-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JtTwTeseQFlyuWzer4gQ0X1QWFNWUS2MhMDefTISvtBMl5BlQCl61tJ3R3yd+qFh Sr0WknZAmt+nUEdmh8O5RQ== 0000906287-98-000139.txt : 19980612 0000906287-98-000139.hdr.sgml : 19980612 ACCESSION NUMBER: 0000906287-98-000139 CONFORMED SUBMISSION TYPE: SC 14D9/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980611 SROS: AMEX SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GIANT FOOD INC CENTRAL INDEX KEY: 0000041289 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-GROCERY STORES [5411] IRS NUMBER: 530073545 STATE OF INCORPORATION: DE FISCAL YEAR END: 0222 FILING VALUES: FORM TYPE: SC 14D9/A SEC ACT: SEC FILE NUMBER: 005-12275 FILM NUMBER: 98646672 BUSINESS ADDRESS: STREET 1: 6300 SHERIFF RD STREET 2: DEPT 593 CITY: LANDOVER STATE: MD ZIP: 20785 BUSINESS PHONE: 3013414100 MAIL ADDRESS: STREET 1: P O BOX 1804 DEPT 593 STREET 2: 6400 SHERIFF ROAD CITY: LANDOVER STATE: MD ZIP: 20785 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: RUTSTEIN DAVID W CENTRAL INDEX KEY: 0001062046 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 14D9/A BUSINESS ADDRESS: STREET 1: 6300 SHERIFF ROAD CITY: LANDOVER STATE: MD ZIP: 20785 BUSINESS PHONE: 3013414301 SC 14D9/A 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 AMENDMENT NO. 2 TO SCHEDULE 14D-9 Solicitation/Recommendation Statement Pursuant to Section 14(d)(4) of the Securities Exchange Act of 1934 GIANT FOOD INC. (Name of Subject Company) Mark H. Berey, Michael W. Broomfield, Winston doCarmo, Mark Iskander, Pete L. Manos, Raymond A. Mason, Roger D. Olson, Peter F. O'Malley, David W. Rutstein, Barry F. Scher and Constance M. Unseld (Name of Person(s) Filing Statement) Class A Common Stock (Non-Voting), $1.00 par value (Title of Class of Securities) 374478105 (Cusip Number of Class of Securities) David W. Rutstein, Esq. 6300 Sheriff Road Landover, Maryland 20785 (301) 341-4100 (Name, address and telephone number of person authorized to receive notice and communications on behalf of the person(s) filing statement) Copy to: Wayne K. Johnson, Esq. Jorden Burt Boros Cicchetti Berenson & Johnson LLP Suite 400 East 1025 Thomas Jefferson Street, N.W. Washington, D.C. 20007 (202) 965-8100 1 This Amendment No. 2 amends and supplements Item 9 of the Solicitation/Recommendation Statement on Schedule 14D-9 filed on May 19, 1998, and as heretofore amended (the "Schedule 14D-9"), on behalf of Pete L. Manos, Constance M. Unseld, Peter F. O'Malley, Raymond A. Mason, Michael W. Broomfield, David W. Rutstein, Mark H. Berey, Roger D. Olson, Winston doCarmo, Barry F. Scher and Mark Iskander (the "Director/Management Committee") relating to the tender offer by Koninklijke Ahold N.V., a public company with limited liability incorporated under the laws of The Netherlands (the "Purchaser"), to purchase for cash all of the outstanding shares of Class A Common Stock (Non-Voting), par value $1.00 per share (the "Shares"), of Giant Food Inc., a Delaware corporation (the "Company"), at a price of $43.50 per Share, net to the seller in cash, without interest thereon (the "Offer Price"), upon the terms and subject to the conditions set forth in the Purchaser's Offer to Purchase, dated May 19, 1998 (the "Offer to Purchase"), and the related Letter of Transmittal and Notice of Guaranteed Delivery (which, as may be amended and supplemented from time to time, collectively constitute the "Offer"). The Offer is being made pursuant to a Stock Purchase Agreement, dated as of May 19, 1998, between the Purchaser and The 1224 Corporation ("1224") (the "Stock Purchase Agreement"). All capitalized terms not defined herein are used as defined in the Schedule 14D-9. ITEM 9. MATERIAL TO BE FILED AS EXHIBITS. The information contained in Item 9 of the Schedule 14D-9 is hereby amended by adding the following Exhibits, copies of which are filed herewith: Exhibit 4 -- Copy of the Stock Purchase Agreement dated as of May 27, 1998 among J Sainsbury plc, JS Mass. Securities Corp., and Koninklijke Ahold N.V. Exhibit 5 -- Confidentiality Agreement, as of February 2, 1998, between Koninklijke Ahold N.V. and The 1224 Corporation Exhibit 6 -- Exclusivity Agreement, dated April 27, 1998, between Koninklijke Ahold N.V. and The 1224 Corporation 2 SIGNATURE After reasonable 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. /s/ David W. Rutstein David W. Rutstein Pete L. Manos Constance M. Unseld Peter F. O'Malley Raymond A. Mason Michael W. Broomfield Mark H. Berey Roger D. Olson Winston doCarmo Barry F. Scher Mark Iskander By:/s/ David W. Rutstein David W. Rutstein Attorney-in-Fact Dated: June 11, 1998 3 EX-99.4 2 EXHIBIT 4 STOCK PURCHASE AGREEMENT Dated as of May 27, 1998 By and Among J SAINSBURY PLC, JS MASS. SECURITIES CORP. and KONINKLIJKE AHOLD N.V. (Royal Ahold) TABLE OF CONTENTS
