KONINKLIJKE AHOLD N.V.
Debt Securities
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 certain of its debt
securities registered under the registration statement referred to in Section
2(a) (the "Debt Securities"). Debt Securities may be convertible into common
shares of the Company, par value NLG 0.50 per share ("Common Shares"). The Debt
Securities will be issued under an indenture, dated as of __________, _____ (the
"Indenture"), between the Company and ______________________, as Trustee (the
"Trustee"), in one or more series, which series may vary as to interest rates,
maturities, redemption provisions, selling prices and, in the case of Debt
Securities that are convertible at the option of holders into Common Shares
("Convertible Debt Securities"), conversion prices and the terms and conditions
relating to such conversion rights, and other terms, with all such terms for any
particular series of the Debt Securities being determined at the time of sale.
Particular series of the Debt Securities 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. The Debt Securities involved in any such offering are hereinafter referred
to as the "Securities". The firm or firms which agree to purchase the Securities
are hereinafter referred to as the "Underwriters" of such Securities, and 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.
Pursuant to the Terms Agreement referred to in Section 3, the
Underwriters may have the right to elect to take delivery of some or all of the
Securities in the form of Debt Securities or in the form of American Depositary
Notes (the "ADNs"). The ADNs 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 Note Receipts (the "ADNRs") issued by the Depositary and evidencing
the ADNs. Each ADN will initially represent the right to receive Debt Securities
deposited pursuant to the Deposit Agreement in the principal amount specified in
the Terms Agreement. Except as the context may otherwise require, references to
"Securities" shall include Debt Securities in the form of ADNs. In the case of
Debt Securities that are Convertible Debt Securities, if so specified in the
Terms Agreement referred to in Section 3, such Debt Securities may be
convertible into Common Shares.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement on Form F-3 (No. 333-____), including a
prospectus relating to the Debt Securities, 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' Statements 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 Securities 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 Securities, 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 Debt Securities, 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
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the rules and regulations of the Commission thereunder 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, the Trust Indenture Act
and the rules and regulations of the Commission thereunder, 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 Securities) 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) If, pursuant to the Terms Agreement referred to in Section 3, the
Underwriters have the right to take delivery of some or all of the Debt
Securities in the form of ADNs, a registration statement on Form F-6 (No.
333-9378) in respect of the ADNs 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 "ADN Registration Statement"); the ADN 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; the ADN 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 ADN
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 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., Giant
Food Inc. and The Stop & Shop Companies, 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; 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;
in the case of Debt Securities that are Convertible Debt Securities, the
holders of outstanding shares of capital stock of the Company will not be
entitled to preemptive or other rights to acquire the Common Shares
issuable upon conversion thereof, such rights (if applicable) 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.
(h) The Securities 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 Securities are issued,
authenticated and delivered in accordance with the provisions of the
Indenture and pursuant to such Terms Agreement against payment therefor as
provided therein, will constitute valid and legally binding instruments,
enforceable in accordance with their 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; the Securities conform in all material respects to
the description thereof contained in the Prospectus.
(i) If, pursuant to the Terms Agreement referred to in Section 3, the
Underwriters have the right to take delivery of some or all of the
Securities in the form of ADNs, 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 ADNRs evidencing ADNs and the
deposit of Debt Securities in respect thereof in accordance with the
provisions of the Deposit Agreement, such ADNRs will be duly and validly
issued and the persons in whose names the ADNRs are registered will be
entitled to the rights specified therein and in the Deposit Agreement; and
the Deposit Agreement and the ADNRs conform in all material respects to the
descriptions thereof contained in the Prospectus.
(j) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company
and, assuming due authorization, execution and delivery by the Trustee,
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; the Indenture conforms in all material respects to
the descriptions thereof contained in the Prospectus.
(k) If the Debt Securities are Convertible Debt Securities, the Common
Shares initially issuable upon conversion thereof (i) will have been duly
and validly authorized, (ii) when such Common Shares are issued and
delivered upon such conversion, will be duly and validly issued, provided
that upon conversion pursuant to the terms thereof at least the nominal
value of such Common Shares and any premium is paid up, and fully paid and
non-assessable and will conform to the description of the Common Shares
contained in the Prospectus, and (iii) when such Common Shares are issued
and delivered, may be freely deposited with the depositary for the Common
Shares against issuance of American depositary receipts evidencing American
depositary shares, as provided in the Deposit Agreement, dated January 20,
1998 among the Company, the Bank of New York, as depositary and all owners
and beneficial owners from time to time of the American depositary receipts
issued thereunder.
