EXHIBIT 1.2
AMERICAN STORES COMPANY
3,081,580 Shares
Common Stock (par value $1.00 per share)
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Underwriting Agreement
(International Version)
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April __, 1997
Xxxxxxx Xxxxx International,
X.X. Xxxxxx Securities Ltd.,
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation,
Xxxxxx Xxxxxxx & Co. International Limited,
Xxxxx Xxxxxx Inc.,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman Xxxxx International,
Peterborough Court,
000 Xxxxx Xxxxxx,
Xxxxxx XX0X 0XX, Xxxxxxx.
Ladies and Gentlemen:
Certain stockholders named in Schedule II hereto (the "Selling
Stockholders") of American Stores Company, a Delaware corporation (the
"Company"), propose, subject to the terms and conditions stated herein, to sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of 3,081,580 shares (the "Firm Shares") and the Company proposes to issue and
sell to the Underwriters, at the election of the Underwriters, up to 462,237
additional shares (the "Optional Shares") of Common Stock (par value $1.00 per
share) ("Stock") of the Company (the Firm Shares and the Optional Shares that
the Underwriters elect to purchase pursuant to Section 2 hereof are herein
collectively called the "Shares").
It is understood and agreed to by all parties that the Company and the
Selling Stockholders are concurrently entering into an agreement, a copy of
which is attached hereto (the "U.S. Underwriting Agreement"), providing for the
sale by the Company and the Selling Stockholders of up to a total of 14,175,279
shares of Stock (the "U.S. Shares"), including the overallotment option
thereunder, through arrangements with certain underwriters in the United States
(the "U.S. Underwriters"), for whom Xxxxxxx, Sachs & Co., X.X. Xxxxxx Securities
Inc., Xxxxxxxxx,
Lufkin & Xxxxxxxx Securities Corporation, Xxxxxx Xxxxxxx & Co. Incorporated and
Xxxxx Xxxxxx Inc. are acting as representatives. Anything herein or therein to
the contrary notwithstanding, the respective closings under this Agreement and
the U.S. Underwriting Agreement are hereby expressly made conditional on one
another. The Underwriters hereunder and the U.S. Underwriters are
simultaneously entering into an Agreement between U.S. and International
Underwriting Syndicates (the "Agreement between Syndicates") which provides,
among other things, for the transfer of shares of Stock between the two
syndicates and for consultation by the Lead Managers hereunder with Xxxxxxx,
Xxxxx & Co. prior to exercising the rights of the Underwriters under Section 7
hereof. Two forms of prospectus are to be used in connection with the offering
and sale of shares of Stock contemplated by the foregoing, one relating to the
Shares hereunder and the other relating to the U.S. Shares. The latter form of
prospectus will be identical to the former except for certain substitute pages
as included in the registration statement, as amended, as mentioned below.
Except as used in Sections 2, 3, 4, 9 and 11 herein, and except as the context
may otherwise require, references hereinafter to the Shares shall include all of
the shares of Stock which may be sold pursuant to either this Agreement or the
U.S. Underwriting Agreement, and references herein to any prospectus whether in
preliminary or final form, and whether as amended or supplemented, shall include
both the U.S. and the international versions thereof.
In addition, this Agreement incorporates by reference certain
provisions from the U.S. Underwriting Agreement (including the related
definitions of terms, which are also used elsewhere herein) and, for purposes of
applying the same, references (whether in these precise words or their
equivalent) in the incorporated provisions to the "Underwriters" shall be to the
Underwriters hereunder, to the "Shares" shall be to the Shares hereunder as just
defined, to "this Agreement" (meaning therein the U.S. Underwriting Agreement)
shall be to this Agreement (except where this Agreement is already referred to
or as the context may otherwise require) and to the representatives of the
Underwriters or to Xxxxxxx, Sachs & Co. shall be to the addressees of this
Agreement and to Xxxxxxx Xxxxx International ("GSI"), and, in general, all such
provisions and defined terms shall be applied mutatis mutandis as if the
incorporated provisions were set forth in full herein having regard to their
context in this Agreement as opposed to the U.S. Underwriting Agreement.
1. The Company and each of the several Selling Stockholders hereby
make to each other and the Underwriters the same respective representations,
warranties and agreements as are set forth in Section 1 of the U.S. Underwriting
Agreement, which Section is incorporated herein by this reference.
