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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 2
TO
SCHEDULE 14D-1
Tender Offer Statement
Pursuant to Section 14(d)(1) of the Securities Exchange Act of 1934
Supermarkets General Holdings Corporation
(Name of Subject Company)
Koninklijke Ahold N.V. (Royal Ahold)
Croesus, Inc.
Ahold U.S.A., Inc.
Ahold Acquisition, Inc.
(Bidders)
$3.52 Cumulative Exchangeable Redeemable Preferred Stock,
par value $0.01 per share
(Title of Class of Securities)
86844620
(CUSIP Number of Class of Securities)
Mr. Paul P.J. Butzelaar
Koninklijke Ahold N.V.
Albert Heijnweg 1
1507 EH Zaandam, The Netherlands
011-31-75-659-5671
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidder)
Copy to:
John M. Reiss, Esq.
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
(212) 819-8200
<PAGE>
SCHEDULE 14D-1
- ---------------------------------
CUSIP No. 86844620
- ---------------------------------
- -------- -----------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Koninklijke Ahold N.V.
- -------- -----------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
( ) (a)
(X) (b)
- -------- -----------------------------------------------------------------------
3 SEC USE ONLY
- -------- -----------------------------------------------------------------------
4 SOURCE OF FUNDS
N/A
- -------- -----------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(e) or 2(f)
( )
- -------- -----------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
The Netherlands
- -------- -----------------------------------------------------------------------
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- -------- -----------------------------------------------------------------------
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
CERTAIN SHARES
( )
- -------- -----------------------------------------------------------------------
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
0.0%
- -------- -----------------------------------------------------------------------
10 TYPE OF REPORTING PERSON
CO
- -------- -----------------------------------------------------------------------
<PAGE>
SCHEDULE 14D-1
- ---------------------------------
CUSIP No. 86844620
- ---------------------------------
- -------- -----------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Croesus, Inc.
- -------- -----------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
( ) (a)
(X) (b)
- -------- -----------------------------------------------------------------------
3 SEC USE ONLY
- -------- -----------------------------------------------------------------------
4 SOURCE OF FUNDS
BK
- -------- -----------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(e) or 2(f)
( )
- -------- -----------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Delaware
- -------- -----------------------------------------------------------------------
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- -------- -----------------------------------------------------------------------
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
CERTAIN SHARES
( )
- -------- -----------------------------------------------------------------------
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
0.0%
- -------- -----------------------------------------------------------------------
10 TYPE OF REPORTING PERSON
CO
- -------- -----------------------------------------------------------------------
<PAGE>
SCHEDULE 14D-1
- ---------------------------------
CUSIP No. 86844620
- ---------------------------------
- -------- -----------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Ahold U.S.A., Inc.
- -------- -----------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
( ) (a)
(X) (b)
- -------- -----------------------------------------------------------------------
3 SEC USE ONLY
- -------- -----------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
- -------- -----------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(e) or 2(f)
( )
- -------- -----------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Delaware
- -------- -----------------------------------------------------------------------
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- -------- -----------------------------------------------------------------------
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
CERTAIN SHARES
( )
- -------- -----------------------------------------------------------------------
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
0.0%
- -------- -----------------------------------------------------------------------
10 TYPE OF REPORTING PERSON
CO
- -------- -----------------------------------------------------------------------
<PAGE>
SCHEDULE 14D-1
- ---------------------------------
CUSIP No. 86844620
- ---------------------------------
- -------- -----------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Ahold Acquisition, Inc.