(l) The issue and sale of the Securities to be sold by the Company
under the Terms Agreement referred to in Section 3, the issuance of Common
Shares (if the Debt Securities include Convertible Debt Securities) and, if
applicable, the deposit of the Debt Securities with the Depositary against
issuance of ADNRs evidencing the ADNs and the compliance by the Company
with all of the provisions of such Securities, this Agreement, such Terms
Agreement, the Indenture and, if applicable, 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 Securities or, if applicable, for the deposit
of the Debt Securities with the Depositary against issuance of ADNRs
evidencing ADNs to be delivered or the consummation by the Company of the
transactions contemplated by this Agreement, the Terms Agreement referred
to in Section 3 and the Indenture, except (A) the registration under the
Act of the Securities and, if applicable, the ADNs, (B) 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 (C) 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 Securities by or
for the account of the Underwriters.
(m) 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 Securities; 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.
(n) 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)
if applicable, the deposit with the Depositary of Debt Securities by the
Company against issuance of ADNRs evidencing ADNs, (y) the sale and
delivery by the Company of the Securities to or for the respective accounts
of the Underwriters or (z) the sale and delivery outside The Netherlands by
the Underwriters of the Securities to the initial purchasers thereof in the
manner contemplated in this Agreement, the Terms Agreement and the
Indenture and no withholding on account of any Dutch taxes is required with
respect to payments made to holders of the Securities as provided therein
and in the Indenture.
(o) 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)
if applicable, the deposit with the Depositary of Debt Securities by the
Company against issuance of ADNRs evidencing ADNs, (y) the sale and
delivery by the Company of the Securities to or for the respective accounts
of the Underwriters or (z) the sale and delivery outside The Netherlands by
the Underwriters of the Securities 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
Securities or ADNs are attributable, or to which or to whom the Securities
or ADNs 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.
(p) The statements set forth in the Prospectus under the caption
"Taxation--U.S. Taxation" and, if applicable, "Description of American
Depositary Receipts Relating to Notes of Royal Ahold", 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.
(q) 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.
(r) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its 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.
(s) The Company is not and, after giving effect to the offering and
sale of the Securities, 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").
(t) The Company and each of its 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.
(u) 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.
(v) 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 Securities. The obligation of the Company
to issue and sell any Securities, the obligation of the Underwriters to purchase
the Securities 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 Securities. 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
principal amount of the Securities; the principal amount of Securities to be
purchased by each Underwriter; the initial public offering price of the
Securities; the purchase price to be paid by the Underwriters, the terms of the
Securities not already specified in the Indenture, including, but not limited
to, dates of payment and rate of interest, if any, maturity, any redemption or
repayment provisions and any sinking fund requirements, and whether the
Underwriters have the right to take delivery of some or all of the Securities in
the form of ADNs and, if so, the terms for exercise thereof. The Terms Agreement
will also specify the place of delivery and payment for the Securities and any
details of the terms of offering that should be reflected in the prospectus
supplement relating to the offering of the Securities.
The time and date of delivery and payment of the Securities 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 Securities (such time and
date, being herein and in the Terms Agreement referred to as the "Closing
Date").
The obligations of the Underwriters to purchase the Securities will be
several and not joint. It is understood that the Underwriters propose to offer
the Securities for sale as set forth in the Prospectus. The Securities delivered
to the Underwriters on the Closing Date will be in definitive fully registered
form, 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 Debt
Securities and, if the Underwriters have the right to elect to take delivery of
some or all of the Securities in the form of ADNs, one copy of the ADN
Registration Statement, including all exhibits, in the form in which each became
effective and of all amendments thereto and that, in connection with each
offering of Securities:
(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 Securities) prior to the 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 Securities 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 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 Securities), 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 Securities 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 Securities 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, the Trust Indenture 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 Securities or, if applicable, ADNs
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
Securities for offering and sale and to determine their eligibility for
investment 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 Securities,
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
Securities 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 Securities), 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 Debt Securities and, if
applicable, the ADNs under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement,
the ADN Registration Statement (if applicable), 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 (if applicable),
the Indenture, any Blue Sky Memorandum, Legal Investment Survey and any
other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) if applicable, all reasonable expenses in
connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 4(d), including the
reasonable fees and disbursements of counsel for the Underwriters in
connection with any Blue Sky Memorandum or Legal Investment Survey; (iv)
any fees charged by securities rating services for rating the Securities;
(v) the cost of preparing the Securities; (vi) the fees and expenses
(including fees and disbursements of counsel) of the Trustee under the
Indenture; (vii) the fees and expenses of the Authorized Agent (as defined
in Section 12); (viii) if applicable, 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 ADNs (other than the Underwriters in connection with
the initial purchase of ADNs, if any, pursuant to a Terms Agreement
referred to in Section 3); (ix) if applicable, except as provided below,
all stamp or transfer taxes, if any, arising as a result of the deposit by
the Company of the Debt Securities with the Depositary, if applicable, and
the issuance and delivery of the ADNRs evidencing ADNs in exchange therefor
by the Depositary to the Company, of the sale and delivery of the Debt
Securities 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 (x) 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 and any
advertising expenses incurred in connection with the transactions
contemplated hereby.
