, or obligations of the Company to issue, Common Shares or any other
class of capital stock of the Company, except as set forth in the
Prospectus; the Offered Shares may be freely deposited by the Company with
the Depositary against issuance of ADRs evidencing ADSs; the ADSs are
freely transferable by the Company to or for the account of the several
Underwriters and (to the extent described in the Prospectus) the initial
purchasers thereof; and there are no restrictions on subsequent transfers
of the Offered Shares under the laws of The Netherlands and the United
States except as described in the Prospectus under "Description of American
Depositary Receipts."
(h) The unissued Offered Shares to be issued and sold by the Company
to the Underwriters under the Terms Agreement referred to in Section 3 have
been duly and validly authorized and, when the Offered Shares are issued
and delivered pursuant to such Terms Agreement against payment therefor as
provided therein, will be duly and validly issued and fully paid and
non-assessable and will conform to the description of the Offered Shares
contained in the Prospectus.
(i) The Deposit Agreement has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
delivery by the Depositary, constitutes a valid and legally binding
agreement of the Company, enforceable in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency, reorganization
and similar laws of general applicability relating to or affecting
creditors' rights and to general principles of equity; upon issuance by the
Depositary of ADRs evidencing ADSs and the deposit of Common Shares in
respect thereof in accordance with the provisions of the Deposit Agreement,
such ADRs will be duly and validly issued and the persons in whose names
the ADRs are registered will be entitled to the rights specified therein
and in the Deposit Agreement; and the Deposit Agreement and the ADRs
conform in all material respects to the descriptions thereof contained in
the Prospectus.
(j) All dividends and other distributions declared and payable on the
shares of capital stock of the Company may under the current laws and
regulations of The Netherlands be paid to the Depositary in Dutch Guilders
and may be converted into foreign currency that may be freely transferred
out of The Netherlands without the necessity of obtaining any consents,
approvals, authorizations, orders, registrations, clearances and
qualification of or with any court or governmental agency or body or
authorities of any exchange on which the Shares or ADSs are listed and
admitted for trading (hereinafter referred to as a "Governmental Agency")
having jurisdiction over the Company or any of its subsidiaries or any of
their properties (hereinafter referred to as "Governmental Authorizations")
in The Netherlands except as otherwise set forth in the Prospectus.
(k) The issue and sale of the Shares to be sold by the Company under
the Terms Agreement referred to in Section 3 and the deposit of the Common
Shares with the Depositary against issuance of the ADRs evidencing the ADSs
and the compliance by the Company with all of the provisions of this
Agreement, such Terms Agreement and the Deposit Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of the Significant Subsidiaries is a party or by
which the Company or any of the Significant Subsidiaries is bound or to
which any of the property or assets of the Company or any of the
Significant Subsidiaries is subject, nor will such action result in any
violation of the provisions of the Articles of Association of the Company
or any statute or any order, rule or regulation of any Governmental Agency
having jurisdiction over the Company or any of the Significant Subsidiaries
or any of their properties; and no Governmental Authorizations are required
for the issue and sale of the Offered Shares, for the deposit of the Common
Shares with the Depositary against issuance of ADRs evidencing the ADSs to
be delivered or the consummation by the Company of the transactions
contemplated by this Agreement and the Terms Agreement referred to in
Section 3, except (A) the registration under the Act of the Shares and the
ADSs, (B) the listing of the Shares on the AEX and the SE and of the ADSs
on the NYSE, (C) such Governmental Authorizations as have been duly
obtained and are in full force and effect and copies of which have been
furnished to you and (D) such Governmental Authorizations as may be
required under state securities or Blue Sky laws or any laws of
jurisdictions outside The Netherlands and the United States in connection
with the purchase and distribution of the Offered Shares by or for the
account of the Underwriters.
(l) No stamp or other issuance or transfer taxes or duties are payable
by or on behalf of the Underwriters to The Netherlands or any political
subdivision or taxing authority thereof or therein in connection with (A)
the deposit with the Depositary of Common Shares by the Company against the
issuance of ADRs evidencing ADSs, (B) the sale and delivery by the Company
of the Offered Shares to or for the respective accounts of the Underwriters
or (C) the sale and delivery outside The Netherlands by the Underwriters of
the Offered Shares to the initial purchasers thereof, in each case in the
manner contemplated in this Agreement and the Terms Agreement.
(m) No capital gains, income or withholding taxes are payable by or on
behalf of the Underwriters to The Netherlands or to any political
subdivision or taxing authority thereof or therein in connection with (x)
the deposit with the Depositary of Common Shares by the Company against the
issuance of ADRs evidencing ADSs, (y) the sale and delivery by the Company
of the Offered Shares to or for the respective accounts of the Underwriters
or (z) the sale and delivery outside The Netherlands by the Underwriters of
the Offered Shares to the initial purchasers thereof in the manner
contemplated in this Agreement and the Terms Agreement, provided that: (1)
the Underwriter is not a resident or deemed resident of The Netherlands;
(2) the Underwriter does not have an enterprise which in its entirety or in
part carries on business in The Netherlands through a permanent
establishment or permanent representative to which or to whom the Shares or
ADSs are attributable, or to which or to whom the Shares or ADSs belong;
and (3) the Underwriter does not and will not, as a result of the
transactions referred to in clauses (x), (y) and/or (z) referred to above,
have a substantial interest or deemed substantial interest as defined in
Article 20a of the Dutch Income Tax Act in the share capital of the Company
or, in the event that there is such an interest, such interest belongs to
the business of an enterprise.
(n) Neither the Company nor any of its majority-owned subsidiaries has
taken, directly or indirectly, any action which was designed to or which
has constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Offered Shares; provided, however,
that this provision shall not apply to stabilization or other activities
conducted by the Underwriters or on their behalf, as described in the
Prospectus.
(o) The statements set forth in the Prospectus under the captions
"Description of Share Capital" and "Description of American Depositary
Receipts", insofar as they purport to constitute a summary of the terms of
the capital stock of the Company and the ADSs, respectively, and under the
caption "Taxation--U.S. Taxation", insofar as they purport to describe the
provisions of the laws referred to therein or to provisions of documents
therein described, are accurate, complete and fair in all material
respects.
(p) The statements set forth in the Prospectus under the caption
"Taxation--Netherlands Taxation" insofar as they relate to matters of Dutch
tax law or regulation or to provisions of documents therein described, are
true and accurate in all material respects.
(q) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of the
Significant Subsidiaries is a party or of which any property of the Company
or any of the Significant Subsidiaries is the subject which are reasonably
likely, individually or in the aggregate, to have a material adverse effect
on the current or future consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries taken
as a whole; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by any Governmental Agency or
threatened by others.
