AHOLD FINANCE U.S.A., INC.,
KONINKLIJKE AHOLD N.V.
and
-------------------------------
as Warrant Agent
WARRANT AGREEMENT
Dated as of __________, _____
THIS WARRANT AGREEMENT, dated as of __________, _____, among Ahold Finance
U.S.A., Inc., a corporation organized under the laws of the State of Delaware,
United States (the "Issuer"), Koninklijke Ahold N.V., a company duly organized
and existing under the laws of The Netherlands, with its corporate seat in
Zaandam (municipality Zaanstad), The Netherlands (the "Parent"), and __________,
a [corporation] [national banking association] organized and existing under the
laws of __________, as warrant agent (the "Warrant Agent").
WHEREAS, the Issuer and the Parent have entered into an Indenture dated as
of _________, ____ (the "Indenture"), with [if senior debt securities - The
Chase Manhattan Bank, a New York banking corporation] [if subordinated debt
securities - The Bank of New York, a New York banking corporation], as trustee
(the "Trustee"), providing for the issuance from time to time of the Issuer's
unsecured debentures, notes, bonds or other evidences of [senior] [subordinated]
indebtedness, to be issued in one or more series as provided in the Indenture;
WHEREAS, the Issuer proposes to sell warrant certificates (such warrant
certificates and other warrant certificates issued pursuant to this Agreement
herein called the "Warrant Certificates") evidencing one or more warrants (the
"Warrants" or, individually, a "Warrant") representing the right to purchase
[senior debt securities] [subordinated debt securities] (the "Warrant Debt
Securities");
WHEREAS, the Issuer and the Parent desire the Warrant Agent to act on
behalf of the Issuer, and the Warrant Agent is willing to so act, in connection
with the issuance, exchange, exercise and replacement of the Warrant
Certificates, and in this Agreement wishes to set forth, among other things, the
form and provisions of the Warrant Certificates and the terms and conditions on
which they may be issued, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the promises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE, EXECUTION AND COUNTERSIGNATURE
OF WARRANT CERTIFICATES
Section 1.01 Issuance of Warrant Certificates. Upon issuance, each Warrant
Certificate shall evidence one or more Warrants. Each Warrant evidenced thereby
shall represent the right, subject to the provisions contained herein and
therein, to purchase Warrant Debt Securities in the aggregate principal amount
of $__________.
Section 1.02 Form of Warrant Certificates. The Warrant Certificates
(including the Form of Exercise and Assignment to be set forth on the reverse
thereof) shall be in substantially the form set forth in Exhibit A hereto, shall
be printed, lithographed or engraved on steel engraved borders (or in any other
manner determined by the officers executing such Warrant Certificates, as
evidenced by their execution of such Warrant Certificates) and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or with
any rule or regulation made pursuant thereto or with any rule or regulation of
any securities exchange on which the Warrant Certificates may be listed or as
may, consistently herewith, be determined by the officers executing such Warrant
Certificates, as evidenced by their execution of the Warrant Certificates.
Section 1.03 Execution and Countersignature of Warrant Certificates. The
Warrant Certificates shall be executed in the name of the Issuer by its
president or any vice-president of the Issuer. Such signature may be the manual
or facsimile signatures of the present or any future such officers.
Warrant Certificates evidencing the right to purchase an aggregate
principal amount not exceeding $__________ (except as provided in Sections 1.04,
2.03(c), 3.01 and 3.02) may be executed by the Issuer and delivered to the
Warrant Agent upon the execution of this Warrant Agreement or from time to time
thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates duly
executed in the name of the Issuer, countersign Warrant Certificates evidencing
Warrants representing the right to purchase up to such aggregate principal
amount of Warrant Debt Securities and shall deliver such Warrant Certificates to
or upon the order of the Issuer. Subsequent to such original issuance of the
Warrant Certificates, the Warrant Agent shall countersign a Warrant Certificate
only if the Warrant Certificate is issued in exchange or substitution for one or
more previously countersigned Warrant Certificates or in connection with their
transfer, as hereinafter provided.
Each Warrant Certificate shall be dated the date of its countersigning by
the Warrant Agent.
No Warrant Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, and no Warrant evidenced
thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Issuer shall be
conclusive evidence, and the only evidence, that the Warrant Certificate so
countersigned has been duly issued hereunder.
Warrant Certificates bearing the manual or facsimile signatures of
individuals who were at the time of issuance of the Warrant Certificates the
proper officers of the Issuer shall bind the Issuer, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
countersigning and delivery of such Warrant Certificates or did not hold such
offices at the date of such Warrant Certificates.