(h) To use the net proceeds received by it from the sale of the
Securities 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".
(i) If the Underwriters have the right under the Terms Agreement
referred to in Section 3 to take delivery of some or all of the Securities
in the form of ADNs and if they have elected to take delivery of some or
all of the Securities in the form of ADNs, prior to the relevant Closing
Date, the Company will deposit the relevant Debt Securities with the
Depositary in accordance with the provisions of the Deposit Agreement and
otherwise will comply with the Deposit Agreement so that ADNRs evidencing
the requisite number of ADNs will be executed (and, if applicable,
countersigned) and issued by the Depositary against receipt of such Debt
Securities and delivered to the Underwriters on the Closing Date.
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Securities on the
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 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 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
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, if applicable, the ADN 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 New York Stock Exchange or the AEX-Stock Exchange; (iii) any suspension
for more than two hours or material limitation in trading in the Company's
securities on the New York Stock Exchange or the AEX-Stock Exchange; (iv)
any general moratorium on commercial banking activities in New York or
Amsterdam declared by the relevant authorities; (v) 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 Securities being delivered at the 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 Securities and
other convertible debt (if the Debt Securities include Convertible Debt
Securities) or other debt 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 Securities 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
Closing Date, of White & Case LLP, counsel for the Company, to the effect
that:
(i) If the Representatives pursuant to the Terms Agreement have
the right to elect to take delivery of some or all of the Securities
in the form of ADNs, assuming (x) due authorization, execution and
delivery by the Company under Dutch law of the Deposit Agreement and
the Indenture, (y) due authorization, execution and delivery of the
Deposit Agreement and the Indenture by the Depositary and the Trustee,
respectively, and (z) that each of the Depositary, the Trustee and
(under Dutch law) the Company has full power, authority and legal
right to enter into and perform its obligations thereunder, that each
of the Deposit Agreement and the Indenture 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 pursuant to the Terms Agreement have
the right to elect to take delivery of some or all of the Securities
in the form of ADNs, upon due issuance by the Depositary of a master
ADNR (the "Master ADNR") evidencing ADNs being delivered on the
Closing Date against the deposit of Securities to be deposited by the
Company in respect thereof in accordance with the provisions of the
Deposit Agreement, such Master ADNR with respect to such Securities
will be duly and validly issued and the person in whose name the
Master ADNR is registered will be entitled to the rights specified
therein and in the Deposit Agreement;
(iii) The Indenture has been duly qualified under the Trust
Indenture Act;
(iv) Assuming due authorization, execution and issuance by the
Company under Dutch law of the Securities, the Securities constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, except as the enforceability thereof may
be limited by applicable bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally, or to general principles of equity (regardless of whether
the issue of enforceability is considered in a proceeding in equity or
at law);
(v) The Securities have been duly authenticated in the manner
provided in the Indenture, are entitled to the benefits provided by
the Indenture, and conform in all material respects to the description
of the Debt Securities contained in the Prospectus;
(vi) Under the laws of the State of New York relating to personal
jurisdiction, the Company has, pursuant to Section 12 of this
Agreement and Section 11.12 of the Indenture, 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), the
Securities or the Indenture, as the case may be, 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;
(vii) 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
Securities or, if the Debt Securities include Convertible Debt
Securities, the issuance of Common Shares upon conversion thereof, or
the consummation by the Company of the transactions contemplated by
the Terms Agreement (including the provisions of this Agreement) or
the Indenture, except the registration under the Act of the Securities
and, if applicable, the ADNs, and such consents, approvals,
authorizations, registrations or qualifications as have been obtained
and made and such as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters (as to which such counsel need express
no opinion);
(viii) If the Representatives pursuant to the Terms Agreement
have the right to elect to take delivery of some or all of the
Securities in the form of ADNs, the statements set forth in the
Prospectus under the caption "Description of American Depositary
Receipts Relating to Notes of Royal Ahold", insofar as they purport to
constitute a summary of the terms of the ADNs, fairly summarize in all
material respects the terms of the Deposit Agreement and the ADNs and
the agreements set forth therein;