(r) The Company is not and, after giving effect to the offering and
sale of the Offered Shares, will not be an "investment company" or an
entity "controlled" by an "investment company", as such terms are defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act").
(s) The Company and each of the Significant Subsidiaries have all
licenses, franchises, permits, authorizations, approvals and orders and
other concessions of and from all Governmental Agencies that are necessary
to own or lease their properties and conduct their businesses as described
in the Prospectus except for such licenses, franchises, permits,
authorizations, approvals and orders the failure to obtain which
individually or in the aggregate, will not have a material adverse effect
on the general affairs, consolidated financial position or results of
operation of the Company and its subsidiaries taken as a whole.
(t) The Company is not a Passive Foreign Investment Company ("PFIC")
within the meaning of Section 1297 of the United States Internal Revenue
Code of 1986, as amended.
(u) Deloitte & Touche, Registeraccountants, who have certified certain
financial statements of the Company and its subsidiaries, are independent
public accountants as required by the Act and the Rules and Regulations.
3. Purchase and Offering of Firm Shares. The obligation of the Company
to issue and sell any Firm Shares, the obligation of the Underwriters to
purchase the Firm Shares, and, if applicable, the Company's granting to the
Underwriters of an option to purchase any Option Shares, will be set forth in a
Terms Agreement (the "Terms Agreement") which shall be in the form of an
executed writing (which may be handwritten), and may be evidenced by an exchange
of telegraphic or any other rapid transmission device designed to produce a
written record of communications transmitted at the time the Company determines
to sell the Firm Shares. The Terms Agreement will incorporate by reference the
provisions of this Agreement, except as otherwise provided therein, and will
specify the following: the firm or firms which will be Underwriters; the names
of any Representatives; the aggregate amount of the Firm Shares, and, if
applicable, the Option Shares; the terms of any option granted by the Company to
the Underwriters to purchase Option Shares; the amount of Firm Shares to be
purchased by each Underwriter; the initial public offering price of the Offered
Shares; the purchase price to be paid by the Underwriters; and whether the
Underwriters have the right to take delivery of the Offered Shares in the form
of ADSs and, if so, the terms for exercise thereof. The Terms Agreement will
also specify the place of delivery and payment for the Offered Shares and any
details of the terms of offering that should be reflected in the prospectus
supplement relating to the offering of the Offered Shares.
The time and date of delivery and payment of the Firm Shares will be
the time and date specified in the Terms Agreement, or such other time not later
than seven full business days thereafter as the Representatives and the Company
agree as the time for payment and delivery of the Firm Shares (such time and
date, being herein and in the Terms Agreement referred to as the "Firm Closing
Date"). The time and date of delivery and payment of some or all of the Option
Shares, if any, will be the time and date specified by the Underwriters as
provided in the Terms Agreement, which may be the Firm Closing Date, but shall
not be more than seven business days after the exercise of the option nor in any
event prior to the Firm Closing Date (such time and date being herein and in the
Terms Agreement referred to as the "Option Closing Date"). As used herein and in
the Terms Agreement, the term "Closing Date" means, with respect to the Firm
Shares, the Firm Closing Date and, with respect to the Option Shares, the Option
Closing Date.
The obligations of the Underwriters to purchase the Offered Shares
will be several and not joint. It is understood that the Underwriters propose to
offer the Offered Shares for sale as set forth in the Prospectus. The Offered
Shares delivered to the Underwriters on the Closing Date will be issued by
book-entry credit to the account or accounts in a qualified institution as
specified by the Representatives or, if pursuant to the Terms Agreement the
Underwriters have the right to elect to take delivery of the Offered Shares in
the form of ADSs and the Representatives have exercised such right as provided
in the Terms Agreement, then the relevant ADSs will be in definitive form and
will be in such denominations and registered in such names as the Underwriters
may request.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to ________________, counsel for the
Underwriters, one copy of the Registration Statement relating to the Shares and
one copy of the ADS Registration Statement, in each case including all exhibits,
in the form in which each became effective and of all amendments thereto and
that, in connection with each offering of Offered Shares:
(a) The Company will prepare the Prospectus in a form approved by the
Representatives and will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following
execution and delivery of the Terms Agreement referred to in Section 3 and
will make no further amendment to the Registration Statement or amendment
or supplement to the Prospectus (other than those relating solely to an
offering of securities other than the Offered Securities) prior to the Firm
Closing Date or, if later, the Option Closing Date which in any case shall
be disapproved by the Representatives promptly after reasonable notice
thereof.
(b) During the time when a prospectus relating to the Offered Shares
is required to be delivered under the Act, (i) the Company will advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed (other than those relating solely to an offering of securities
other than the Offered Securities) and furnish the Representatives copies
thereof; (ii) the Company will file promptly all reports required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c),
14(d) or 15(d) of the Exchange Act subsequent to the date of the
Prospectus; (iii) the Company will advise the Representatives promptly of
any request by the Commission for the amending or supplementing of the
Registration Statement or of any part thereof or for additional information
(other than solely in respect of an offering of securities other than the
Offered Shares), and will advise the Representatives promptly of the
institution by the Commission of any stop order proceedings in respect of
the Registration Statement or of any part thereof and will use its best
efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued; and (iv) the Company will advise
the Representatives promptly of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Offered Shares for sale in any jurisdiction or the initiation or threat of
any proceeding for such purpose.
(c) If, at any time when a prospectus relating to the Offered Shares
is required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or if for any other reason it is necessary at any time to amend
or supplement the Prospectus or to file under the Exchange Act any document
to be incorporated by reference in the Prospectus in order to comply with
the Act or the Exchange Act, the Company promptly will notify the
Representatives and at the Representatives' request file such document and
prepare and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus, or the document that will be filed under the Exchange Act so as
to be incorporated by reference in the Prospectus, which will correct such
statement or omission or effect such compliance, provided, that in case any
Underwriter is required to deliver a prospectus in connection with sales of
any of the Offered Shares or ADSs at any time nine months or more after the
time of issue of the Prospectus, upon the Representatives' request but at
the expense of such Underwriter, the Company promptly will prepare and
deliver to such Underwriter as many copies as the Representatives may
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act. Neither the Representatives' consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(d) If necessary, the Company will promptly from time to time take
such action as the Representatives may reasonably request to qualify the
Offered Shares for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with such
laws as to permit the continuance of sales and dealings therein in such
jurisdictions for so long as may be necessary to complete the distribution
of the Offered Shares, provided that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to file a
general or unlimited consent to process in any jurisdiction.
(e) The Company will make generally available to its security holders
as soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Act and the Rules and Regulations (including, at the option of the
Company, Rule 158 under the Act).