- -------- -----------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
( ) (a)
(X) (b)
- -------- -----------------------------------------------------------------------
3 SEC USE ONLY
- -------- -----------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
- -------- -----------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(e) or 2(f)
( )
- -------- -----------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Delaware
- -------- -----------------------------------------------------------------------
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- -------- -----------------------------------------------------------------------
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
CERTAIN SHARES
( )
- -------- -----------------------------------------------------------------------
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
0.0%
- -------- -----------------------------------------------------------------------
10 TYPE OF REPORTING PERSON
CO
- -------- -----------------------------------------------------------------------
<PAGE>
This Amendment No. 2 amends and supplements the Schedule 14D-1 filed on
March 15, 1999, as amended, relating to the offer by Ahold Acquisition, Inc., a
Delaware corporation (the "Purchaser"), a direct wholly-owned subsidiary of
Ahold U.S.A., Inc., a Delaware corporation ("Ahold U.S.A."), an indirect
wholly-owned subsidiary of Croesus Inc., a Delaware corporation ("Croesus") and
an indirect wholly-owned subsidiary of Koninklijke Ahold N.V. (also referred to
as Royal Ahold), a public company with limited liability incorporated under the
laws of The Netherlands with its corporate seat in Zaandam (Municipality
Zaanstad), The Netherlands ("Parent"), to purchase for cash all of the issued
and outstanding shares of the $3.52 Cumulative Exchangeable Redeemable Preferred
Stock, par value $0.01 per share (the "Shares"), of Supermarkets General
Holdings Corporation, a Delaware corporation (the "Company"), at a price of
$38.25 per Share (the "Offer Price"), net to the seller in cash, without
interest thereon, upon the terms and subject to the conditions set forth in the
Offer to Purchase, dated March 15, 1999 (the "Offer to Purchase"), and in the
related Letter of Transmittal and Notice of Guaranteed Delivery.
ITEM 10. ADDITIONAL INFORMATION.
Paragraph (e) of Item 10 is hereby amended and supplemented by adding
thereto the following:
SETTLEMENT OF LITIGATION. As previously described in the Schedule 14D-1,
the Company, SMG-II, the Purchaser and the directors of the Company are
defendants (collectively, the "Defendants") in a purported stockholder class
action lawsuit entitled Wolfson v. Supermarkets General Holdings Corporation,
et. al., C.A. No. 17047 (the "Action"), in which the plaintiff alleged, among
other things, that the defendant directors of the Company and SMG-II breached
their fiduciary duties to the holders of the Shares. The plaintiff, by his
counsel, has entered into a Memorandum of Understanding, dated May 19, 1999 (the
"Memorandum of Understanding"), with the Defendants (by their counsel) pursuant
to which the parties have agreed to settle the Action. The proposed settlement
is subject to, among other things, the approval of the settlement by the Court
of Chancery of the State of Delaware (the "Court").
The Memorandum of Understanding provides for the following: (i) the
certification of the Action as a class action under the rules of the Court,
which class would consist of all holders of the Shares from and including March
9, 1999 through and including the consummation of the SMG-II Merger, or, if the
SMG-II Merger fails to close, the Alternative Stock Purchase (the "Class"); (ii)
the complete and final compromise, settlement, discharge and release of all
claims, demands, rights, actions, causes of action, liabilities, damages,
losses, obligations, judgments, suits, matters and issues of any kind or nature
whatsoever, whether known or unknown, contingent or absolute, suspected or
unsuspected, disclosed or undisclosed, hidden or concealed, matured or
unmatured, arising under federal, state or any other law, that have been, could
have been, or in the future can or might be asserted in the Action or in any
court, tribunal or proceeding by or on behalf of any member of the Class (the
"Releasing Parties"), whether individual, class, derivative, representative,
legal, equitable or any other type or in any other capacity, against Defendants
or any of their families, parent entities, affiliates, subsidiaries,
predecessors, successors or assigns, and each and all of their respective past,
present or future officers, directors, associates, stockholders, controlling
persons, representatives, employees, attorneys, financial or investment
advisors, consultants, accountants, investment bankers, commercial bankers,
engineers, advisors, insurers or agents, heirs, executors, trustees, general or
limited partners or partnerships, personal representatives, estates or
administrators, predecessors, successors and assigns (collectively, the
"Released Persons"), which have arisen, could have arisen, or will arise out of,
or which are related in any manner to, the allegations, facts, events,
transactions, acts, occurrences, statements, representations,
misrepresentations, omissions or any other matter, set forth or otherwise
related, directly or indirectly, to the complaint filed in the Action, the
SMG-II Merger, the Alternative Stock Purchase, public filings or statements by
Defendants or their representatives in connection with the SMG-II Merger or the
Alternative Stock Purchase, or any other actions of the Defendants relating in
any way to the SMG-II Merger or the Alternative Stock Purchase (collectively,
the "Settled Claims") (subject to certain limited exceptions); (iii) the
Defendants have denied, and continue to deny, that they have committed or
attempted to commit any violation of law or breaches of duty of any kind; and
(iv) the Defendants are entering into the Memorandum of Understanding and will
be entering into the proposed settlement documentation solely because the
proposed settlement would eliminate the burden, risk and expense of further
litigation and is in the best interests of the Company and all of its
stockholders. In addition, the Company has agreed to amend the Schedule 14D-9 to
provide certain supplemental information.