2. Subject to the terms and conditions herein set forth, (a) each of
the Selling Stockholders agrees, severally and not jointly, to sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from each of the Selling Stockholders, at a purchase price
per share of $............, the number of Firm Shares (to be adjusted by you so
as to eliminate fractional shares) determined by multiplying the aggregate
number of Firm Shares to be sold by each of the Selling Stockholders as set
forth opposite their respective names in Schedule II hereto by a fraction, the
numerator of which is the aggregate number of Firm Shares to be purchased by
such Underwriter as set forth opposite the name of such Underwriter in Schedule
I hereto and the
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denominator of which is the aggregate number of Firm Shares to be purchased by
all of the Underwriters from all of the Selling Stockholders hereunder and (b)
in the event and to the extent that the Underwriters shall exercise the election
to purchase Optional Shares as provided below, the Company agrees to sell to
each of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at the purchase price per share set forth
in clause (a) of this Section 2, that portion of the number of Optional Shares
as to which such election shall have been exercised (to be adjusted by you so as
to eliminate fractional shares) determined by multiplying such number of
Optional Shares by a fraction the numerator of which is the maximum number of
Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the Underwriters
are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 462,237 Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this Agreement and
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless you and the Company otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
3. Upon the authorization by GSI of the release of the Firm Shares,
the several Underwriters propose to offer the Firm Shares for sale upon the
terms and conditions set forth in the Prospectus and in the forms of Agreement
among Underwriters (International Version) and Selling Agreements, which have
been previously submitted to the Company by you. Each Underwriter hereby makes
to and with the Company and the Selling Stockholders the representations and
agreements of such Underwriter as a member of the selling group contained in
Sections 3(d) and 3(e) of the form of Selling Agreements.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Sachs & Co. may request upon at least forty-eight hours' prior
notice to the Company and the Selling Stockholders shall be delivered by or on
behalf of the Company or the Selling Stockholders, as applicable, to Xxxxxxx,
Xxxxx & Co., through the facilities of The Depository Trust Company ("DTC"), for
the account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor in Federal or other funds immediately
available in New York City, made to the Company and the Custodian for each of
the Selling Stockholders, as their interests may appear. The Selling
Stockholders will cause the certificates representing the Firm Shares, and the
Company will cause the certificates representing the Optional Shares, to be made
available for checking and packaging at least twenty-four hours prior to the
Time of Delivery (as defined below) with respect thereto at the office of DTC or
its designated custodian (the "Designated Office"). The time and date of such
delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., New
York City time, on April __,
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1997 or such other time and date as Xxxxxxx, Sachs & Co. and the Selling
Stockholders may agree upon in writing, and, with respect to the Optional
Shares, 9:30 a.m., New York City time, on the date specified by Xxxxxxx, Xxxxx &
Co. in the written notice given by Xxxxxxx, Sachs & Co. of the Underwriters'
election to purchase such Optional Shares (consistent with the terms hereof), or
such other time and date as Xxxxxxx, Xxxxx & Co. and the Company may agree upon
in writing. Such time and date for delivery of the Firm Shares is herein called
the "First Time of Delivery", such time and date for delivery of the Optional
Shares, if not the First Time of Delivery, is herein called the "Second Time of
Delivery", and each such time and date for delivery is herein called a "Time of
Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the cross-
receipts for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7 hereof, will be delivered at the offices of
Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such
other location as may be mutually agreed (the "Closing Location"), and the
Shares will be delivered at the Designated Office, all at each Time of Delivery.
A meeting will be held at the Closing Location at 3:00 p.m., New York City time,
on the New York Business Day next preceding each Time of Delivery, at which
meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company hereby makes with the Underwriters the same agreements
as are set forth in Section 5 of the U.S. Underwriting Agreement, which Section
is incorporated herein by this reference.
6. The Company, each of the Selling Stockholders, and the
Underwriters hereby agree with respect to certain expenses on the same terms as
are set forth in Section 6 of the U.S. Underwriting Agreement, which Section is
incorporated herein by this reference.
7. Subject to the provisions of the Agreement between Syndicates
governing the coordination of actions between the two syndicates, the
obligations of the Underwriters hereunder, as to the Shares to be delivered at
each Time of Delivery, shall be subject, in their discretion, to the condition
that all representations and warranties and other statements of the Company and
of the Selling Stockholders herein are, at and as of such Time of Delivery, true
and correct, the condition that the Company and the Selling Stockholders shall
have performed in all material respects all of its and their respective
obligations hereunder theretofore to be performed, and additional conditions
identical to those set forth in Section 7 of the U.S. Underwriting Agreement,
which Section is incorporated herein by this reference.