(f) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any Preliminary Prospectus
and the Prospectus and during the time when a prospectus relating to the
Offered Shares is required to be delivered under the Act, all amendments
and supplements to such documents (other than those solely relating to an
offering of securities other than the Offered Shares), in each case as soon
as available and in such quantities as are reasonably requested.
(g) The Company will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Company's counsel and accountants
in connection with the registration of the Shares and the ADSs under the
Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, the ADS Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing any Agreement among
Underwriters, any Selling Agreements, this Agreement, any Terms Agreement,
the Deposit Agreement, any Blue Sky Memorandum and any other documents in
connection with the offering, purchase, sale and delivery of the Offered
Shares; (iii) if applicable, all reasonable expenses in connection with the
qualification of the Offered Shares for offering and sale under state
securities laws, including the reasonable fees and disbursements of counsel
for the Underwriters in connection with any Blue Sky Memorandum; (iv) any
filing fees incident to, and the reasonable fees and disbursements of
counsel for the Underwriters in connection with, any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale
of the Offered Shares; (v) the cost of preparing the Offered Shares; (vi)
the fees and expenses in connection with the listing of the Offered Shares
on the AEX, the SE and any stock exchange on which the Shares are listed
and the ADSs on the NYSE; (vii) the fees and expenses of any transfer agent
relating to the Offered Shares; (viii) the fees and expenses (including
fees and disbursements of counsel), if any, of the Depositary and any
custodian appointed under the Deposit Agreement, other than the fees and
expenses to be paid by holders of ADSs (other than the Underwriters in
connection with the initial purchase of ADSs, if any, pursuant to a Terms
Agreement referred to in Section 3); (ix) the fees and expenses of the
Authorized Agent (as defined in Section 12); (x) except as provided below,
all stamp or transfer taxes, if any, arising as a result of the deposit by
the Company of the Common Shares with the Depositary, if applicable, and
the issuance and delivery of the ADRs evidencing ADSs in exchange therefor
by the Depositary to the Company, of the sale and delivery of the Offered
Shares by the Company to or for the account of the Underwriters and by the
Underwriters to each other and to or for the account of the initial
purchasers thereof in the manner contemplated hereunder; and (xi) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section;
provided, however, that, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, travel expenses,
transfer taxes (other than any imposed by The Netherlands or any political
subdivision or taxing authority thereof or therein) on resale of any of the
Offered Shares by them and any advertising expenses incurred in connection
with the transactions contemplated hereby.
(h) If and to the extent so provided in the Terms Agreement referred
to in Section 3, the Company, for the period therein provided, will not,
directly or indirectly, sell, contract to sell or otherwise dispose of
certain of its securities as specified in such Terms Agreement.
(i) To the extent required by applicable law, to make available to its
shareholders as soon as practicable after the end of each fiscal year an
annual report (in English) (including a balance sheet and statements of
income, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries certified by independent public accountants and
prepared in conformity with generally accepted accounting principles in The
Netherlands ("Dutch GAAP"), together with a reconciliation of net income
and total stockholders' equity to generally accepted accounting principles
in the U.S. and, as soon as practicable after the end of each of the first
three quarters of each fiscal year (beginning with the fiscal quarter
ending after the Firm Closing Date), consolidated summary financial
information of the Company and its consolidated subsidiaries for such
quarter in reasonable detail prepared in accordance with Dutch GAAP.
(j) To use the net proceeds received by it from the sale of the
Offered Shares pursuant to this Agreement and the Terms Agreement referred
to in Section 3 in the manner specified in the Prospectus under the caption
"Use of Proceeds."
(k) If the Underwriters have the right under the Terms Agreement
referred to in Section 3 to take delivery of the Offered Shares in the form
of Shares or ADSs and if they have elected to take delivery of some or all
of the Offered Shares in the form of ADSs, prior to the relevant Closing
Date, the Company will deposit the relevant Common Shares with the
Depositary in accordance with the provisions of the Deposit Agreement and
otherwise will comply with the Deposit Agreement so that ADRs evidencing
the requisite number of ADSs will be executed (and, if applicable,
countersigned) and issued by the Depositary against receipt of such Common
Shares and delivered to the Underwriters on the Closing Date.
(l) Until 30 days after the Firm Closing Date, the Company will not
take (and will cause its subsidiaries not to take), directly or indirectly,
any action which is designed to or which constitutes or which might
reasonably be expected to cause or result in stabilization or manipulation
of the price of the Shares.
(m) The Company will use its reasonable best efforts to list, subject
to notice of issuance, the Shares on the AEX, and the SE and, if
applicable, the ADSs on the NYSE.
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Shares on the Firm
Closing Date and the Option Shares on the Option Closing Date will be subject,
in their discretion, to the truth and accuracy of the representations and
warranties on the part of the Company herein at and as of the applicable Closing
Date, to the truth and accuracy of the written statements of Company officers
made pursuant to the provisions hereof at and as of the applicable Closing Date,
to the performance by the Company of its obligations hereunder and to the
following additional conditions precedent:
(a) The Representatives shall have received a letter, dated the
applicable Closing Date, of Deloitte & Touche, Registeraccountants, in form
and substance satisfactory to the Representatives, to the effect set forth
in Annex B hereto.
(b) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) of the Act within the applicable time period prescribed for
such filing by the Rules and Regulations and in accordance with Section
4(a) of this Agreement. No stop order suspending the effectiveness of the
Registration Statement or the ADS Registration Statement or of any part
thereof shall have been issued and no proceedings for that purpose shall
have been instituted or shall have been threatened by the Commission. All
requests for additional information on the part of the Commission shall
have been complied with to the Representatives' reasonable satisfaction.
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any downgrading in the rating of any debt securities
of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) of the Rules and
Regulations), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of the
Company, with possible negative implications; (ii) any suspension for more
than two hours or material limitation in trading in securities generally on
the NYSE or the AEX; (iii) any suspension for more than two hours or
material limitation in trading in the Company's securities on the NYSE or
the AEX; (iv) any general moratorium on commercial banking activities in
New York or Amsterdam declared by the relevant authorities; (v) a change or
development involving a prospective change in Dutch taxation affecting the
Company, the Shares or the ADSs or the transfer thereof or the imposition
of exchange controls by the United States or The Netherlands, or any
outbreak or escalation of hostilities in which the United States or The
Netherlands is involved, any declaration of war or a national emergency by
the United States or The Netherlands, if the effect of any such event
specified in this clause (v) in the judgment of the Representatives, makes
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Offered Shares being delivered at the relevant Closing Date
on the terms and in the manner contemplated in the Prospectus; or (vi) the
occurrence of any material adverse change in the existing financial,
political or economic conditions in the United States, The Netherlands or
elsewhere which, in the judgment of the Representatives, would materially
and adversely affect the financial markets or the market for the Offered
Shares and other equity securities.