(ix) The statements set forth in the Prospectus under the caption
"Description of Debt Securities", insofar as they purport to
constitute a summary of the terms of the Securities, fairly summarize
in all material respects the terms thereof;
(x) 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;
(xi) 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;
(xii) 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;
(xiii) The Registration Statement relating to the Securities, as
of its effective date, the ADN Registration Statement (if applicable),
as of its effective date, the Registration Statement, the ADN
Registration Statement (if applicable) 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, the
Trust Indenture Act and the rules and regulations of the Commission
thereunder; nothing has come to such counsel's attention which causes
it to believe that the Registration Statement relating to the
Securities, as of its effective date, the ADN Registration Statement
(if applicable), 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 and other than the Trustees' Statements of
Eligibility on Form T-1, 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 Closing
Date, as of 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) 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 ADN Registration Statement (if applicable)
or the Prospectus, except for those referred to in subsection (vi) or
(vii) 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 securities 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 Securities, as of its effective date, the ADN Registration
Statement (if applicable), as of its effective date, the Registration
Statement, the ADN Registration Statement (if applicable) 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 Closing
Date, as of 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) 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.
(iii) The execution, delivery and filing by or in the name of the
Company of the Registration Statement have been duly authorized by the
Company.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws other than the laws of The Netherlands.
(g) The Representatives shall have received an opinion, dated the
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) This Agreement, the Terms Agreement and the Indenture have
been duly executed and delivered by the Company.
(iii) If the Debt Securities include Convertible Debt Securities,
the Common Shares initially issuable upon conversion thereof have been
duly authorized and, when such Common Shares are issued and delivered
upon such conversion, will be validly issued by the Company in
accordance with the laws of The Netherlands and the provisions of the
Articles of Association applicable thereto and will be fully paid and
non-assessable. Pursuant to the Articles of Association and the laws
of The Netherlands, the Common Shares initially issuable upon
conversion thereof may be freely issued by the Company to or for the
account of the holders of the Debt Securities converting the same in
the manner contemplated by the Indenture.
(iv) The Company has the corporate power and corporate authority
to execute and deliver and perform the obligations on its part to be
performed under the Terms Agreement (including the provisions of this
Agreement), the Indenture and the Securities and to authorize, issue
and sell the Securities. The Company has the corporate power and
corporate authority to conduct its business as described in the
Prospectus.
(v) The execution and delivery by the Company of this Agreement,
the Terms Agreement and the Indenture and the execution, issuance and
delivery of the Securities, 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 ADN Registration Statement (if applicable) have been duly
authorized by the Company.
(vi) The choice of New York law as the law expressed to be
governing the Terms Agreement (including the provisions of this
Agreement), the Indenture and the Securities will be recognized as the
law governing the Terms Agreement (including the provisions of this
Agreement), the Indenture and the Securities 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), the Indenture and the Securities.
(vii) The issue and sale by the Company of the Securities, if the
Debt Securities include Convertible Debt Securities, the issue by the
Company of the Common Shares upon conversion thereof, the compliance
by the Company with the provisions under the Terms Agreement
(including the provisions of this Agreement), the Indenture and the
Securities, 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.
(viii) In order to ensure the legality, validity, enforceability
or admissibility in evidence of the Terms Agreement (including the
provisions of this Agreement), the Indenture and the Securities, it is
not necessary that the Terms Agreement (including the provisions of
this Agreement), the Indenture or the Securities 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.
(ix) 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), the Indenture and the Securities, as the case
may be, be valid and binding on the Company.
(x) 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 Securities by the Company or the
consummation by the Company of the transactions contemplated under the
Terms Agreement (including the provisions of this Agreement) and the
Indenture have been obtained or made and are in full force and effect.
(xi) 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 Debt Securities" 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.