Section 1.04 Temporary Warrant Certificates. Pending the preparation of
definitive Warrant Certificates, the Issuer may execute, and upon the order of
the Issuer the Warrant Agent shall countersign and deliver, temporary Warrant
Certificates which are printed, lithographed, typewritten, mimeographed or
otherwise produced substantially of the tenor of the definitive Warrant
Certificates in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, as evidenced by their
execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Issuer will cause
definitive Warrant Certificates to be prepared without unreasonable delay. After
the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent [or ___], without charge to the Holder (as defined in Section
1.06 below). Upon surrender for cancellation of any one or more temporary
Warrant Certificates the Issuer shall execute and the Warrant Agent shall
countersign and deliver in exchange therefor definitive Warrant Certificates
representing the same aggregate number of Warrants. Until so exchanged, the
temporary Warrant Certificates shall in all respects be entitled to the same
benefits under this Agreement as definitive Warrant Certificates.
Section 1.05 Payment of Taxes. The Parent shall cause the Issuer to pay all
stamp taxes and other duties, if any, to which, under the laws of the United
States of America or any state or political subdivision thereof, or the laws of
The Netherlands or any political subdivision thereof, this Agreement or the
original issuance of the Warrant Certificates may be subject.
Section 1.06 Definition of Holder. [If Warrant Certificates are in
registered form, insert - The term "Holder" as used herein shall mean the person
in whose name at the time such Warrant Certificate shall be registered upon the
books to be maintained by the Warrant Agent for that purpose pursuant to Section
3.01.] [If Warrant Certificates are in bearer form, insert appropriate
provisions.]
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.01 Warrant Price.1 During the period from __________, _____
through and including __________, _____, each Warrant shall entitle the Holder
thereof, subject to the provisions of this Agreement, to purchase from the
Issuer the principal amount of Warrant Debt Securities stated in the Warrant
Certificate at the exercise price of _____% of the principal amount thereof
[plus accrued amortization, if any, of the original issue discount of the
Warrant Debt Securities] [plus accrued interest, if any, from the most recent
date from which interest shall have been paid on the Warrant Debt Securities or,
if no interest shall have been paid on the Warrant Debt Securities, from
__________, _____]. During the period from __________, _____ through and
including __________, _____, each Warrant shall entitle the Holder thereof,
subject to the provisions of this Agreement, to purchase from the Issuer the
principal amount of Warrant Debt Securities stated in the Warrant Certificate at
the exercise price of _____% of the principal amount thereof [plus accrued
amortization, if any, of the original issue discount of the Warrant Debt
Securities] [plus accrued interest, if any, from the most recent date from which
interest shall have been paid on the Warrant Debt Securities, from __________,
_____]. [In each case, the original issue discount ($__________ for each $1,000
principal amount of Warrant Debt Securities) will be amortized at a $__________
annual rate, computed on a[n] [semi-] annual basis [using a 360-day year
consisting of twelve 30-day months].] Such exercise price of each Warrant is
referred to in this Agreement as the "Exercise Price."
(1) Complete and modify the provisions of this Section as appropriate to
reflect the exact terms of the Warrants and the Warrant Debt Securities.
Insert redemption provisions if applicable.
Section 2.02 Duration of Warrants. Any Warrant evidenced by a Warrant
Certificate may be exercised at any time, as specified herein, on or after [the
date thereof] [__________, ____] and at or before 5:00 p.m., New York City time,
on __________, ____ (the "Expiration Date"). Each Warrant not exercised at or
before 5:00 p.m., New York City time, on the Expiration Date shall become void,
and all rights of the Holder of the Warrant Certificate evidencing such Warrant
under this Agreement or otherwise shall cease.
Section 2.03 Exercise of Warrants. (a) During the period specified in
Section 2.02, any whole number of Warrants may be exercised by surrendering the
Warrant Certificate evidencing such Warrants at the place or at the places set
forth in the Warrant Certificate, with the purchase form set forth in the
Warrant Certificate duly executed, accompanied by payment in full, in lawful
money of the United States of America, [in cash or by certified check or
official bank check in New York Clearing House funds] [by bank wire transfer in
immediately available funds], of the Exercise Price for each Warrant exercised.
The date on which payment in full of the Exercise Price for a Warrant and the
duly executed and completed Warrant Certificate are received by the Warrant
Agent shall be deemed to be the date on which such Warrant is exercised. The
Warrant Agent shall deposit all funds received by it as payment for the exercise
of Warrants to the account of the Issuer maintained with it for such purpose and
shall advise the Parent and the Issuer by telephone at the end of each day on
which such a payment is received of the amount so deposited to its account. The
Warrant Agent shall promptly confirm such telephonic advice to the Parent and
the Issuer in writing.