(d) (i) Neither the Company nor any of the Significant Subsidiaries
shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have been
any change in the capital stock or consolidated long-term debt of the
Company or any change, or any development involving a prospective change,
in or affecting the general affairs, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries taken
as a whole or the officers and directors of the Company, otherwise than as
set forth or contemplated in the Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is in the judgment of the
Representatives, after consultation with the Company if practicable, so
material and adverse to the Company and its subsidiaries taken as a whole
as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Offered Shares being delivered at the
Closing Date on the terms and in the manner contemplated in the Prospectus.
(e) The Representatives shall have received an opinion, dated the
relevant Closing Date, of White & Case LLP, counsel for the Company, to the
effect that:
(i) If the Representatives elect pursuant to the Terms Agreement
to take delivery of some or all of the Offered Shares in the form of
ADSs, assuming (x) due authorization, execution and delivery by the
Company under Dutch law of the Deposit Agreement, (y) due
authorization, execution and delivery of the Deposit Agreement by the
Depositary and (z) that each of the Depositary and (under Dutch law)
the Company has full power, authority and legal right to enter into
and perform its obligations thereunder, the Deposit Agreement
constitutes a valid and legally binding agreement of the Company,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization and other similar laws relating to or
affecting creditors' rights generally and to general principles of
equity (regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law);
(ii) If the Representatives elect pursuant to the Terms Agreement
to take delivery of some or all of the Offered Shares in the form of
ADSs, upon due issuance by the Depositary of a master ADR (the "Master
ADR") evidencing ADSs being delivered on the Closing Date against the
deposit of Common Shares to be deposited by the Company in respect
thereof in accordance with the provisions of the Deposit Agreement,
such Master ADR with respect to such Common Shares will be duly and
validly issued and the person in whose name the Master ADR is
registered will be entitled to the rights specified therein and in the
Deposit Agreement;
(iii)Under the laws of the State of New York relating to personal
jurisdiction, the Company has, pursuant to Section 12 of this
Agreement, validly and irrevocably submitted to the personal
jurisdiction of any state or federal court located in the Borough of
Manhattan, The City of New York, New York (each a "New York Court") in
any action arising out of or relating to the Terms Agreement
(including the provisions of this Agreement) or the transactions
contemplated thereby or hereby, has validly and irrevocably waived any
objection to the venue of a proceeding in any such court, and has
validly and irrevocably appointed the Authorized Agent (as defined
herein) as its authorized agent for the purpose described in Section
12; and service of process effected on such agent in the manner set
forth in Section 12 will be effective to confer valid personal
jurisdiction over the Company in the New York Courts; provided,
however, that such counsel need express no opinion as to whether a
Federal court sitting in New York would have jurisdiction in a suit,
action or proceeding against the Company brought by one or more
plaintiffs who are not United States nationals or residents;
(iv) No consent, approval, authorization or order of, or
registration or qualification with, any Federal or New York court or
governmental agency or body is required for the issue and sale of the
Offered Shares or the consummation by the Company of the transactions
contemplated by the Terms Agreement (including the provisions of this
Agreement), except the registration under the Act of the Shares and
the ADSs, and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Offered Shares by the Underwriters (as to which such counsel need
express no opinion);
(v) The statements set forth in the Prospectus under the caption
"Description of American Depositary Receipts Relating to Shares of
Royal Ahold", insofar as they purport to constitute a summary of the
terms of the ADRs, fairly summarize in all material respects the terms
of the Deposit Agreement and the ADRs and the agreements set forth
therein;
(vi) The statements set forth in the Prospectus under the caption
"Taxation--U.S. Taxation", to the extent they constitute matters of
United States federal income tax law and legal conclusions with
respect thereto, are accurate in all material respects;
(vii)The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act;
(viii) The documents incorporated by reference in the Prospectus
or any further amendment or supplement thereto made by the Company
prior to the relevant Closing Date (other than the financial
statements and related schedules and other financial and statistical
data included or incorporated by reference therein or omitted
therefrom, as to which such counsel need express no opinion), when
they were filed with the Commission, appeared on their face to comply
as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission
thereunder; and
(ix) The Registration Statement relating to the Offered Shares,
as of its effective date, the ADS Registration Statement, as of its
effective date, the Registration Statement, the ADS Registration
Statement and the Prospectus, as of the date of the Terms Agreement
(other than the financial statements and related schedules and other
financial and statistical data included or incorporated by reference
therein or omitted therefrom and other than the Trustees' Statements
of Eligibility on Form T-1, as to which such counsel need express no
opinion) appeared on their face to comply as to form in all material
respects with the requirements of the Act and the Rules and
Regulations thereunder; nothing has come to such counsel's attention
which causes it to believe that the Registration Statement relating to
the Shares, as of its effective date, the ADS Registration Statement,
as of its effective date, or the Prospectus, as of the date of the
Terms Agreement (other than, in each case, the financial statements
and related schedules and other financial and statistical data
included or incorporated by reference therein or omitted therefrom, as
to which such counsel need express no opinion), contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading or that the Prospectus, as
amended or supplemented as of the relevant Closing Date, as of such
Closing Date (other than the financial statements and related
schedules and other financial and statistical data included or
incorporated by reference therein or omitted therefrom and other than
the Trustees' Statements of Eligibility on Form T-1, as to which such
counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; it being understood that such counsel may
state that they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement, the ADS Registration Statement or the
Prospectus, except for those referred to in subsection (v) or (vi) of
this Section 5(e).
In rendering such opinion, such counsel may state that they express no
opinion as to the laws other than the Federal law of the United States and
the law of the State of New York.
(f) The Representatives shall have received an opinion dated the
Closing Date, from the General Counsel or the Vice President Legal Affairs
of the Company, to the effect that:
(i) Nothing has come to such counsel's attention that causes such
counsel to believe that any of the documents incorporated by reference
in the Prospectus and any further amendment or supplement thereto made
by the Company prior to the Closing Date (other than the financial
statements and related schedules and other financial and statistical
data included or incorporated by reference therein or omitted
therefrom, as to which such counsel need express no opinion), when it
was filed with the Commission, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made when such documents
were so filed, not misleading; and
(ii) Nothing has come to such counsel's attention which causes
such counsel to believe that the Registration Statement relating to
the Shares, as of its effective date, the ADSs Registration Statement,
as of its effective date, the Registration Statement, the ADS
Registration Statement and the Prospectus, as of the date of the Terms
Agreement (other than, in each case, the financial statements and
related schedules and other financial and statistical data included or
incorporated by reference therein or omitted therefrom and other than
the Trustees' Statements of Eligibility on Form T-1, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein (in the
case of the Prospectus, in light of the circumstances under which they
were made) not misleading or that the Prospectus, as amended or
supplemented as of the relevant Closing Date, as of such Closing Date
(other than the financial statements and related schedules and other
financial and statistical data included or incorporated by reference
therein or omitted therefrom, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(g) The Representatives shall have received an opinion, dated the
relevant Closing Date, of De Brauw Blackstone Westbroek N.V., Dutch counsel
for the Company, to the effect that:
(i) The Company has been duly incorporated and is validly
existing under the law of The Netherlands as a legal entity in the
form of a "naamloze vennootschap" (a public company with limited
liability).