In addition, the parties have agreed in the Memorandum of Understanding
that plaintiff's counsel in the Action will apply to the Court for a total award
of attorneys' fees and expenses in an amount not to exceed $1,956,268.40, or
$0.40 per Share, which Defendants have agreed not to oppose, provided, however,
such amount shall be payable only after Final Court Approval (as defined below),
and only if the Offer at the New Offer Price (as defined below) closes. In the
event the Offer at the New Offer Price does not close, but the Alternative Stock
Purchase does, pursuant to the terms of the Memorandum of Understanding, the
Released Persons shall continue to enjoy all of the benefits of the settlement
and plaintiff's counsel reserves their right to petition the Court for an award
of attorneys' fees and expenses, and the Defendants reserve their rights to
oppose any such petition.
Pursuant to the terms of the Memorandum of Understanding, the Defendants
have agreed, subject to Final Court Approval, that the Purchaser shall increase
the Offer Price to $40.25 per Share, less the total amount awarded as fees and
expenses to plaintiff's counsel by the Court divided by the total number of
outstanding Shares (the "New Offer Price"). As described above, plaintiff's
counsel will apply to the Court for an award of fees and expenses in an
aggregate amount not to exceed $1,956,268.40, or $0.40 per Share. Thus, if the
Court approves the settlement and the fees and expenses of counsel for the
plaintiff in full, the New Offer Price will be $39.85 per Share.
In addition, promptly following the approval of the settlement by the
Court, the Defendants have also agreed to amend the SMG-II Merger Agreement and
the Alternative Stock Purchase Agreement to permit either party to the SMG-II
Merger Agreement and the Alternative Stock Purchase Agreement, in the event that
Final Court Approval is not obtained on or prior to November 15, 1999, to extend
unilaterally the December 15, 1999 termination date set forth in the SMG-II
Merger Agreement and the Alternative Stock Purchase Agreement, to a new date 30
days after the date of the Final Court Approval or a final determination that
does not constitute Final Court Approval (the "New Termination Date"), provided,
however, that the New Termination Date shall not in any event be later than
April 17, 2000 unless otherwise mutually agreed by the parties to the SMG-II
Merger Agreement and the Alternative Stock Purchase Agreement, respectively.
The Defendants have also agreed that the Purchaser, at its sole option, may
elect on any date during the period from March 1, 2000 through April 1, 2000, if
prior to such date neither Final Court Approval nor a final determination that
does not constitute Final Court Approval (an "Adverse Determination") has been
received, to cause the SMG-II Merger Agreement to be amended to reduce the
merger consideration to be received by the holders of the capital stock of
SMG-II pursuant to the SMG-II Merger Agreement by $9,781,342 (being the product
of (x) the amount equal to the difference between the New Offer Price and the
Offer Price and (y) the number of outstanding Shares) (the "Escrow Amount"),
which amount shall be held in escrow for the benefit of the holders of the
Shares pending Final Court Approval (less the total amount awarded as fees and
expenses to plaintiff's counsel by the Court). Upon any such election by the
Purchaser, pursuant to the terms of the Memorandum of Understanding, the
Purchaser shall be deemed to have waived on behalf of all parties any
requirement under the settlement of obtaining Final Court Approval prior to
closing the Offer and the SMG-II Merger or the Alternative Stock Purchase. In
addition, the Defendants have agreed that in the event that the Purchaser makes
such an election, but Final Court Approval ultimately is not obtained, the
Escrow Amount, (i) if the Offer closes, shall remain in escrow and be available
for satisfaction of an adverse judgment against Defendants, if any, or (ii) if
the Alternative Stock Purchase closes, shall be released to PTK.