(b) The Warrant Agent shall from time to time, as promptly as practicable
after the exercise of any Warrants in accordance with the terms and conditions
of this Agreement and the Warrant Certificates, advise the Issuer of (i) the
number of Warrants so exercised, (ii) the instructions of each Holder of the
Warrant Certificates evidencing such Warrants with respect to delivery of the
Warrant Debt Securities to which such Holder is entitled upon such exercise, and
instructions of such Holder as to delivery of Warrant Certificates evidencing
the balance, if any, of the Warrants remaining after such exercise, and (iii)
such other information as the Issuer shall reasonably require.
(c) As soon as practicable after the exercise of any Warrants, the Issuer
shall issue, pursuant to the Indenture, in authorized denominations, to or upon
the order of the Holder of the Warrant Certificate evidencing such Warrants, the
Warrant Debt Security or Warrant Debt Securities to which such Holder is
entitled [If Warrant Certificates are in registered form, insert -, registered
in such name or names as may be directed by such Holder]; and, if fewer than all
of the Warrants evidenced by such Warrant Certificate were exercised, the Issuer
shall execute and an authorized officer of the Warrant Agent shall manually
countersign and deliver a new Warrant Certificate evidencing the number of
Warrants remaining unexercised.
(d) The Issuer shall not be required to pay any stamp or other tax or other
governmental charge required to be paid in connection with any transfer involved
in the issuance of the Warrant Debt Securities; and in the event that any such
transfer is involved, the Issuer shall not be required to issue or deliver any
Warrant Debt Securities until such tax or other charge shall have been paid or
it has been established to the Issuer's satisfaction that no such tax or other
charge is due.
ARTICLE III.
[REGISTRATION,] EXCHANGE, TRANSFER AND SUBSTITUTION OF
WARRANT CERTIFICATES
Section 3.01 [Registration;] Exchange and Transfer of Warrant Certificates.
[If Warrant Certificates are in registered form, insert - The Warrant Agent
shall keep, at its corporate trust office [and at __________], books in which,
subject to such reasonable regulations as it may prescribe, it shall register
Warrant Certificates and transfers of outstanding Warrant Certificates. Upon
surrender at the corporate trust office of the Warrant Agent [or __________] of
Warrant Certificates properly endorsed, accompanied by appropriate instruments
of transfer and accompanied by written instructions for transfer or exchange,
all in form satisfactory to the Issuer and the Warrant Agent, such Warrant
Certificates may be exchanged for other Warrant Certificates or may be
transferred in whole or in part; provided that Warrant Certificates issued in
exchange for or upon transfer of surrendered Warrant Certificates shall evidence
the same aggregate number of Warrants as the Warrant Certificates so
surrendered. No service charge shall be made for any exchange or transfer of
Warrant Certificates, but the Issuer may require payment of a sum sufficient to
cover any stamp or other tax or governmental charge that may be imposed in
connection with any such exchange or transfer. Whenever any Warrant Certificates
are so surrendered for exchange or transfer, the Issuer shall execute and an
authorized officer of the Warrant Agent shall manually countersign and deliver
to the person or persons entitled thereto a Warrant Certificate or Warrant
Certificates as so requested. The Warrant Agent shall not be required to effect
any exchange or transfer which would result in the issuance of a Warrant
Certificate evidencing a fraction of a Warrant or a number of full Warrants and
a fraction of a Warrant. All Warrant Certificates issued upon any exchange or
transfer of Warrant Certificates shall evidence the same obligations, and be
entitled to the same benefits under this Agreement, as the Warrant Certificates
surrendered for such exchange or transfer. [If Warrant Certificates are in
bearer form, insert appropriate provisions.]
Section 3.02 Mutilated, Destroyed, Lost or Stolen Warrant Certificates. If
any mutilated Warrant Certificate is surrendered to the Warrant Agent, the
Issuer shall execute and an officer of the Warrant Agent shall manually
countersign and deliver in exchange therefor a new Warrant Certificate of like
tenor and bearing a number not contemporaneously outstanding. If there shall be
delivered to the Issuer and the Warrant Agent (i) evidence to their satisfaction
of the destruction, loss or theft of any Warrant Certificate and of the
ownership thereof and (ii) such security or indemnity as may be required by them
to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Issuer or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Issuer shall execute
and upon its request an officer of the Warrant Agent shall manually countersign
and deliver, in lieu of any such destroyed, lost or stolen Warrant Certificate,
a new Warrant Certificate of like tenor and bearing a number not
contemporaneously outstanding. Upon the issuance of any new Warrant Certificate
under this Section, the Issuer may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Warrant
Agent) connected therewith. Every new Warrant Certificate issued pursuant to
this Section in lieu of any destroyed, lost or stolen Warrant Certificate shall
evidence an original additional contractual obligation of the Issuer, whether or
not the destroyed, lost or stolen Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Agreement equally and proportionately with any and all other Warrant
Certificates duly issued hereunder. The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Warrant Certificates.