(ii) The Company has an authorized share capital as set forth in
the Prospectus.
(iii)The Offered Shares have been duly authorized and validly
issued by the Company in accordance with the laws of The Netherlands
and the provisions of the Articles of Association applicable thereto
and are fully paid and non-assessable. Pursuant to the Articles of
Association and the laws of The Netherlands, the Offered Shares may be
freely issued by the Company to or for the account of the several
Underwriters and the initial subscribers thereof in the manner
contemplated in the Terms Agreement (including the provisions of this
Agreement).
(iv) The Company has the corporate power and corporate authority
to enter into and perform the obligations on its part to be performed
under the Terms Agreement (including the provisions of this
Agreement). The Company has the corporate power and corporate
authority to conduct its business as described in the Prospectus.
(v) This Agreement and the Terms Agreement have been duly
executed and delivered by the Company.
(vi) The execution and delivery by the Company of this Agreement
and the Terms Agreement and the performance by the Company of its
obligations hereunder and thereunder and the execution, delivery and
filing by or in the name of the Company of the Registration Statement
and the ADS Registration Statement have been duly authorized by the
Company.
(vii)The choice of New York law as the law expressed to be
governing the Terms Agreement (including the provisions of this
Agreement) will be recognized as the law governing the Terms Agreement
(including the provisions of this Agreement) and accordingly the
courts of The Netherlands should apply New York law as the law
expressed to be governing the Terms Agreement (including the
provisions of this Agreement).
(viii) The issue and sale by the Company of the Offered Shares,
the compliance by the Company with the provisions under the Terms
Agreement (including the provisions of this Agreement) and the
consummation of the transactions contemplated therein and herein do
not violate any provisions of the law of The Netherlands or the
Articles of Association.
(ix) In order to ensure the legality, validity, enforceability or
admissibility in evidence of the Terms Agreement (including the
provisions of this Agreement), it is not necessary that the Terms
Agreement (including the provisions of this Agreement) be filed,
recorded or enrolled with any public authority, governmental agency or
governmental department of The Netherlands (excluding, for the
avoidance of doubt, a court in connection with legal proceedings
insofar as the enforceability and admissibility in evidence are
concerned), or that any stamp, registration or similar tax or charge
be paid in The Netherlands, except for certain court fees in
connection with legal proceedings.
(x) The submission to the jurisdiction of any United States
Federal court or state court sitting in the Borough of Manhattan, the
City of New York, State of New York, and the irrevocable waiver of any
objection to the laying of venue of a proceeding in such court and of
any immunity to jurisdiction of such court, to which it is or may
become entitled, will, according to the courts of The Netherlands duly
applying New York law as the law governing the Terms Agreement
(including the provisions of this Agreement) (including such
submission and waiver), be valid and binding on the Company.
(xi) All authorizations, consents or approvals of, or
registrations or filings with, any governmental department or
regulatory authority of or within The Netherlands which are required
for the issue and sale of the Offered Shares by the Company or the
consummation by the Company of the transactions contemplated under the
Terms Agreement (including the provisions of this Agreement) have been
obtained or made and are in full force and effect. No authorization,
license, consent or approval of any governmental department or
regulatory authority of or within The Netherlands is required to
effect dividend payments in United States dollars on any of the
Shares.
(xii)The statements set forth in the Prospectus under the
captions (if applicable) "Limitations on Enforcement of U.S. Laws
Against Royal Ahold, Its Management, and Others", "Management", and
"Description of Share Capital" to the extent that such statements are
statements as to matters of the law of The Netherlands or the Articles
of Association are correct in all material respects, and the Offered
Shares conform to the description of the Shares as referred to in such
statements and to the Articles of Association.
(xiii) The Corporate Executive Board of the Company has in its
resolutions referred to above in Section 2(g) validly resolved to
exclude the pre-emptive rights of shareholders in respect of the issue
of the Offered Shares by the Company, the Corporate Executive Board of
the Company has the authority to adopt such resolutions, and no other
action is required to exclude such pre-emptive rights.
In rendering such opinions, such counsel may state that with respect
to all matters of United States federal and New York law they have relied upon
the opinions of United States counsel for the Company delivered pursuant to
paragraph (e) of this Section 5.
(h) The Representatives shall have received an opinion, dated the
relevant Closing Date, of ___________, Dutch tax counsel for the Company,
to the effect that:
(i) No stamp or other issuance or transfer taxes or duties are
payable by or on behalf of the Underwriters to The Netherlands or to
any political subdivision or taxing authority thereof or therein in
connection with (x) the deposit with the Depositary of Common Shares
by the Company against the issuance of ADRs evidencing the ADSs (y)
the sale and delivery by the Company of the Offered Shares to or for
the respective accounts of the Underwriters or (z) the sale and
delivery outside The Netherlands by the Underwriters of the Offered
Shares to the initial purchasers thereof, in each case in the manner
contemplated in this Agreement and the Terms Agreement;
(ii) No capital gains, income or withholding taxes are payable by
or on behalf of the Underwriters to The Netherlands or to any
political subdivision or taxing authority thereof or therein in
connection with (x) the deposit with the Share Depositary of Offered
Shares by the Company against the issuance of ADRs evidencing the
ADSs, (y) the sale and delivery by the Company of the Offered Shares
to or for the respective accounts of the Underwriters or (z) the sale
and delivery outside The Netherlands by the Underwriters of the
Offered Shares to the initial purchasers thereof in the manner
contemplated in this Agreement and the Terms Agreement, provided that:
(1) the Underwriter is not a resident or deemed resident of The
Netherlands; (2) the Underwriter does not have an enterprise which in
its entirety or in part carries on business in The Netherlands through
a permanent establishment or permanent representative to which or to
whom the Offered Shares or ADSs are attributable, or to which or to
whom the Offered Shares or ADSs belong; and (3) the Underwriter does
not and will not, as a result of the transactions referred to in
clauses (x), (y), and/or (z) above, have a substantial interest or
deemed substantial interest as defined in Article 20a of the Dutch
Income Tax Act in the share capital of the Company or, in the event
that there is such an interest, such interest belong to the business
of an enterprise;
(iii) The statements set forth in the Prospectus under the
caption "Taxation--Netherlands Taxation" insofar as they relate to
matters of Dutch tax law or regulation or to provisions of documents
therein described, are true and accurate in all material respects.