In addition, the Defendants have also agreed that in the event that an
Adverse Determination is received at any time before termination or closing of
the Offer, then the parties shall proceed with the SMG-II Merger and Alternative
Stock Purchase on the terms set forth in the original SMG-II Merger Agreement or
original Alternative Stock Purchase Agreement; provided, however, that if the
Purchaser has made the election described above and subsequent to such election,
but prior to the closing of the Offer or the Alternative Stock Purchase, an
Adverse Determination is received, then the parties shall proceed with the
SMG-II Merger or the Alternative Stock Purchase on the terms set forth in the
original SMG-II Merger Agreement and the original Alternative Stock Purchase
Agreement only if SMG-II provides notice to the Purchaser by April 1, 2000 of
its election to proceed on those terms.
Pursuant to the terms of the Memorandum of Understanding, any of the
Defendants shall have the right to withdraw from the proposed settlement in the
event that (i) any claims related to the SMG-II Merger, the Alternative Stock
Purchase, or the subject matter of the Action are commenced by any member of the
Class against any Released Persons in any court prior to Final Court Approval of
the settlement, and the court in which such claims are pending denies
Defendants' application to dismiss or stay such action in contemplation of
dismissal or (ii) any of the other conditions to the consummation of the
settlement described below shall not have been satisfied. The consummation of
the settlement is subject to (i) the drafting and execution of the settlement
documents and the other agreements necessary to effectuate the terms of the
proposed settlement; (ii) Final Court Approval of the settlement; (iii)
dismissal of the Action by the Court with prejudice and without awarding fees or
costs to any party; and (iv) the Purchaser closing (A) the Offer and the SMG-II
Merger or (B) the Alternative Stock Purchase.
For purposes hereof, "Final Court Approval" of the settlement means an
order entered by the Court approving the settlement and awarding plaintiff's
counsel's fees and expenses and such order is finally affirmed, without
modification of any substantive right of any party to the Memorandum of
Understanding, on appeal or is no longer subject to appeal and time for any
petition for reargument, appeal or review, by certiorari or otherwise, has
expired, provided that any modification of the order approving the settlement
with respect to the amount of attorneys' fees and expenses awarded and/or any
additional supplemental disclosure required shall not be considered a
modification of a substantive right affecting Final Court Approval.
EXTENSION AGREEMENT. Concurrently with the execution of the Memorandum of
Understanding and as required by Parent and the Purchaser, Parent, the Purchaser
and the SMG-II Stockholders entered into an extension agreement, pursuant to
which the SMG-II Stockholders have agreed to extend the Stockholders Agreement
Termination Date to a new date that is two months after the New Termination
Date.
The third to the last sentence in Section 7--"Certain Information
Concerning the Company" of the Offer to Purchase is hereby amended and restated
in its entirety to read as follows:
"None of Parent, the Purchaser, Croesus, Ahold U.S.A. or any other person
assumes any responsibility for the accuracy or validity of the foregoing
Projections."
Paragraph (f) of Item 10 is amended by adding at the end thereof the
following:
On May 20, 1999, Royal Ahold issued a press release announcing the
extension of the Expiration Date of the Offer until 5:00 p.m., New York City
time, on Friday, September 3, 1999, unless further extended. A copy of the press
release is attached hereto as Exhibit (a)(10) and is incorporated herein by
reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBIT.
The following is hereby added as an exhibit:
Exhibit(a)(10) Press Release dated May 20, 1999, extending the
Expiration Date of the Offer to Purchase.
Exhibit(c)(5) Extension Agreement, dated as of May 19, 1999 by
and among Koninklijke Ahold N.V., Ahold
Acquisition, Inc. and the Stockholders listed in
Exhibit I thereto.
Exhibit (g)(1) Memorandum of Understanding, dated as of May 19,
1999 by and among Supermarkets General Holdings
Corporation, SMG-II Holdings, Corporation, the
directors of Supermarkets General Holdings
Corporation and Ahold Acquisition, Inc.
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: May 20, 1999 KONINKLIJKE AHOLD N.V.
By: /S/ R. G. TOBIN
---------------------------------
Name: R.G. Tobin
Title: Executive Vice President
CROESUS, INC.
By: /S/ R. G. TOBIN
---------------------------------
Name: R.G. Tobin
Title: President and Chief
Executive Officer
AHOLD U.S.A., INC.
By: /S/ R. G. TOBIN
---------------------------------
Name: R. G. Tobin
Title: President and Chief
Executive Officer
AHOLD ACQUISITION, INC.