Page ARTICLE I DEFINITIONS................................................................................................. 1 Section 1.1 Definitions....................................................................... 1 ARTICLE II SALE OF STOCK AND TENDER OFFER.............................................................................. 4 Section 2.1 Sale of Transferred Shares........................................................ 4 Section 2.2 Purchase Price for Transferred Shares............................................. 4 Section 2.3 Closing........................................................................... 4 Section 2.4 Transfer Taxes.................................................................... 4 Section 2.5 Tender of Class A Shares.......................................................... 4 ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE PARENT AND THE SELLER................................................. 5 Section 3. Representations and Warranties of the Parent and the Seller................................. 5 Section 3.1 Legal Status...................................................................... 5 Section 3.2 Power and Authority; Enforceability............................................... 5 Section 3.3 Ownership of Transferred Shares................................................... 5 Section 3.4 No Conflicts; Consents of Third Parties; Compliance with Laws..................... 6 Section 3.5 Broker's or Finder's Fees......................................................... 6 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASER............................................................. 6 Section 4. Representations and Warranties of the Purchaser............................................. 6 Section 4.1 Legal Status...................................................................... 6 Section 4.2 Power and Authority; Enforceability............................................... 6 Section 4.3 No Conflicts...................................................................... 7 Section 4.4 Broker's or Finder's Fees......................................................... 7 Section 4.5 Available Funds................................................................... 7 Section 4.6 Securities Act.................................................................... 7 ARTICLE V EXCLUSIVE DEALING, OTHER COVENANTS.......................................................................... 8 Section 5.1 Exclusive Dealing................................................................. 8 Section 5.2 Further Assurances................................................................ 9 Section 5.3 Resignations...................................................................... 9 Section 5.4 Provisions Concerning Transferred Shares.......................................... 9 Section 5.5 Restriction on Transfer, Proxies and Non-Interference............................ 9 Section 5.6 Changes in Shares................................................................ 10 Section 5.7 Changes in Tender Offer.......................................................... 10 Section 5.8 Tender Offer Conditions.......................................................... 10 Section 5.9 Purchase of the Class A Shares and the Transferred Shares........................ 10 ARTICLE VI CONDITIONS TO THE PURCHASER'S OBLIGATIONS................................................................... 10 Section 6. Conditions to the Purchaser's Obligations................................................... 10 Section 6.1 Truth of Representations and Warranties.......................................... 10 Section 6.2 Performance of Agreements........................................................ 11 Section 6.3 Injunction....................................................................... 11 Section 6.4 Consents and Approvals........................................................... 11 Section 6.5 Tender Offer Conditions......................................................... 11 Section 6.6 Resignations..................................................................... 11 Section 6.7 Class AC Stock Purchase Agreement................................................ 12 Section 6.8 Tender Offer..................................................................... 