Section 3.03 Persons Deemed Owners. [If Warrant Certificates are in
registered form, insert - Prior to due presentment of a Warrant Certificate for
registration of transfer, the Issuer, the Warrant Agent and all other persons
may treat the Holder as the owner thereof for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced thereby,
any notice to the contrary notwithstanding.] [If Warrant Certificates are in
bearer form, insert appropriate provisions.]
Section 3.04 Cancellation of Warrant Certificates. Any Warrant Certificate
surrendered for exchange, transfer or exercise of the Warrants evidenced thereby
shall, if surrendered to the Issuer, be delivered to the Warrant Agent, and all
Warrant Certificates surrendered or so delivered to the Warrant Agent shall be
promptly canceled by it and shall not be reissued and, except as expressly
permitted by this Agreement, no Warrant Certificate shall be issued hereunder in
lieu or in exchange thereof. The Issuer may at any time deliver to the Warrant
Agent for cancellation any Warrant Certificates previously issued hereunder
which the Issuer may have acquired in any manner whatsoever, and all Warrant
Certificates so delivered shall be promptly canceled by the Warrant Agent. All
canceled Warrant Certificates held by the Warrant Agent shall be destroyed by
it, unless the Issuer requests by written order that such canceled Certificates
be returned to the Issuer. [If Warrant Certificates are in bearer form, insert
appropriate provision.]
ARTICLE IV.
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
Section 4.01 No Rights as Holders of Warrant Debt Securities Conferred by
Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the Holder thereof to any of the rights of a Holder of the
Warrant Debt Securities, including, without limitation, the right to receive the
payment of principal of (or premium, if any) or interest, if any, on the Warrant
Debt Securities or to enforce any of the covenants in the Indenture.
Section 4.02 Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any Holder of any
Warrant Certificate, without the consent of the Warrant Agent, any stockholder
or the Holder of any other Warrant Certificate, may, in such Holder's own behalf
and for his own benefit, enforce, and may institute and maintain any suit,
action or proceeding against the Issuer suitable to enforce or otherwise in
respect of, such Holder's right to exercise the Warrant or Warrants evidenced by
such Holder's Warrant Certificate in the manner provided in the Warrant
Certificates and in this Agreement.
ARTICLE V.
CONCERNING THE WARRANT AGENT
Section 5.01 Warrant Agent. The Issuer hereby appoints __________ as
Warrant Agent of the Issuer in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth, and
__________ hereby accepts such appointment. The Warrant Agent shall have the
power and authority granted to and conferred upon it in the Warrant Certificates
and hereby and such further power and authority to act in the name of the Issuer
as the Issuer may hereafter grant to or confer upon it. All of the terms and
provisions with respect to such power and authority contained in the Warrant
Certificates are subject to and governed by the terms and provisions hereof.
Section 5.02 Conditions of Warrant Agent's Obligations. The Warrant Agent
accepts its obligations herein set forth, upon the terms and conditions hereof,
including the following, to all of which the Issuer agrees and to all of which
the rights hereunder of the Holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Issuer agrees (and the
Parent agrees to cause the Issuer) to promptly pay the Warrant Agent the
compensation to be agreed upon with the Issuer for all services rendered by
the Warrant Agent and to reimburse the Warrant Agent for reasonable
out-of-pocket expenses (including counsel fees) incurred by the Warrant
Agent in connection with the services rendered hereunder by the Warrant
Agent. The Parent also agrees to cause the Issuer to indemnify the Warrant
Agent for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Warrant Agent,
arising out of or in connection with its acting as such Warrant Agent
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance at any
time of its powers or duties hereunder. The obligations of the Parent and
the Issuer under this subsection (a) shall survive the exercise of the
Warrant Certificates and the resignation or removal of the Warrant Agent.
(b) Agent for the Issuer. In acting under this Warrant Agreement and
in connection with the Warrant Certificates, the Warrant Agent is acting
solely as agent of the Issuer and does not assume any obligation or
relationship of agency or trust for or with any of the owners or Holders of
the Warrant Certificates.
(c) Counsel. The Warrant Agent may consult with counsel, which may
include counsel for the Issuer, and the written advice of such counsel
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(d) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or omitted by it in
reliance upon any Warrant Certificates, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the
proper parties.