By: /S/ R. G. TOBIN
---------------------------------
Name: R. G. Tobin
Title: President
May 20, 1999
31 75 6595720
Royal Ahold extends tender offer
Zaandam, The Netherlands, May 20, 1999 - Ahold Acquisition, Inc., a wholly-owned
subsidiary of Royal Ahold, is extending the tender offer for the Preferred Stock
of Supermarkets General Holdings Corporation ("SMGH") until 5:00 p.m., New York
City time, on Friday, September 3, 1999. The offer had been scheduled to expire
on Friday, May 21, 1999.
The offer has been made pursuant to an agreement under which Royal Ahold will
acquire all of the outstanding shares of the capital stock of SMG-II Holdings
Corporation ("SMG-II"). SMG-II controls the US supermarket company Pathmark
Stores Inc.. Based upon information provided by Citibank N.A., as depositary for
the offer, as of the close of business on May 17, 1999, approximately 1.1
million shares (22.4%) of the outstanding Preferred Stock have been tendered and
not withdrawn. Completion of the tender offer is subject to a number of
conditions, including obtaining necessary regulatory approvals and at least 66
2/3% of the shares of Preferred Stock being tendered in the offer and not
withdrawn. (It is standard practice that the majority of shares will not be
tendered until the final two days of the offering period.)
Ahold Acquisition agreed to extend the tender offer in connection with a
Memorandum of Understanding that has been entered into on May 19th. The
Memorandum set forth an agreement in principle of all concerned parties to
settle a purported stockholder class action lawsuit on behalf of the holders of
the SMGH Preferred Stock that had been brought against SMGH, its directors, its
parent company SMG-II and Ahold Acquisition. The action relates to the pending
tender offer and the allocation of the total consideration to be paid in the
transaction among the equity owners of SMGH and SMG-II.
The proposed settlement is subject to a number of conditions, including the
approval of the settlement by the Court of Chancery of the State of Delaware. If
such approval becomes final, Ahold Acquisition has agreed to amend its tender
offer to increase the offer price for the SMGH Preferred Stock to $40.25 per
share, less any fees and expenses awarded to plaintiff's counsel by the court
(which could total $0.40 per share of SMGH Preferred Stock). In such event, the
total amount of merger consideration to be paid to the holders of the capital
stock of SMG-II will be reduced accordingly. AS A RESULT, THE OVERALL
CONSIDERATION AHOLD ACQUISITION WILL PAY IN CONNECTION WITH THE PATHMARK
ACQUISITION WILL NOT INCREASE. The total price payable by Ahold Acquisition for
all of the capital stock of SMG-II and the preferred stock of SMGH is
approximately USD 250 million. Pursuant to the agreement, Royal Ahold will also
indirectly assume all of the indebtedness of Pathmark, amounting to
approximately USD 1.5 billion.
Ahold Public Relations, tel. +31 75 659 57 20
After office hours: Hans Gobes: +31 6 55 82 22 98 / Jan Hol: +31 6 22 933 137
- --------------------------------------------------------------------------------
Royal Ahold press releases may contain 'forward-looking statements'. Actual
results may differ from such statements as they may have been influenced by
factors beyond the company's ability to control.
- --------------------------------------------------------------------------------
EXTENSION AGREEMENT
BY AND AMONG
KONINKLIJKE AHOLD N.V.,
AHOLD ACQUISITION, INC.
AND
THE STOCKHOLDERS LISTED ON EXHIBIT 1 HERETO
Dated as of May 19, 1999
<PAGE>
EXTENSION AGREEMENT
EXTENSION AGREEMENT (this "Agreement") dated as of May 19, 1999, among
KONINKLIJKE AHOLD N.V., a company organized under the laws of The Netherlands
("Parent"), AHOLD ACQUISITION, INC., a company organized under the laws of
Delaware and an indirect wholly owned subsidiary of Parent ("Sub") and the other
parties signatory hereto (individually, a "Stockholder" and, collectively, the
"Stockholders"). Terms used but not otherwise defined herein shall have the
meanings ascribed to them in the Merger Agreement (as defined below).