(i) If the Representatives elect pursuant to the Terms Agreement to
take delivery of some or all of the Offered Shares in the form of ADSs, the
Representatives shall have received an opinion, dated the relevant Closing
Date, of Counsel for the Depositary, in form and substance satisfactory to
the Representatives, to the effect that:
(i) The Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and constitutes a valid and legally
binding obligation of the Depositary and is enforceable in accordance
with its terms, except insofar as enforceability may be limited by (a)
applicable bankruptcy, insolvency, moratorium and other laws relating
to creditors' rights generally and (b) general principles of equity
(whether considered in an action at law or in equity); and
(ii) When ADRs evidencing ADSs are issued in accordance with the
Deposit Agreement against the deposit, pursuant to the terms of the
Deposit Agreement, of duly authorized, validly issued, fully paid and
nonassessable Common Shares of the Company, the preemptive rights, if
any, with respect to which have been validly waived or exercised, such
ADRs will be validly issued and will entitle the holders thereof to
the rights specified therein and in the Deposit Agreement;
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction outside the United States.
(j) The Representatives shall have received from their U.S. counsel
such opinion or opinions, dated the relevant Closing Date, with respect to
the validity of the Offered Shares, the Registration Statement, the ADS
Registration Statement, the Prospectus and such other related matters as
the Underwriters may reasonably require, and the Company shall have
furnished to such counsel such documents as they may reasonably request for
the purpose of enabling them to pass upon such matters.
(k) The Offered Shares to be sold by the Company at such Closing Date
shall have been duly listed and admitted for trading on the AEX, and the SE
and, if applicable, the ADSs to be sold by the Company at the relevant
Closing Date shall have been duly listed on the NYSE.
(l) If the Representatives elect pursuant to the Terms Agreement to
take delivery of some or all of the Offered Shares in the form of ADSs, the
Depositary shall have furnished or caused to be furnished to the
Representatives at the relevant Closing Date certificates reasonably
satisfactory to the Representatives evidencing the deposit with it of the
Common Shares being so deposited against issuance of ADRs evidencing the
ADSs to be delivered by the Company at such Closing Date, and the
execution, countersignature (if applicable), issuance and delivery of ADRs
evidencing such ADSs pursuant to the Deposit Agreement.
(m) The Representatives shall have received a certificate, dated the
Closing Date, of two officers of the Company reasonably satisfactory to the
Representatives in which such officers shall state that, to their
knowledge, the representations and warranties of the Company in this
Agreement and in the Terms Agreement referred to in Section 3, if
applicable, are true and correct at and as of the Closing Date, that the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the Closing
Date, that no stop order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no proceedings for
that purpose have been instituted by the Commission, that, subsequent to
the date of the most recent financial statements in the Prospectus, there
has been no material adverse change in the financial position or results of
operations of the Company and its subsidiaries taken as a whole except as
set forth in or contemplated by the Prospectus or as described in such
certificate, and shall cover such other matters as the Representatives may
reasonably request.
The Company will furnish the Representatives with such conformed
copies of such opinions, certificates, letters and documents as they reasonably
request.
6. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Preliminary Prospectus, the Registration Statement, the Prospectus, the ADS
Registration Statement, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim, as such expenses are
incurred; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives expressly for use therein; and provided, further,
that the Company shall not be liable to any Underwriter under the indemnity
agreement in this subsection (a) with respect to any Preliminary Prospectus to
the extent that any such loss, claim, damage or liability of such Underwriter
results from the fact that such Underwriter sold Shares or ADSs to a person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Prospectus or the Prospectus as then amended or
supplemented in any case where such delivery is required by the Act if the
Company has previously furnished copies thereof in sufficient quantity to such
Underwriter as required by Section 4(f) and the loss, claim, damage or liability
of such Underwriter results from an untrue statement or omission of a material
fact contained in a Preliminary Prospectus which was corrected in the Prospectus
or the Prospectus as then amended, modified or supplemented.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus, the ADS Registration Statement or any amendment or supplement
thereto, or arise out of or are based upon the omission or the alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any of such documents in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein, and will
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under this Section. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is unavailable
(other than as a result of (i) the provisos contained in subsection (a) or (ii)
the failure of the indemnified party to give notice to the indemnifying party as
required under subsection (c) hereof) or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and by
the Underwriters on the other from the offering of the Offered Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering of the
Offered Shares purchased under the Terms Agreement (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions
received by the Underwriters with respect to the Offered Shares purchased under
the Terms Agreement, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered Shares underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters'obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. Default of Underwriters. (a) If any Underwriter shall default in
its obligation to purchase the Offered Shares which it has agreed to purchase
under the Terms Agreement relating to such Offered Shares, the Representatives
may in their discretion arrange for themselves or another party or other parties
to purchase such Offered Shares on the terms contained herein and therein. If
within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Offered Shares, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to the Representatives to
purchase such Offered Shares on such terms. In the event that, within the
respective prescribed periods, the Representatives notify the Company that they
have so arranged for the purchase of the Offered Shares, or the Company notifies
the Representatives that it has so arranged for the purchase of such Offered
Shares, the Representatives or the Company shall have the right to postpone the
Closing Date for the Offered Shares for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this section with like effect as if
such person had originally been a party to the Terms Agreement with respect to
such Offered Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Offered Shares of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate number of such Offered Shares which remains unpurchased does not
exceed one-eleventh of the aggregate number of the Offered Shares to be
purchased at such Closing Date, then the Company shall have the right to require
each non-defaulting Underwriter to purchase on the applicable Closing Date the
number of Offered Shares which such Underwriter agreed to purchase at such
Closing Date under the Terms Agreement relating to such Offered Shares and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the amount of Offered Shares which such Underwriter agreed to
purchase under such Terms Agreement at such Closing Date) of the Offered Shares
of such defaulting Underwriter or Underwriters for which such arrangements have
not been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Offered Shares of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate number of Offered Shares which remains unpurchased exceeds
one-eleventh of the aggregate number of the Offered Shares to be purchased at
such Closing Date, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase Offered
Shares of a defaulting Underwriter or Underwriters, then the Terms Agreement
relating to such Offered Shares (or, with respect to the Option Closing Date,
the obligations of the Underwriters to purchase, and of the Company to sell, the
Option Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 4(g) and the
indemnity and contribution agreements in Section 6; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person and will survive delivery of and
payment for the Offered Shares. If the Terms Agreement is terminated pursuant to
Section 7 or if for any reason the purchase of the Offered Shares by the
Underwriters under the Terms Agreement is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 4(g) and the respective obligations of the Company and the Underwriters
pursuant to Section 6 shall remain in effect. If the purchase of the Offered
Shares by the Underwriters is not consummated for any reason, other than solely
because of the termination of the Terms Agreement pursuant to Section 7 or the
occurrence of any event specified in clause (ii), (iv), (v) or (vi) of Section
5(c), the Company will reimburse the Underwriters for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by them in connection with the offering of the Offered
Shares, but the Company shall be under no further liability to any Underwriter
except as provided in Section 4(g) and Section 6.