(e) Certain Transactions. The Warrant Agent, any of its officers,
directors and employees, or any other agent of the Issuer or the Parent, in
its individual or any other capacity, may become the owner of, or acquire
any interest in, any Warrant Certificates, with the same rights that it
would have if it were not such Warrant Agent, officer, director, employee
or other agent, and, to the extent permitted by applicable law, it may
engage or be interested in any financial or other transaction with the
Issuer and may act on, or as depositary, trustee or agent for, any
committee or body of holders of Warrant Debt Securities or other
obligations of the Issuer as freely as if it were not such Warrant Agent.
(f) No Liability for Interest. The Warrant Agent shall not be under
any liability for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement or of the Warrant
Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall not incur any
liability with respect to the validity of this Agreement or any of the
Warrant Certificates.
(h) No Responsibility for Representations. The Warrant Agent shall not
be responsible for any of the Recitals or representations contained herein
or in the Warrant Certificates (except as to the Warrant Agent's
Certificate of Authentication thereon), all of which are made solely by the
Issuer.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read
into this Agreement or the Warrant Certificates against the Warrant Agent.
The Warrant Agent shall not be under any obligation to take any action
hereunder which may tend to involve it in any expense or liability, the
payment of which within a reasonable time is not, in its reasonable
opinion, assured to it. The Warrant Agent shall not be accountable or under
any duty or responsibility for the use by the Issuer of any of the Warrant
Certificates countersigned by the Warrant Agent and delivered by it to the
Issuer pursuant to this Agreement or for the application by the Issuer of
the proceeds of the Warrant Certificates or any exercise of the Warrants
evidenced thereby. The Warrant Agent shall have no duty or responsibility
in case of any default by the Issuer in the performance of its covenants or
agreements contained herein or in the Warrant Certificates or in the case
of the receipt of any written demand from a Holder of a Warrant Certificate
with respect to such default, including, without limiting the generality of
the foregoing, any duty or responsibility to initiate or attempt to
initiate any proceedings at law or otherwise or, except as provided in
Section 6.04 hereof, to make any demand upon the Issuer.
Section 5.03 Resignation, Removal and Appointment of Successor. (a) The
Issuer agrees, for the benefit of the Holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all of the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Issuer of such intention on its part, specifying the date
on which it desires its resignation to become effective; provided that, without
the consent of the Issuer, such date shall not be less than three months after
the date on which such notice is given. The Warrant Agent hereunder may be
removed at any time by the delivery to it of an instrument in writing signed by
or in the name of the Issuer and specifying such removal and the date on which
the Issuer expects such removal to become effective. Such resignation or removal
shall take effect upon the appointment by the Issuer of a successor Warrant
Agent (which shall be a bank or trust Company organized and doing business under
the laws of the United States of America, any State thereof or the District of
Columbia and authorized under such laws to exercise corporate trust powers) by
an instrument in writing delivered to such successor Warrant Agent and the
acceptance of such appointment by such successor Warrant Agent pursuant to
Section 5.03(d).
(c) In case at any time the Warrant Agent shall resign, or be removed, or
shall become incapable of acting, or shall be adjudged a bankrupt or insolvent,
or shall file a voluntary petition in bankruptcy or make an assignment for the
benefit of its creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a receiver
or custodian of it or of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered approving any petition
filed by or against it under the provisions of any applicable bankruptcy or
similar law, or if any public officer shall have taken charge or control of the
Warrant Agent or of its property or affairs, a successor Warrant Agent,
qualified as aforesaid, shall be appointed by the Issuer by an instrument
delivered to the successor Warrant Agent. Upon appointment as aforesaid of a
successor Warrant Agent acceptance by the latter of such appointment, the
previous Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Issuer an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any entity into which the Warrant Agent hereunder may be merged or
converted or any entity with which the Warrant Agent may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Warrant Agent shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Warrant Agent, shall be
the successor Warrant Agent under this Agreement without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
provided that such successor Warrant Agent shall be qualified as aforesaid.
ARTICLE VI.
MISCELLANEOUS
Section 6.01 Consolidations and Mergers of the Issuer or the Parent and
Sales, Leases and Conveyances Permitted Subject to Certain Conditions. (a) The
Issuer may consolidate with, or sell, lease or convey all or substantially all
of its assets to, or merge with or into any other entity, provided that in any
such case, either the Issuer shall be the continuing corporation, or the
successor entity shall expressly assume the obligations of the Issuer hereunder
and under the Warrants.