W I T N E S S E T H :
WHEREAS, Parent, Sub and SMG-II Holdings Corporation, a company
organized under the laws of Delaware (the "Company"), entered into an Agreement
and Plan of Merger, dated as of March 9, 1999 (the "Merger Agreement"), pursuant
to which the parties thereto agreed to merge Sub with and into the Company (the
"Merger");
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, the Stockholders entered into a Stockholders Agreement, dated as of
March 9, 1999 (the "Stockholders Agreement") with Parent and Sub;
WHEREAS, there is now pending an action in the Court of Chancery of
the State of Delaware, styled Elliot Wolfson v. Supermarkets General Holdings
Corporation, et al., C.A. No. 17047 (the "Action");
WHEREAS, the Action was filed by plaintiff ("Plaintiff") as a putative
class action against Supermarkets General Holdings Corporation, a company
organized under the laws of Delaware ("SMGH"), the Company, Sub, and certain
individual defendants (the "Director Defendants"), seeking, inter alia,
injunctive and declaratory relief and/or monetary relief with respect to the
Tender Offer;
WHEREAS, SMGH, the Company, Sub, the Director Defendants and Plaintiff
have agreed to settle the Lawsuit pursuant to the Memorandum of Understanding,
dated May 19, 1999, and related settlement agreements (the "Settlement");
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Extension of Termination Date. Parent, Sub and the Stockholders
hereby agree that notwithstanding clause (ii) of Section 9 of the Stockholders
Agreement, in the event that either Sub or the Company elect to extend the
termination date set forth in Section 8.1(c) of the Merger Agreement pursuant to
the Settlement (the "Extended Merger Termination Date"), the date set forth in
clause (ii) of Section 9 of the Stockholders Agreement shall be deemed to be
extended to a date that is two (2) months after the Extended Merger Termination
Date.
2. Miscellaneous.
(a) Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further lawful action as may
be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
(b) No Third Party Beneficiaries. This Agreement is not intended to be
for the benefit of, and shall not be enforceable by, any person or entity who or
which is not a party hereto.
(c) Counterparts. This Agreement may be executed in two or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Agreement by telecopier shall be
effective as delivery of a manually executed counterpart of this Agreement.
<PAGE>
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
KONINKLIJKE AHOLD N.V.
By: /s/ C.H. van der Hoeven
-------------------------------------
Name: C.H. van der Hoeven
Title: President
AHOLD ACQUISITION, INC.
By: /s/ Robert G. Tobin
-------------------------------------
Name: Robert G. Tobin
Title: President
<PAGE>
MERRILL LYNCH CAPITAL APPRECIATION
PARTNERSHIP NO. IX, L.P.
By MERRILL LYNCH LBO PARTNERS
NO. II, L.P., as General Partner
By MERRILL LYNCH CAPITAL PARTNERS,
INC., as General Partner
By /s/ James V. Caruso
-------------------------------------
Name: James V. Caruso
Title: Vice President
ML OFFSHORE LBO PARTNERSHIP NO. IX
By MERRILL LYNCH LBO PARTNERS NO. II,
L.P., as Investment General Partner
By MERRILL LYNCH CAPITAL PARTNERS,
INC., as General Partner
By /s/ James V. Caruso
-------------------------------------
Name: James V. Caruso
Title: Vice President
ML EMPLOYEES LBO PARTNERSHIP
NO. I, L.P.
By ML EMPLOYEES LBO MANAGERS, INC.,
as General Partner
By /s/ James V. Caruso
-------------------------------------
Name: James V. Caruso
Title: Vice President
ML IBK POSITIONS, INC.
By /s/ James V. Caruso
-------------------------------------
Name: James V. Caruso
Title: Vice President
<PAGE>
MERCHANT BANKING L.P. NO. 1
By MERRILL LYNCH MBP INC., as
General Partner
By /s/ James V. Caruso
-------------------------------------
Name: James V. Caruso
Title: Vice President
MERRILL LYNCH KECALP L.P. 1987
By KECALP INC., as General Partner
By /s/ James V. Caruso
-------------------------------------
Name: James V. Caruso
Title: Vice President
MERRILL LYNCH CAPITAL APPRECIATION
PARTNERSHIP NO. B-X, L.P.