8. (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
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the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, 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 shall
not be liable (i) 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 or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through GSI expressly for use
therein and (ii) with respect to any Preliminary Prospectus to the extent that
any such loss, claim, damage or liability of such Underwriter results solely
from the fact that such Underwriter sold Shares to a person as to whom the
Company shall establish that there was not sent by commercially reasonable
means, at or prior to the written confirmation of such sale, a copy of the
Prospectus 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 and the loss, claim, damage or liability of such Underwriter results
from an untrue statement or omission of a material fact contained in the
Preliminary Prospectus that was corrected in the Prospectus.
(b) Each of the Selling Stockholders 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 an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, 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, 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 Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Selling Stockholder expressly for use therein; 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 such Selling
Stockholder shall 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 or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through GSI expressly
for use therein; provided further that the liability of a Selling Stockholder
shall not exceed the product of the number of Firm Shares
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sold by such Selling Stockholder and the initial public offering price of the
Shares as set forth in the Prospectus.
(c) Each Underwriter will indemnify and hold harmless the Company and
each Selling Stockholder against any losses, claims, damages or liabilities to
which the Company or such Selling Stockholder 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 an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, 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, 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 Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through GSI expressly for use
therein; and will reimburse the Company and each Selling Stockholder for any
legal or other expenses reasonably incurred by the Company or such Selling
Stockholder in connection with investigating or defending any such action or
claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (which
shall not, except with the consent of the indemnified party (which shall not be
unreasonably withheld), 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 shall not be liable to such
indemnified party under such subsection 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, 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.
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(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient (other than as a result of the application of the
provisos contained therein) to hold harmless an indemnified party under
subsection (a), (b) or (c) 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 and the Selling Stockholders on the
one hand and the Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (d) above, 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 and the Selling Stockholders on the one hand
and 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 and the Selling Stockholders 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 Shares purchased
under this Agreement (before deducting expenses) received by the Company and the
Selling Stockholders bear to the total underwriting discounts and commissions
received by the Underwriters with respect to the Shares purchased under this
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 or the Selling Stockholders 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 statement or omission.
The Company, each of the Selling Stockholders and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this subsection (e)
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (e). 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 (e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
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(f) The obligations of the Company and the Selling Stockholders under
this Section 8 shall be in addition to any liability which the Company and the
respective Selling Stockholders 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 8 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 officer and director of the Company and to each person, if
any, who controls the Company or any Selling Stockholder within the meaning of
the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Shares which it has agreed to purchase hereunder at a Time of
Delivery, you may in your discretion arrange for you or another party or other
parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange for
the purchase of such Shares, then the Company and the Selling Stockholders shall
be entitled to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to you to purchase such Shares on
such terms. In the event that, within the respective prescribed periods, you
notify the Company and the Selling Stockholders that you have so arranged for
the purchase of such Shares, or the Company and the Selling Stockholders notify
you that they have so arranged for the purchase of such Shares, you or the
Company and the Selling Stockholders shall have the right to postpone such Time
of Delivery 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, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which in your opinion 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 this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company or
the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased does not exceed one-eleventh of
the aggregate number of all of the Shares to be purchased at such Time of
Delivery, then the Company and the Selling Stockholders shall have the right to
require each non-defaulting Underwriter to purchase the number of Shares which
such Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company
and the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of all of the Shares to be purchased at such Time of Delivery,
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or if the Company and the Selling Stockholders shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of the
Underwriters to purchase and of the Company to sell the Optional Shares) shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company or the Selling Stockholders, except for the expenses
to be borne by the Company and the Selling Stockholders and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Selling Stockholders and the
several Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company, or any of the Selling Stockholders, or any
officer or director or controlling person of the Company, or any controlling
person of any Selling Stockholder, and shall survive delivery of and payment for
the Shares.
11. If this Agreement shall be terminated pursuant to Section 9
hereof, neither the Company nor the Selling Stockholders shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason any Shares are not delivered by or on behalf of the
Company or the Selling Stockholders as provided herein, the Company will
reimburse the Underwriters through GSI for all out-of-pocket expenses approved
in writing by GSI, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Shares not so delivered, but the Company and the Selling
Stockholders shall then be under no further liability to any Underwriter in
respect of the Shares not so delivered except as provided in Sections 6 and 8
hereof.