(b) The Parent may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into any other entity,
provided that in any such case, either the Parent shall be the continuing
corporation, or the successor entity shall expressly assume the obligations of
the Parent hereunder.
Section 6.02 Rights and Duties of Successor Entity. In case of any such
consolidation, merger, sale, lease or conveyance and upon any such assumption by
the successor entity, such successor entity shall succeed to and be substituted
for the Issuer or the Parent, as the case may be, with the same effect as if it
had been named herein, and the predecessor entity, except in the event of a
lease, shall be relieved of any further obligation under this Agreement and the
Warrants. Any successor entity to the Issuer thereupon may cause to be signed,
and may issue either in its own name or in the name of the Issuer, any or all of
the Warrant Certificates or the Warrant Debt Securities issuable pursuant to the
terms hereof.
Section 6.03 Amendment. (a) This Agreement may be amended or supplemented
by the parties hereto, without the consent of the Holder of any Warrant
Certificate, for the purpose of curing any ambiguity, or curing, correcting or
supplementing any defective provision contained herein or in the Warrants, or
making such provisions in regard to any matters or questions arising under this
Agreement or the Warrants as the Issuer may deem necessary or desirable;
provided that (i) the written consent of the Holders of a majority of the
Warrant Certificates issued hereunder shall be required for any amendment or
supplement to this Agreement which materially and adversely affects the rights
of any Holder of any Warrant Certificate and (ii) the written consent of each
Holder of the Warrants thereby affected shall be required for any amendment or
supplement to this Agreement that (A) increases the Exercise Price for the
Warrants, (B) shortens the period during which the Warrants may be exercised,
[if applicable - (C) reduces the price at which the Warrants may be redeemed by
the Issuer,] or [(C)][(D)] materially and adversely affects the exercise rights
of any Holder of any Warrant Certificate.
(b) The Warrant Agent may, but shall not be obligated to, enter into any
amendment to this Agreement which affects the Warrant Agent's own rights, duties
or immunities under this Agreement or otherwise.
Section 6.04 Notices and Demands to the Issuer and Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to the Issuer by the
Holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Issuer.
Section 6.05 Addresses. Any communications from the Issuer or the Parent to
the Warrant Agent with respect to this Agreement shall be addressed to
__________, Attention: __________ (or such other address as shall be specified
in writing to the Issuer and the Parent by the Warrant Agent). Any
communications from the Warrant Agent to the Issuer with respect to this
Agreement shall be addressed to Ahold Finance U.S.A., Inc., One Atlanta Plaza,
950 East Paces Ferry Road, Suite 2575, Atlanta, Georgia, 30326, Attention:
Treasurer (or such other address as shall be specified in writing to the Warrant
Agent by the Issuer). Any communications from the Warrant Agent to the Parent
with respect to this Agreement shall be addressed to Koninklijke Ahold N.V.,
Albert Heijnweg 1, 1507 EH Zaandam, The Netherlands, Attention, Treasurer (or
such other address as shall be specified in writing to the Warrant Agent by the
Parent).
Section 6.06 Governing Law. This Agreement and each Warrant Certificate
issued hereunder shall be governed by and construed in accordance with the laws
of the State of New York.
Section 6.07 Delivery of Prospectus. The Issuer will furnish to the Warrant
Agent sufficient copies of a prospectus, appropriately supplemented, relating to
the Warrant Debt Securities (the "Prospectus"), and the Warrant Agent agrees
that, upon the exercise of any Warrant, the Warrant Agent will deliver to the
person designated to receive a Warrant Debt Security, prior to or concurrently
with the delivery of such securities, a Prospectus.
Section 6.08 Obtaining of Governmental Approvals. The Issuer will from time
to time take all action which may be necessary to obtain and keep effective any
and all permits, consents and approvals of governmental agencies and authorities
and securities acts filings under the laws of The Netherlands and under United
States federal and state laws (including, without limitation, the maintenance of
the effectiveness of a registration statement in respect of the Warrant Debt
Securities under the Securities Act of 1933, as amended), which may be or become
required in connection with exercise of Warrants and the original issuance and
delivery of the Warrant Debt Securities in connection with such exercise.
Section 6.09 Persons Having Rights under Warrant Agreement. Nothing in this
Agreement expressed or implied and nothing that may be inferred from any of the
provisions hereof is intended, or shall be construed, to confer upon, or give
to, any person or corporation other than the Issuer, the Parent, the Warrant
Agent and the Holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement or of any covenant, condition, stipulation,
promise or agreement hereof; and all covenants, conditions, stipulations,
promises and agreements contained in this Agreement shall be for the sole and
exclusive benefit of the Issuer, the Parent and the Warrant Agent and their
successors and of the Holders of the Warrant Certificates.