(xii) If the Debt Securities include Convertible Debt Securities,
the Corporate Executive Board of the Company has in its resolutions
referred to above in Section 2(g) validly resolved to exclude the
preemptive rights of shareholders in respect of the issue of the
Common 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 preemptive 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
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) if applicable, the deposit with the Depositary of
Securities by the Company against the issuance of ADNRs evidencing the
ADNs, (y) the sale and delivery by the Company of the Securities to or
for the respective accounts of the Underwriters or (z) the sale and
delivery outside The Netherlands by the Underwriters of the Securities
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 withholdings 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) if applicable, the deposit with the Depositary of
Securities by the Company against the issuance of ADNRs evidencing the
ADNs, (y) the sale and delivery by the Company of the Securities to or
for the respective accounts of the Underwriters or (z) the sale and
delivery outside The Netherlands by the Underwriters of the Securities
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
Securities or ADNs are attributable, or to which or to whom the
Securities or ADNs 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 pursuant to the Terms Agreement have the
right to elect to take delivery of some or all of the Securities in the
form of ADNs, 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 ADNRs evidencing ADNs are issued in accordance with the
Deposit Agreement against the deposit, pursuant to the terms of the
Deposit Agreement, of duly authorized and validly issued Securities,
such ADNRs 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 and as
to the indemnification provisions of the Deposit Agreement.
(j) The Representatives shall have received from
_______________________, U.S. counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the validity of the
Securities, the Registration Statement, the ADN Registration Statement (if
applicable), 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) If the Representatives have the right to elect pursuant to the
Terms Agreement to take delivery of some or all of the Securities in the
form of ADNs, the Depositary shall have furnished or caused to be furnished
to the Representatives at the relevant Closing Date certificates
satisfactory to the Representatives evidencing the deposit with it of the
Securities being so deposited against issuance of ADNRs evidencing the ADNs
to be delivered by the Company at such Closing Date, and the execution,
countersignature (if applicable), issuance and delivery of ADNRs evidencing
such ADNs pursuant to the Deposit Agreement.
(l) The Representatives shall have received a certificate, dated the
Closing Date, of two officers of the Company satisfactory to the
Representatives in which such officers, to their knowledge, shall state
that 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 operation 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 ADN
Registration Statement (if applicable) 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 Securities 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 ADN Registration Statement (if applicable) 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 Securities. 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 Securities
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 Securities 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 Securities
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 Securities which it has agreed to purchase under
the Terms Agreement relating to such Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Securities 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 Securities, 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
Securities 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 Securities, or the Company notifies the Representatives that
it has so arranged for the purchase of such Securities, the Representatives or
the Company shall have the right to postpone the Closing Date for the Securities
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 Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Securities which remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of the Securities 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
principal amount of Securities which such Underwriter agreed to purchase at such
Closing Date under the Terms Agreement relating to such Securities and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the principal amount of Securities which such Underwriter agreed
to purchase under such Terms Agreement at such Closing Date) of the Securities
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 Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Securities which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of the Securities 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
Securities of a defaulting Underwriter or Underwriters, then the Terms Agreement
relating to such Securities 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 Securities. If the Terms Agreement is terminated pursuant to
Section 7 or if for any reason the purchase of the Securities 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 Securities
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 Securities,
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 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 Securities 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.
DEBT SECURITIES
TERMS AGREEMENT
---------------
--------- , ----
[Names and Addresses of Representatives]
Ladies and Gentlemen:
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 debt securities, of the Company specified in Schedule II
hereto (the "Securities"). 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 Securities 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 Securities 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 principal amount of Securities set forth opposite the
name of such Underwriter in Schedule I hereto.
[With respect to all or a portion of the Securities to be purchased
and sold by the several Underwriters, the Representatives may elect to have ADNs
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, Securities. 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 ADNs 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 ADNs and
the purchase price for any ADNs so delivered as a result of making such election
shall be the purchase price per ADN set out in Schedule II hereto. Except as the
context may otherwise require, references hereinafter to the Securities shall
include Securities in the form of ADNs.