12. In all dealings hereunder, you 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 you jointly or by GSI on behalf of you as the representatives; and in
all dealings with any Selling Stockholder hereunder, you and the Company shall
be entitled to act and rely upon any statement, request, notice or agreement on
behalf of such Selling Stockholder made or given by any or all of the Attorneys-
in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the Underwriters in care of GSI, Peterborough Court,
000 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx, Attention: Equity Capital Markets,
Telex No. 94012165, facsimile transmission No. (071) 774-1550; if to any Selling
Stockholder shall be delivered or sent by mail, telex or facsimile transmission
to counsel for such Selling Stockholder at its address set forth in Schedule II
hereto; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth
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in the Registration Statement, Attention: Chief Legal Officer; provided,
however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company or the Selling Stockholders by GSI upon request. Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and the Selling Stockholders and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the Company and each person who controls the Company, any Selling Stockholder or
any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of this Agreement.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us counterparts hereof, one for the Company and one for each of
the Lead Managers or Lead Managing Underwriters plus one for each counsel and
the Custodian, and upon the acceptance hereof by you, on behalf of each of the
Underwriters, this letter and such acceptance hereof shall constitute a binding
agreement among each of the Underwriters, the Company and each of the Selling
Stockholders.
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Any person executing and delivering this Agreement as Attorney-in-Fact for a
Selling Stockholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing and
binding Power of Attorney and Custody Agreement which authorizes such Attorney-
in-Fact to take such action.
Very truly yours,
AMERICAN STORES COMPANY
By:
..........................................
Name:
Title:
SELLING STOCKHOLDERS
By:
..........................................
Name:
Title:
By:
..........................................
Name:
Title:
By:
..........................................
Name:
Title:
As Attorneys-in-Fact acting on behalf of each of the Selling Stockholders named
in Schedule II to this Agreement.
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Accepted as of the date hereof [at......,
..........................]:
Xxxxxxx Xxxxx International
X.X. Xxxxxx Securities Ltd.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
Xxxxxx Xxxxxxx & Co. International
Limited
Xxxxx Xxxxxx Inc.
By: Xxxxxxx Xxxxx International
By: .....................................................
(Attorney-in-fact)
On behalf of each of the Underwriters
12
SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- --------------- ---------
Xxxxxxx, Sachs International.......................................
X.X. Xxxxxx Securities Ltd. .......................................
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation...........................................
Xxxxxx Xxxxxxx & Co. International Limited.........................
Xxxxx Xxxxxx Inc. .................................................
--------- -------
Total.............................................................. 3,081,580 462,237
--------- -------
--------- -------
I-1
SCHEDULE II
NUMBER OF
OPTIONAL SHARES
TOTAL NUMBER TO BE SOLD IF
OF FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
--------------- ------------------
The Company.......................................................... 0 462,237
THE SELLING STOCKHOLDERS:(a)
ALSAM Trust (X.X. Xxxxxx portion).................................... 1,145,878 0
ALSAM Trust (Xxxxx X. Xxxxxx portion)................................ 20,682 0
Six S. Ranch, Inc.................................................... 2,230 0
ALSAM Foundation..................................................... 228,293 0
Xxxxxx Family Foundation for Roman Catholic and Community
Charities........................................................... 75,282 0
Xxxxxx Institute for Research........................................ 217,482 0
Xxxxx Xxx Xxxxxx Xxxxxxxx............................................ 44,895 0
Xxxxxxx Xxxxxx Xxxxxxxx.............................................. 48,791 0
The Northern Trust Company, As Trustee, UA dtd 8/30/96 with X.X.
Xxxxxx, The X.X. Xxxxxx & Xxxxx X. Xxxxxx Charitable
Remainder Unitrust #1............................................... 10,305 0
The Northern Trust Company, As Trustee, UA dtd 1/17/97 with X.X.
Xxxxxx, The X.X. Xxxxxx & Xxxxx X. Xxxxxx Charitable
Remainder Unitrust #2............................................... 805,468 0
The Northern Trust Company, As Trustee, UA dtd 8/26/96 with X.X.
Xxxxxx, The X.X. Xxxxxx, The Xxxxx Xxx Xxxxxxxx
Charitable Remainder Unitrust #1.................................... 28,440 0
The Northern Trust Company, Successor Trustee, UA dtd 7/6/71
with Xxxxxxx Xxxxxx (Xxxxxxxx), The Xxxxxxx Xxxxxx
(Xxxxxxxx) Personal Trust........................................... 58,390 0
The Northern Trust Company, As Trustee, UA dtd 8/30/96 with X.X.