9. Notices. All statements, requests, notices and agreements hereunder
shall be in writing and if to the Underwriters shall be sufficient in all
respects, if delivered or sent by first class mail, telex, or facsimile
transmission (confirmed in writing by overnight courier sent on the day of such
facsimile transmission) to the address of the Representatives as set forth in
the Terms Agreement; and if to the Company shall be sufficient in all respects
if delivered or sent by air mail, telex, or facsimile transmission (confirmed in
writing by overnight courier sent on the day of such facsimile transmission) to
the address of the Company set forth in the Registration Statement, Attention:
Secretary. Any such statements, requests, notices or agreements shall have
effect upon receipt thereof.
10. Successors. This Agreement will inure solely to the benefit of and
be binding upon the Company and such Underwriters as are identified in Terms
Agreements and their respective officers and directors and controlling persons
referred to in Sections 6 and 8, and the respective heirs, executors,
administrators, successors and assigns, and no other person will acquire or have
any right or obligation hereunder or by virtue of this Agreement. No purchaser
of any of the Offered Shares from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
11. Representatives. In all dealings under any Terms Agreement and
hereunder, the Representatives shall act on behalf of each of the Underwriters,
and the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by the
Representatives.
12. Submission to Jurisdiction. Each of the parties hereto irrevocably
(i) agrees that any legal suit, action or proceeding arising out of or based
upon a Terms Agreement (including the provisions of this Agreement) or the
transactions contemplated thereby or hereby may be instituted in any New York
Court, (ii) waives, to the fullest extent permitted by applicable law, any
objection which it may now or hereafter have to the laying of venue of any such
proceeding and (iii) submits to the exclusive jurisdiction of such courts in any
such suit, action or proceeding. The Company has appointed Ahold U.S.A., Inc.,
One Atlanta Plaza, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, as its authorized agent (the "Authorized Agent") upon whom process may be
served in any such action arising out of or based on any such Terms Agreement
(including the provisions of this Agreement) or the transactions contemplated
hereby or thereby which may be instituted in any New York Court by any
Underwriter or by any person who controls any Underwriter, expressly consents to
the jurisdiction of any such court in respect of any such action, and waives any
other requirements of or objections to personal jurisdiction with respect
thereto. Such appointment shall be irrevocable. The Company represents and
warrants that the Authorized Agent has agreed to act as such agent for service
of process and agrees to take any and all action, including the filing of any
and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent and written notice of such service to the Company shall be
deemed, in every respect, effective service of process upon the Company.
13. Judgment Currency. In respect of any judgment or order given or
made for any amount due hereunder in United States dollars that is expressed and
paid in a currency (the "judgment currency") other than United States dollars,
the Company will indemnify each Underwriter against any loss incurred by such
Underwriter as a result of any variation as between (i) the rate of exchange at
which the United States dollar amount is converted into the judgment currency
for the purpose of such judgment or order and (ii) the rate of exchange at which
an Underwriter is able to purchase United States dollars with the amount of the
judgment currency actually received by such Underwriter. The foregoing indemnity
shall constitute a separate and independent obligation of the Company and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" shall include any premiums and costs of
exchange payable in connection with the purchase of or conversion into United
States dollars.
14. Time of Essence. Time shall be of the essence of each Terms
Agreement. As used herein the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
15. GOVERNING LAW. THIS AGREEMENT AND EACH TERMS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. Counterparts. This Agreement and each Terms Agreement may be
executed by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
* * *
If the foregoing is in accordance with your understanding, please sign
and return three counterparts hereof.
Very truly yours,
KONINKLIJKE AHOLD N.V.
By___________________________
Name:
Title:
Accepted as of the date hereof:
[Names of Underwriters]
By: [Representatives]
By______________________
Name:
Title:
On behalf of each of the Underwriters
ANNEX A
KONINKLIJKE AHOLD N.V.
COMMON SHARES
TERMS AGREEMENT
--------- , ----
[Names and Addresses of
Representatives]
Ladies and Gentlemen:
1. Introductory
Koninklijke Ahold N.V. (Royal Ahold), a public company with limited
liability organized under the laws of The Netherlands, and with its corporate
seat in Zaandam (municipality Zaanstad), The Netherlands (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated _________ __, ____ (the "Underwriting Agreement"),
between the Company on the one hand and __________________, on the other hand,
to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the number of common shares, par value NLG 0.50 per share, of
the Company (the "Common Shares") specified in Schedule II hereto. Except to the
extent explicitly provided otherwise herein, each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Terms Agreement, except that, if this Terms
Agreement and the Underwriting Agreement are dated different dates, each
representation and warranty with respect to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation and warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined) and also a representation and warranty as of the date of this Terms
Agreement in relation to the Prospectus as amended or supplemented relating to
the Common Shares which are the subject of this Terms Agreement. Each reference
to the Representatives herein and in the provisions of the Underwriting
Agreement so incorporated by reference shall be deemed to refer to you. Unless
otherwise defined herein, terms defined in the Underwriting Agreement are used
herein as therein defined. The Representatives designated to act on behalf of
each of the Underwriters of Common Shares are set forth in Schedule II hereto.
Subject to the terms and conditions set forth herein, in Schedule II
hereto and in the Underwriting Agreement incorporated herein by reference, the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
the time and place and at a purchase price to the Underwriters set forth in
Schedule II hereto, the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I hereto.
2. Purchase and Offering of Securities
[Subject to the terms and conditions set forth herein, in Schedule II
hereto and in the Underwriting Agreement incorporated herein by reference, the
Company hereby grants an option to the Underwriters, severally and not jointly,
to purchase in the aggregate up to the number of Option Shares set forth on
Schedule II at the same purchase price as shall be applicable to the Firm
Shares. The option hereby granted will expire __ days after the date hereof and
may be exercised, in whole or in part at one time, only for the purpose of
covering over-allotments that may be made in connection with the offering and
distribution of the Firm Shares. Such option may be exercised upon written
notice by the Representatives to the Company setting forth the number of Option
Shares as to which the several Underwriters are exercising the option and the
Option Closing Date. If the option is exercised as to all or any portion of the
Option Shares, the Option Shares as to which the option is exercised shall be
purchased by each Underwriter, severally and not jointly, in the proportion that
the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I bears to the total number of Firm Shares, subject to such adjustments
as you, in your discretion, shall make to eliminate any sales or purchases of
fractional Offered Shares. No Option Shares shall be sold or delivered unless
the Firm Shares previously have been, or simultaneously are, sold and delivered.