By MERRILL LYNCH LBO PARTNERS NO. B-II,
L.P., as General Partner
By MERRILL LYNCH CAPITAL PARTNERS,
INC., as General Partner
By /s/ James V. Caruso
-------------------------------------
Name: James V. Caruso
Title: Vice President
ML OFFSHORE LBO PARTNERSHIP NO. B-X
By MERRILL LYNCH LBO PARTNERS NO. B-II,
L.P., as Investment General Partner
By MERRILL LYNCH CAPITAL PARTNERS,
INC., as General Partner
By /s/ James V. Caruso
-------------------------------------
Name: James V. Caruso
Title: Vice President
MLCP ASSOCIATES L.P. NO. II
By MERRILL LYNCH CAPITAL PARTNERS,
INC., as General Partner
By /s/ James V. Caruso
-------------------------------------
Name: James V. Caruso
Title: Vice President
MERCHANT BANKING L.P. NO. IV
By MERRILL LYNCH MBP, INC., as General
Partner
By /s/ James V. Caruso
-------------------------------------
Name: James V. Caruso
Title: Vice President
<PAGE>
MERRILL LYNCH KECALP L.P. 1989
By KECALP INC., as General Partner
By /s/ James V. Caruso
-------------------------------------
Name: James V. Caruso
Title: Vice President
MERRILL LYNCH KECALP L.P. 1991
By KECALP INC., as General Partner
By /s/ James V. Caruso
-------------------------------------
Name: James V. Caruso
Title: Vice President
THE EQUITABLE LIFE ASSURANCE SOCIETY OF
THE UNITED STATES
By /s/ U. Peter C. Gummeson
-------------------------------------
Name: U. Peter C. Gummeson
Title: Investment Officer
EQUITABLE DEAL FLOW FUND, L.P.
By EQUITABLE MANAGED ASSETS, L.P., as
General Partner
By THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES, as General
Partner
By /s/ U. Peter C. Gummeson
-------------------------------------
Name: U. Peter C. Gummeson
Title: Investment Officer
JAMES L. DONALD, INDIVIDUAL STOCKHOLDER
/s/ James L. Donald
---------------------------------------
James L. Donald
<PAGE>
Name of Stockholder Class of Company Stock Stockholder
- --------------------------------------------------------------------------------
Merrill Lynch Capital Appreciation
Partnership No. IX, L.P. Class A Common Stock 488,704.8
- --------------------------------------------------------------------------------
ML Offshore LBO Partnership No. IX Class A Common Stock 12,424.7
- --------------------------------------------------------------------------------
ML Employees LBO Partnership No. I,
L.P. Class A Common Stock 12,148.6
- --------------------------------------------------------------------------------
ML IBK Positions, Inc. Class A Common Stock 21,258.9
- --------------------------------------------------------------------------------
Merchant Banking L.P. No. 1 Class A Common Stock 8,119
- --------------------------------------------------------------------------------
Merrill Lynch KECALP L.P. 1987 Class A Common Stock 7,344
- --------------------------------------------------------------------------------
The Equitable Life Assurance
Society of the United States Class B Common Stock 150,000
- --------------------------------------------------------------------------------
Equitable Deal Flow Fund, L.P. Class B Common Stock 150,000
- --------------------------------------------------------------------------------
Merrill Lynch Capital Appreciation
Partnership No. B-X, L.P. Series A Preferred Stock 133,043
- --------------------------------------------------------------------------------
ML Offshore LBO Partnership No. B-X Series A Preferred Stock 40,950
- --------------------------------------------------------------------------------
MLCP Associates L.P. No. II Series A Preferred Stock 1,740
- --------------------------------------------------------------------------------
ML IBK Positions, Inc. Series A Preferred Stock 46,344.5
- --------------------------------------------------------------------------------
Merchant Bank L.P. No. IV Series A Preferred Stock 3,779
- --------------------------------------------------------------------------------
Merrill Lynch KECALP, L.P. 1989 Series A Preferred Stock 7,000
- --------------------------------------------------------------------------------
Merrill Lynch KECALP, L.P. 1991 Series A Preferred Stock 3,874.5
- --------------------------------------------------------------------------------
The Equitable Life Assurance
Society of the United States Series B Preferred Stock 84,134
- --------------------------------------------------------------------------------
Equitable Deal Flow Fund, L.P. Series B Preferred Stock 84,135
- --------------------------------------------------------------------------------
James Donald Series C Preferred Stock 8,520
- --------------------------------------------------------------------------------