12 ARTICLE VII CONDITIONS TO THE OBLIGATIONS OF THE PARENT AND THE SELLER.................................................. 12 Section 7. Conditions to the Obligations of the Parent and the Seller.................................. 12 Section 7.1 Truth of Representations and Warranties.......................................... 12 Section 7.2 Performance of Agreements........................................................ 12 Section 7.3 Injunction....................................................................... 12 Section 7.4 Tender Offer..................................................................... 12 Section 7.5 Class AC Stock Purchase Agreement................................................ 13 ARTICLE VIII MISCELLANEOUS............................................................................................... 13 Section 8.1 Representations and Warranties................................................... 13 Section 8.2 Expenses......................................................................... 13 Section 8.3 Governing Law.................................................................... 13 Section 8.4 Headings......................................................................... 14 Section 8.5 Publicity........................................................................ 14 Section 8.6 Notices.......................................................................... 14 Section 8.7 Binding Effect; Benefit; Assignment.............................................. 15 Section 8.8 Best Efforts..................................................................... 15 Section 8.9 Counterparts..................................................................... 16 Section 8.10 Entire Agreement................................................................. 16 Section 8.11 Amendments....................................................................... 16 Section 8.12 Severability..................................................................... 16 Section 8.13 Termination of Agreement......................................................... 16 Section 8.14 Specific Performance............................................................. 16 Section 8.15 Remedies Cumulative.............................................................. 17 Section 8.16 No Waiver........................................................................ 17
STOCK PURCHASE AGREEMENT STOCK PURCHASE AGREEMENT (this "Agreement") dated as of May 27, 1998, by and among J Sainsbury plc, a corporation organized and existing under the laws of England and Wales (the "Parent"), JS Mass. Securities Corp., a corporation organized and existing under the laws of the State of Massachusetts and a wholly-owned subsidiary of Parent (the "Seller"), and Koninklijke Ahold N.V. (Royal Ahold), a public company with limited liability organized under the laws of the Netherlands with its corporate seat in Zaandam (Municipality Zaanstad) (the "Purchaser"). W I T N E S S E T H : WHEREAS, the Parent and the Seller own beneficially and the Seller will prior to and at the Closing (as hereinafter defined) own of record 125,000 shares of Class AL Common Stock, par value $1.00 per share (the "Class AL Shares"), and 11,779,931 shares of Class A Common Stock, par value $1.00 per share (the "Class A Shares"), in each case of Giant Food Inc., a corporation organized and existing under the laws of the State of Delaware (the "Corporation"); WHEREAS, the Seller desires to sell, and the Purchaser desires to purchase, all of the Class AL Shares (such Class AL Shares, collectively, the "Transferred Shares"), on the terms and subject to the conditions set forth in this Agreement; and WHEREAS, the Purchaser has made a tender offer to purchase any and all of the issued and outstanding Class A Shares, subject to the terms and conditions set forth in the Offer to Purchase dated May 19, 1998 (the "Offer to Purchase") (including, without limitation, the conditions set forth in Section 14 thereof (the "Tender Offer Conditions") (the "Tender Offer"), at a price per share equal to $43.50 (the "Tender Offer Price"). NOW, THEREFORE, in consideration of the premises and of the promises hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I DEFINITIONS Section 1.1 Definitions. When used in this Agreement, the following terms shall have the respective meanings specified therefor below (such meanings to be equally applicable to both the singular and plural forms of the terms defined). "Acquisition Proposal" shall have the