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:
By:_________________________
On behalf of each of the Underwriters
Schedule I
Principal Amount of
Underwriter Securities to be Purchased
----------- --------------------------
----------------
Total............................ ================
Schedule II
TITLE OF SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes] [Debentures] due
AGGREGATE PRINCIPAL AMOUNT:
$------------
PRICE TO PUBLIC:
_____% of the principal amount of the Securities, plus accrued interest [,
if any,] from _________ to __________ [and accrued amortization, if any,
from __________ to ____________]
[If Securities may be issued in form of ADNs ___
may not be in $___________ Per ADN]
PURCHASE PRICE BY UNDERWRITERS:
_____% of the principal amount of the Securities, plus accrued interest
[,if any,] from _________ to __________ [and accrued amortization, if any,
from __________ to ____________]
[If Securities may be issued in form of ADNs ___
may not be in $___________ Per ADN]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[Federal funds] [NY clearinghouse]
RANKING [SENIOR] [SUBORDINATED]
INDENTURE:
Indenture, dated as of __________, [, as supplemented by ________,] between
the Company and [if senior debt securities -- The Chase Manhattan Bank] [if
subordinated debt securities - The Bank of New York], as Trustee
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
[If Securities may be issued in form of ADNs ___ Depositary for ADNs:
__________________________, pursuant to a Deposit Agreement dated as of
_______________, ___]
INTEREST PAYMENT DATES:
[months and dates]
REDEMPTION PROVISIONS:
The Securities may be redeemed, in whole but not in part, at the option of
the Company at their principal amount, together with accrued interest
thereon to the date of redemption, if as a result of any change in, or
amendment to, the laws or regulations of The Netherlands which becomes
effective after the date of the Indenture, the Company becomes, or will
become obligated to pay any Additional Amounts (as defined in the
Indenture) in respect of the Securities.
[No other provisions for redemption]
[The Securities may be redeemed, otherwise than through the sinking fund,
in whole or in part at the option of the Company, in the amount of $ _____
or an integral multiple thereof, on or after _________, _________ at the
following redemption prices (expressed in percentages of principal amount):
If [redeemed on or before _________, ___ %, and if] redeemed during the
12-month period beginning ___________,
Year Redemption
---- Price
----------
and thereafter at 100% of principal amount, together in each case with
accrued interest to the redemption date]
[on any interest payment date falling on or after ____________,
___________, at the election of the Company, at a redemption price equal to
the principal amount thereof, plus accrued interest to the date of
redemption].
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Securities are entitled to the benefit of a sinking fund to retire $
_______ principal amount of Securities on ______ in each of the years _____
through ____ at 100% of their principal amount plus accrued interest] [,
together with [cumulative] [non-cumulative] redemptions at the option of
the Company to retire an additional $ _________ principal amount of
Securities in the years ____ through ____ at 100% of their principal amount
plus accrued interest.]
[IF SECURITIES ARE EXTENDABLE DEBT SECURITIES, INSERT--
EXTENDABLE PROVISIONS:
Securities are repayable on ______, _____ [insert date and years], at the
option of the holder, at their principal amount with accrued interest.
Initial annual interest rate will be ___%, and thereafter annual interest
rate will be adjusted on ______, and _______ to a rate not less than ___ %
of the effective annual interest rate on U.S. Treasury obligations with
_________-year maturities as of the [insert date 15 days prior to maturity
date] prior to such [insert maturity date].]
[IF SECURITIES ARE FLOATING RATE DEBT SECURITIES, INSERT--
FLOATING RATE PROVISIONS:
Initial annual interest rate will be __% through ____________ [and
thereafter will be adjusted [monthly] [on each _____, ________, and
___________] [to an annual rate of ______ % above the average rate for
______ -year [month] [securities] [certificates of deposit] issued by
_________ and ___________________ [insert names of banks].] [and the annual
interest rate [thereafter] [from ______________ through ____________] will
be the interest yield equivalent of the weekly average per annum market
discount rate for _____-month Treasury bills plus ___% of Interest
Differential (the excess, if any, of (i) then current weekly average per
annum secondary market yield for ______-month certificates of deposit over
(ii) then current interest yield equivalent of the weekly average per annum
market discount rate for ______-month Treasury bills); [from _________ and
thereafter the rate will be the then current interest yield equivalent plus
____ % of Interest Differential].]
CLOSING DATE:
[Time and date]
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
ADDRESS FOR NOTICES, ETC.:
[Other Terms]
A description of particular tax, accounting or other unusual features of
the Securities should be set forth, or referenced to an attached and
accompanying description, if necessary to the issuer's understanding of the
transaction contemplated. Such a description might appropriately be in the form
in which such features will be described in the Prospectus for the offering.
newyork 346139 v8 [7f2z08!.DOC7f2z08!.DOC]
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.