Section 6.10 Headings. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
Section 6.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original; but
such counterparts shall together constitute but one and the same instrument.
Section 6.12 Inspection of Agreement. A copy of this Agreement shall be
available at all reasonable times at the principal corporate trust office of the
Warrant Agent [and at __________] for inspection by the Holder of any Warrant
Certificate. The Warrant Agent may require such Holder to submit such Holder's
Warrant Certificate for inspection by it.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
AHOLD FINANCE U.S.A. INC.
By:__________________________________
Name:
Title:
KONINKLIJKE AHOLD N.V.
By:__________________________________
Name:
Title:
[WARRANT AGENT]
By:__________________________________
Name:
Title:
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[Face]
Form of Legend if offered Debt Securities [Prior to __________,
with Warrants which are not immediately this Warrant Certificate
detachable: may be transferred or
exchanged if and only
if the [Title of Debt
Security] to which it was
initially attached is so
transferred or exchanged.]
Form of Legend if Warrants are not [Prior to __________,
immediately exercisable: Warrants evidenced by this
Warrant Certificate cannot
be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER 5:00 P.M., NEW YORK CITY TIME, ON __________, ____
AHOLD FINANCE U.S.A. INC.
Warrant Certificate representing
Warrants to purchase
[Title of Warrant Debt Securities]
as described herein.
_______________
No. ________ Warrants
This certifies that __________ is the Holder of the number of Warrants
indicated above, each Warrant entitling such Holder to purchase, at any time
[after 5:00 p.m., New York City time, on __________, _____, and] on or before
5:00 p.m., New York City time, on __________, _____, $ __________, principal
amount of [Title of Warrant Debt Securities] (the "Warrant Debt Securities") of
Ahold Finance U.S.A. Inc., (the "Issuer"), issued or to be issued under the
Indenture hereinafter defined), on the following basis.2 [During the period from
__________, _____ through and including __________, _____, each Warrant shall
entitle the Holder thereof, subject to the provisions of this Agreement, to
purchase from the Issuer the principal amount of Warrant Debt Securities stated
in the Warrant Certificate at the exercise price of _____% of the principal
amount thereof [plus accrued amortization, if any, of the original issue
discount of the Warrant Debt Securities] [plus accrued interest, if any, from
the most recent date from which interest shall have been paid on the Warrant
Debt Securities or, if no interest shall have been paid on the Warrant Debt
Securities, from __________, _____, ]; during the period from __________, _____
through and including __________, _____, each Warrant shall entitle the Holder
thereof, subject to the provisions of this Agreement, to purchase from the
Issuer the principal amount of Warrant Debt Securities stated in the Warrant
Certificate at the exercise price of _____% of the principal amount thereof
[plus accrued amortization, if any, of the original issue discount of the
Warrant Debt Securities] [plus accrued interest, if any, from the most recent
date from which interest shall have been paid on the Warrant Debt Securities or,
if no interest shall have been paid on the Warrant Debt Securities, from
__________, _____.] [In each case, the original issue discount ($ __________ for
each $1,000 principal amount of Warrant Debt Securities) will be amortized at a
_____% annual rate, computed on a[n] [semi]-annual basis [, using a 360-day year
consisting of twelve 30-day months]] (the "Exercise Price"). The Holder of this
Warrant Certificate may exercise the Warrants evidenced hereby, in whole or in
part, by surrendering this Warrant Certificate, with the purchase form set forth
hereon duly completed, accompanied by payment in full, in lawful money of the
United States of America, [in cash or by certified check or official bank check
in New York Clearing House funds or by bank wire transfer in immediately
available funds], the Exercise Price for each Warrant exercised, to the Warrant
Agent (as hereinafter defined), at the corporate trust office of [name of
Warrant Agent], or its successor as warrant agent (the "Warrant Agent") [or at
__________], at the addresses specified on the reverse hereof and upon
compliance with and subject to the conditions set forth herein and in the
Warrant Agreement (as hereinafter defined). This Warrant Certificate may be
exercised only for the purchase of Warrant Debt Securities in the principal
amount of [$1,000] or any integral multiple thereof.
(2) Complete and modify the following provisions as appropriate to reflect the
terms of the Warrants and the Warrant Debt Securities.
[If Warrant Certificates are in registered form, insert - The term "Holder"
as used herein shall mean the person in whose name at the time such Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 3.01.] [If Warrant Certificates are
in bearer form, insert appropriate provisions.]