meaning provided in Section 5.1(a) hereof. "Affiliate" shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other Person, or the power to appoint or dismiss the managing directors of such other Person, whether through the ownership of voting securities, by contract or otherwise; provided that, for purposes of this Agreement, the Corporation shall not be deemed an Affiliate of the Parent or the Seller. "Agents" shall have the meaning provided in Section 5.1(a) hereof. "Agreement" shall have the meaning provided in the recitals hereto. "Class AC Shares" shall mean the shares of Class AC Common Stock, par value $1.00 per share, of the Corporation. "Class AC Stock Purchase Agreement" shall mean the Stock Purchase Agreement dated as of May 19, 1998 by and between the Purchaser and the Selling AC Shareholder, as such agreement may be amended from time to time. "Class AL Shares" shall have the meaning provided in the recitals hereto. "Class A Shares" shall have the meaning provided in the recitals hereto. "Closing" shall have the meaning provided in Section 2.3 hereof. "Closing Date" shall have the meaning provided in Section 2.3 hereof. "Corporation" shall have the meaning provided in the recitals hereto. "Director" shall have the meaning provided in Section 6.6 hereof. "Existing Class A Shares" shall have the meaning provided in Section 2.5 hereof. "HSR Act" shall have the meaning set forth in Section 4.3(b) hereof. "Law" shall mean any constitution, treaty, statute, law, code, ordinance, decree, order, rule, regulation, or judicial or arbitral decision or judgment. "Liens" shall mean liens, security interests, options, rights of first refusal, charges, adverse claims, security agreements, or any other encumbrances; provided, however, that with respect to the Transferred Shares, "Liens" shall not include any restrictions imposed upon such Transferred Shares by this Agreement, the Certificate of Incorporation or By-Laws of the Corporation or the provisions of the General Corporation Law of the State of Delaware. "Offer to Purchase" shall have the meaning provided in the recitals hereto. "Parent" shall have the meaning provided in the preamble hereto. -2- "Person" shall mean any individual, partnership, limited liability company, corporation, trust, unincorporated association or other entity which is recognized as having legal personality under national or international Law. "Purchase Price" shall have the meaning provided in Section 2.2 hereof. "Purchaser" shall have the meaning provided in the preamble hereto. "Securities Act" shall have the meaning provided in Section 4.6 hereof. "Seller" shall have the meaning provided in the preamble hereto. "Seller's Class A Shares" shall have the meaning provided in Section 2.5 hereof. "Selling AC Shareholder" shall mean The 1224 Corporation, a corporation organized and existing under the laws of the State of Delaware. "Share Register" shall mean, collectively, the register books maintained by the Corporation setting forth the names and addresses of each of the owners of the shares of capital stock of the Corporation and the number of such shares owned by each such owner, and indicating each transfer or encumbrance of such shares by any owner thereof. "Tax" or "Taxes" shall mean any net income, alternative or add-on minimum tax, advance corporation, gross income, gross receipts, sales, use, ad valorem, franchise, profits, license, value-added, withholding, payroll, employment, excise, transfer, stamp or occupation tax, governmental fee or other like assessment or charge of any kind whatsoever, together with any interest or any penalty imposed by any governmental authority with respect thereto and any liability for such amounts as a result of either being a member of an affiliated group or of a contractual obligation to indemnify any other entity. "Tender Offer" shall have the meaning provided in the recitals hereto. "Tender Offer Conditions" shall have the meaning provided in recitals hereto. "Tender Offer Documents" shall have the meaning provided in Section 2.6(b) hereof. "Tender Offer Price" shall have the meaning provided in the recitals hereto. "Transferred Shares" shall have the meaning provided in the recitals hereto. -3- ARTICLE II SALE OF STOCK AND TENDER OFFER Section 2.1 Sale of Transferred Shares. On the terms and subject to the conditions set forth in this Agreement, the Seller agrees and the Parent agrees to cause the Seller, to sell and transfer to the Purchaser at the Closing, and the Purchaser agrees to purchase from the Seller at the