The right to purchase the Option Shares or any portion thereof may be
surrendered and terminated at any time before the exercise thereof upon written
notice by the Representatives to the Company.]
[With respect to all or a portion of the Common Shares to be purchased
and sold by the several Underwriters, the Representatives may elect to have ADSs
delivered and paid for hereunder in lieu of, and in satisfaction of, the
Company's obligation to sell to the several Underwriters and the several
Underwriters' obligations to purchase, Common Shares. Notice of such election
shall be given by the Representatives to the Company at least two business days
prior to the relevant Closing Date (the "Notification Time"). The number of ADSs
to be purchased by the Underwriters as a result of the making of such election
shall be adjusted by the Representatives so as to eliminate any fractional ADSs
and the purchase price for any ADSs so delivered as a result of making such
election shall be the purchase price per ADS set out in Schedule II hereto
Except as the context may otherwise require, references hereinafter to the
Common Shares shall include all of the Common Shares, whether in the form of
Common Shares or ADSs.
If the foregoing is in accordance with your understanding, please sign
and return to us _______ counterparts hereof, and upon acceptance hereof by you,
on behalf of the Underwriters, this Terms Agreement and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. [It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be supplied to
the Company upon request, but without warranty on your part (other than as to
yourselves) as to the authority of the signers thereof.]
Very truly yours,
KONINKLIJKE AHOLD N.V.
By___________________________
Name:
Title:
Accepted as of the date hereof:
[Names of Underwriters]
By: [Representatives]
By______________________
Name:
Title:
On behalf of each of the Underwriters
SCHEDULE I
Number of
Firm Shares
Underwriter to be Purchased
------------
Total....................... ============
SCHEDULE II
TITLE OF SECURITIES: Common Shares/ADSs
DEPOSITARY:
AGGREGATE NUMBER OF FIRM SHARES:
AGGREGATE NUMBER OF OPTION SHARES:
PRICE TO PUBLIC:
[$]___________ per Share
[$]___________ per ADS
PURCHASE PRICE PAID BY UNDERWRITERS:
[$]___________ per Share
[$]___________ per ADS
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[Federal funds]
[New York Clearinghouse funds]
FIRM CLOSING DATE:
[Time and date], ____
CLOSING LOCATION:
BLACKOUT PERIOD:
[None]
[For a period beginning at the time of execution of the Terms
Agreement and ending [90] days thereafter, the Company will
not, directly or indirectly, without the prior written consent
of the Representatives, offer, sell, contract to sell or
otherwise dispose of for value Common Shares, ADSs or
securities representing, convertible into or exchangeable for,
or any rights to purchase or acquire, Common Shares or ADSs,
other than (1) pursuant to the Terms Agreement, (2) Shares
issued pursuant to a stock dividend, (3) Shares or options for
Shares issued to officers and employees of the Company or any
of its subsidiaries under any stock plan existing at the time
of execution of the Terms Agreement or any future such plan,
or any Shares issued upon exercise of any such options, or (4)
Shares issued upon the exercise of any options or other
securities exercisable for Shares, or the conversion or
exchange of convertible or exchangeable securities, in each
case, outstanding at the time of execution of the Terms
Agreement; provided, however, it is understood and agreed
that, notwithstanding the foregoing, the Company may announce
an offering of Common Shares and/or ADSs in connection with an
acquisition or similar corporate transaction and may engage in
negotiations with prospective underwriters and others in
connection with such offering.
[Insert terms, if other than as above]
NAMES AND ADDRESSES OF REPRESENTATIVES:
ADDRESS FOR NOTICES, ETC.:
ANNEX B
DESCRIPTION OF COMFORT LETTER
Pursuant to Section 5(a) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Securities Act
of 1933, as amended, (the "Act") and the applicable published rules and
regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Securities Exchange Act, of 1934,
as amended (the "Exchange Act"), as applicable, and the related published
rules and regulations thereunder; and, if applicable, they have made a
review in accordance with standards established by the American Institute
of Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecast and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified in
such letter, as indicated in their reports thereon, copies of which have
been furnished to the representatives of the Underwriters (the
"Representatives");
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Company's reports
on Form 6-K incorporated by reference into the Prospectus and, if
applicable, included in the Prospectus, as indicated in their reports
thereon; and on the basis of specified procedures including inquiries of
officials of the Company who have responsibility for financial and
accounting matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (vi)(A)(i) below comply as to
form in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published rules and
regulations, nothing came to their attention that caused them to believe
that the unaudited condensed consolidated financial statements do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included or incorporated by reference
in Item 8 of the Company's Annual Report on Form 20-F for the most recent
fiscal year and, if applicable, included, in the Prospectus agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for such five fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 20-F for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 8 and 11 of Form 20-F and of
Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements incorporated by reference in the
Prospectus and, if applicable, included in the Prospectus, inquiries of
officials of the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them
to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included or incorporated by reference in a report on Form
6-K incorporated by reference in the Prospectus and, if applicable,
included in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Exchange
Act and the related published rules and regulations, or (ii) any
material modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows or included in a report on Form
6-K incorporated by reference in the Prospectus, for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items incorporated by reference in the Prospectus do not agree with
the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis substantially
consistent with the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by
reference in the Company's Annual Report on Form 20-F for the fiscal
year ended __________;
(C) the unaudited financial statements which were not included in
the Prospectus or incorporated by reference therein but from which
were derived the unaudited condensed financial statements referred to
in Clause (A) and any unaudited income statement data and balance
sheet items included in the Prospectus or incorporated by reference
therein and referred to in Clause (B) were not determined on a basis
substantially consistent with the basis for the audited financial
statements included or incorporated by reference in the Company's
Annual Report on Form 20-F for the fiscal year ended December 29,
1996;
(D) any unaudited pro forma consolidated condensed financial
statements incorporated by reference in the Prospectus and, if
applicable, included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the pro
forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
incorporated by reference in the Prospectus or, if applicable,
included in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any decreases
in consolidated net current assets or stockholders' equity or other
items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet incorporated by reference in
the Prospectus or, if applicable, included in the Prospectus, except
in each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) there were any decreases
in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified by
the Representatives, or any increases in any items specified by the
Representatives in each case as compared with the comparable period of
the preceding year and with any other period of corresponding length
specified by the Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(vii) In addition to the examination referred to in their report(s)
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an examination in accordance with generally
accepted auditing standards, with respect to certain amounts, percentages
and financial information specified by the Representatives which are
derived from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference) or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.