Any whole number of Warrants evidenced by this Warrant Certificate may be
exercised to purchase Warrant Debt Securities. Upon any exercise of fewer than
all of the Warrants evidenced by this Warrant Certificate, there shall be issued
to the Holder hereof a new Warrant Certificate evidencing the number of Warrants
remaining unexercised.
This Warrant Certificate is issued under and in accordance with the Warrant
Agreement dated as of __________, _____ (the "Warrant Agreement"), between the
Issuer, Koninklijke Ahold N.V. and the Warrant Agent and is subject to the terms
and provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance hereof.
Copies of the Warrant Agreement are on file at the above-mentioned office of the
Warrant Agent [and at __________].
The Warrant Debt Securities to be issued and delivered upon the exercise of
Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an Indenture, dated as of _________, ___ (the "Indenture"),
between the Issuer and [if senior debt securities - The Chase Manhattan Bank, a
New York banking corporation] [if subordinated debt securities - The Bank of New
York, a New York banking corporation], as trustee (such trustee, and any
successors to such trustee, the "Trustee") and will be subject to the terms and
provisions contained in the Warrant Debt Securities and in the Indenture. Copies
of the Indenture, including the form of the Warrant Debt Securities, are on file
at the corporate trust office of the Trustee [and at __________].
[If Warrant Certificates are in registered form, insert - This Warrant
Certificate, and all rights hereunder, may be transferred when surrendered at
the corporate trust office of the Warrant Agent [or __________] by the
registered owner or his assigns, in person or by an attorney duly authorized in
writing, in the manner and subject to the limitations provided in the Warrant
Agreement.] [If Warrant Certificates are in bearer form, insert appropriate
provisions.]
After countersignature by the Warrant Agent and prior to the expiration of
this Warrant Certificate, this Warrant Certificate may be exchanged at the
corporate trust office of the Warrant Agent [or at __________] for Warrant
Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the Holder hereof to any of the
rights of a registered holder of the Warrant Debt Securities, including, without
limitation, the right to receive payments of principal of (and premium, if any)
or interest, if any, on the Warrant Debt Securities or to enforce any of the
covenants of the Indenture.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall not be valid or obligatory for any purpose
until validly countersigned by the Warrant Agent.
IN WITNESS WHEREOF, the Issuer has caused this Warrant Certificate to be
duty executed.
Dated: __________, _____
AHOLD FINANCE U.S.A., INC.
By:__________________________________
Name:
Title:
____________________
As Warrant Agent
By: ____________________
Authorized Signature
[REVERSE] [FORM OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby, the Holder of this Warrant
Certificate must pay [in cash or by certified check or official bank check in
New York Clearing House funds or by bank wire transfer in immediately available
funds], the Exercise Price in full for each of the Warrants exercised, to
__________, Corporate Trust Department, __________, Attn: __________ [or
__________], which payment should specify the name of the Holder of this Warrant
Certificate and the number of Warrants exercised by such Holder. In addition,
the Holder of this Warrant Certificate should complete the information required
below and present in person or mail by registered mail this Warrant Certificate
to the Warrant Agent at the addresses set forth below.
[FORM OF EXERCISE)
(To be executed upon exercise of Warrants.)
The undersigned hereby irrevocably elects to exercise Warrants, represented
by this Warrant Certificate, to purchase __________principal amount of the
[Title of Warrant Debt Securities] (the "Warrant Debt Securities") of Ahold
Finance U.S.A. Inc. and represents that payment has been tendered for such
Warrant Debt Securities [in cash or by certified check or official bank check in
New York Clearing House funds or by bank wire transfer in immediately available
funds] to the order of Ahold Finance U.S.A. Inc., c/o Treasurer, in the amount
of __________ in accordance with the terms hereof. The undersigned requests that
said principal amount of Warrant Debt Securities be in the authorized
denominations, [registered in such names] and delivered, all as specified in
accordance with the instructions set forth below.
If said principal amount of Warrant Debt Securities is less than all of the
Warrant Debt Securities purchasable hereunder, the undersigned requests that a
new Warrant Certificate representing the remaining balance of the Warrants
evidenced hereby be issued and delivered to the undersigned unless otherwise
specified in the instructions below.
Dated:
Name ________________________
(Please Print)
_______________________
(Insert Social Security or
other Identifying Number of
Holder)
Address ______________________
_____________________________
Signature
_____________________
(Signature must conform in all respects
to name of holder as specified on the
face of this Warrant Certificate and must
bear a signature guarantee by a bank or
trust company.)
This Warrant may be exercised at the following addresses:
By hand at
_________________________
_________________________
_________________________
_________________________
By mail at
_________________________
_________________________
_________________________
_________________________
________________________