Xxxxxx, The Xxxxxxx Xxxxxx Xxxxxxxx Charitable Remainder
Unitrust #1......................................................... 70,821 0
The Northern Trust Company, As Trustee, UA dtd 1/17/97 with X.X.
Xxxxxx, The Xxxxxxx Xxxxxx Xxxxxxxx Charitable Remainder
Unitrust #2......................................................... 54,427 0
The Northern Trust Company, Successor Trustee, UA dtd 2/2/66
with Xxxxxx Xxxxxx Xxxxxxxxx, for the benefit of Xxxxxxx
Xxxxxx (Xxxxxxxx)................................................... 5,487 0
The Northern Trust Company, Successor Trustee, UA dtd 5/21/75
with Xxxxxx Xxxxxx Xxxxxx, The Xxxxxx Xxxxxx Xxxxxx
Personal Trust...................................................... 31,280 0
The Northern Trust Company, Successor Trustee, UA dtd 8/26/96
with X.X. Xxxxxx, The Xxx X. Xxxxxx Charitable Remainder
Unitrust #1......................................................... 70,821 0
II-1
The Northern Trust Company, As Trustee, UA dtd 1/17/97 with X.X.
Xxxxxx, The Xxx X. Xxxxxx Charitable Remainder Unitrust #2.......... 54,427 0
The Northern Trust Company, Successor Trustee, UA dtd 2/2/66
with Xxxxxx Xxxxxx Xxxxxxxxx, For the benefit of Xxx X. Xxxxxx...... 5,487 0
The Northern Trust Company, Successor Trustee, UA dtd 2/2/66
with Xxxxxx Xxxxxx Xxxxxxxxx, For the benefit of Mar
Xxxxxxx Xxxxxx...................................................... 5,487 0
The Northern Trust Company, Successor Trustee, UA dtd 11/23/83
with Xxxxxx Xxxxxx Xxxxxxxxx, For the benefit of Xxxxxxxx
Xxxxxx, Age 30 Trust................................................ 1,131 0
The Northern Trust Company, Successor Trustee, UA dtd 11/23/83
with Xxxxxx Xxxxxx Xxxxxxxxx, For the benefit of Xxxxxx X.
Xxxxxx, Age 30 Trust................................................ 1,131 0
The Northern Trust Company, Successor Trustee, UA dtd 11/23/83.......
with Xxxxxx Xxxxxx Xxxxxxxxx, For the benefit of Xxxxxxxx
Xxxxxxxx, Age 30 Trust.............................................. 1,131 0
The Northern Trust Company, Successor Trustee, UA dtd 11/23/83.......
with Xxxxxx Xxxxxx Xxxxxxxxx, For the benefit of Xxxxxx
Xxxxxx Xxxxxxx, Age 30 Trust........................................ 1,131 0
The Northern Trust Company, Successor Trustee, UA dtd 11/23/83
with Xxxxxx Xxxxxx Xxxxxxxxx, For the benefit of Xxxxx
Xxxxx Xxxxxx, Age 30 Trust.......................................... 1,131 0
The Northern Trust Company, Successor Trustee, UA dtd 11/23/83
with Xxxxxx Xxxxxx Xxxxxxxxx, For the benefit of Xxxxxxx X.
Xxxxxx, Age 30 Trust................................................ 1,131 0
The Northern Trust Company, Successor Trustee, UA dtd 11/23/83
with Xxxxxx Xxxxxx Xxxxxxxxx, For the benefit of Xxx Xxxxx
Xxxxxx, Age 30 Trust................................................ 1,131 0
The Northern Trust Company, Trustee, UA dtd 1/29/97 with Xxxxx
Xxx Xxxxxxxx, The Xxxxx Xxx Xxxxxx Xxxxxxxx Charitable
Remainder Trust #2.................................................. 11,153 0
U.S. Bank, Successor Trustee, UA dtd 9/13/68 With Xxxxx Xxx
Xxxxxx (Balukoff) The Xxxxx Xxx Xxxxxx (Xxxxxxxx)
Personal Trust...................................................... 29,877 0
U.S. Bank, Successor Trustee, UA dtd 2/2/66 With Xxxxxx Xxxxxx
Xxxxxxxxx for the benefit of Xxxxx Xxx Xxxxxx (Xxxxxxxx)............ 5,487 0
U.S. Bank, Successor Trustee, UA dtd 11/23/83 with Xxxxxx Xxxxxx
Xxxxxxxxx for the benefit of Xxxxx X. Xxxxxxx Lifetime Trust........ 1,155 0
U.S. Bank, As Successor Trustee, UA dtd 11/23/83 With Xxxxxx.........
Xxxxxx Xxxxxxxxx for the benefit of Xxxxx Xxxx Xxxxxxx,
Age 30 Trust........................................................ 1,131 0
II-2
U.S. Bank, Successor Trustee, UA dtd 11/23/83 With Xxxxxx Xxxxxx
Xxxxxxxxx for the benefit of Xxxxxxx Xxx Xxxxxxx, Lifetime Trust........ 1,155 0
U.S. Bank, As Successor Trustee, UA dtd 11/23/83 With Xxxxxx
Xxxxxx Xxxxxxxxx for the benefit of Xxxxxxx Xxx Xxxxxxx,
Age 30 Trust............................................................ 1,131 0
U.S. Bank, Successor Trustee, UA dtd 11/23/83 With Xxxxxx Xxxxxx
Xxxxxxxxx for the benefit of Xxxxxx Xxx Xxxxxxxx Lifetime
Trust................................................................... 1,155 0
U.S. Bank, As Successor Trustee, UA dtd 11/23/83 With Xxxxxx
Xxxxxx Xxxxxxxxx for the benefit of Xxxxxx Xxx Xxxxxxxx,
Age 30 Trust............................................................ 1,131 0
U.S. Bank, Successor Trustee, UA dtd 11/23/83 With Xxxxxx Xxxxxx
Xxxxxxxxx for the benefit of Xxxxxxx Xxxxxxxx Lifetime Trust............ 1,155 0
U.S. Bank, As Successor Trustee, UA dtd 11/23/83 With Xxxxxx
Xxxxxx Xxxxxxxxx for the benefit of Xxxxxxx Xxxxxxxx, Age 30
Trust................................................................... 1,080 0
U.S. Bank, Successor Trustee, UA dtd 11/23/83 With Xxxxxx Xxxxxx
Xxxxxxxxx for the benefit of Xxxxxx Xxxxxxxx, Xx. Lifetime
Trust................................................................... 1,155 0
U.S. Bank, As Successor Trustee, UA dtd 11/23/83 With Xxxxxx
Xxxxxx Xxxxxxxxx for the benefit of Xxxxxxx Xxxxxx
Xxxxxxxx, Xx., Age 30 Trust............................................. 1,131 0
U.S. Bank, Successor Trustee, UA dtd 11/23/83 With Xxxxxx Xxxxxx
Xxxxxxxxx for the benefit of Xxxxxxx X. Xxxxxxxx Lifetime
Trust................................................................... 1,155 0
U.S. Bank, As Successor Trustee, UA dtd 11/23/83 With Xxxxxx
Xxxxxx Xxxxxxxxx for the benefit of Xxxxxxx Xxxxxx
Xxxxxxxx, Age 30 Trust.................................................. 1,131 0
U.S. Bank, Successor Trustee, UA dtd 11/23/83 With Xxxxxx Xxxxxx
Xxxxxxxxx for the benefit of Xxxxx Xxxxx Xxxxxxxx Lifetime
Trust................................................................... 1,155 0
U.S. Bank, As Successor Trustee, UA dtd 11/23/83 With Xxxxxx
Xxxxxx Xxxxxxxxx for the benefit of Xxxxx Xxxxx Xxxxxxxx,
Age 30 Trust............................................................ 1,131 0
U.S. Bank, Successor Trustee, UA dtd 11/23/83 With Xxxxxx Xxxxxx
Xxxxxxxxx for the benefit of Xxx Xxxxxxxx Lifetime Trust................ 1,155 0
U.S. Bank, As Successor Trustee, UA dtd 11/23/83 With Xxxxxx
Xxxxxx Xxxxxxxxx for the benefit of Xxx Xxxxxxxx, Age 30
Trust................................................................... 1,130 0
U.S. Bank, As Trustee, UA dtd 2/13/97 with Xxxxx Xxx Xxxxxx
Balukoff, the Balukoff Charitable Remainder Trust....................... 24,537 0
--------- -------
TOTAL.................................................................... 3,081,580 462,237
========= =======
(a) Each Selling Stockholder is represented by Debevoise & Xxxxxxxx and has
appointed X.X. Xxxxxx, Xxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx, and each of
them, as the Attorneys-in-Fact for such Selling Stockholder.
II-3