Closing, the Transferred Shares, free and clear of all Liens. At or immediately following the Closing, each of the Parent and the Seller shall use its reasonable best efforts to cause the Corporation to duly enter the transfer of the Transferred Shares in the Share Register. Section 2.2 Purchase Price for Transferred Shares. In full consideration for the purchase by the Purchaser of the Transferred Shares, the Purchaser shall pay to the Seller (or its designee) on the Closing Date One Hundred Million Dollars ($100,000,000) in the aggregate by wire transfer in immediately available funds to the account specified by the Seller to the Purchaser at least two business days prior to the Closing (the "Purchase Price"). For purposes of this Section 2.2, "business day" shall mean any day other than a Saturday, a Sunday or a day on which the banks in the United States or the Netherlands are authorized or obligated by Law to close. Section 2.3 Closing. The sale referred to in Section 2.1 (the "Closing") shall take place at the offices of White & Case LLP, 601 Thirteenth Street, NW, Suite 600 South, Washington, DC, as soon as practicable after the last of the conditions set forth in Articles VI and VII hereof is fulfilled or waived (subject to applicable law) but (a) in no event later than the fifth business day thereafter, or at such other time and place and on such other date as the Purchaser and the Seller shall mutually agree and (b) in any case simultaneously with the purchase of Class A Shares validly tendered pursuant to the Tender Offer (the "Closing Date"). On the Closing Date, the Seller shall, and the Parent shall cause the Seller to, deliver to the Purchaser, against payment as provided in Section 2.2 hereof, certificates representing the Transferred Shares, duly endorsed in blank, or accompanied by stock powers duly endorsed in blank, with all necessary transfer tax and other revenue stamps, acquired at the Purchaser's expense, affixed thereto. Section 2.4 Transfer Taxes. The Seller shall, and the Parent shall cause the Seller to, pay all Taxes charged to grantors, transferors or assignors under applicable Law, provided that the Purchaser shall pay any stock transfer and stamp taxes which become payable in connection with the purchase of the Transferred Shares hereunder. Section 2.5 Tender of Class A Shares. (a) The Seller hereby agrees, and the Parent agrees to cause the Seller, to tender validly (and not to withdraw) pursuant to and in accordance with the terms of the Tender Offer, in a timely manner for acceptance by the Purchaser in the Tender Offer, the 11,779,931 Class A Shares owned by the Seller on the date hereof (the "Existing Class A Shares") and any Class A Shares that may be acquired by the Seller after the date hereof and prior to the termination of this Agreement whether upon the exercise of options, warrants or rights, the conversion or exchange of convertible or exchangeable securities, or by means of purchase, dividend, distribution or otherwise (such Class A Shares, together with the Existing Class A Shares, are referred to herein as the "Seller's Class A Shares"). Each of the Parent and the Seller hereby acknowledges and agrees that the Purchaser's obligation to accept for payment and pay for Class A Shares tendered in the Tender Offer, including the Seller's Class -4- A Shares, is subject to the terms and conditions of the Tender Offer. The Purchaser agrees to use its reasonable best efforts to cause the depositary for the Tender Offer to agree to use its reasonable best efforts to notify each holder of Class A Shares tendered pursuant to the Tender Offer, if requested by such holder, of any defect in the tender of such Class A Shares which could result in such Class A Shares not being deemed validly tendered pursuant to the Tender Offer. (b) Each of the Parent and the Seller hereby agrees to permit the Purchaser to publish and disclose, and hereby consents to any prior publication and disclosure, in the Tender Offer Statement on Schedule 14D-1 with respect to the Tender Offer, the Offer to Purchase and form of related letter of transmittal as well as all other information and exhibits and any supplements or amendments thereto (the "Tender Offer Documents") its identity and the Seller's ownership of Class A Shares and the Class AL Shares, and, to the extent required by the Securities Exchange Act of 1934, as amended, an accurate summary of the material terms of the agreements, arrangements and understandings among the Parent, the Seller and the Purchaser under this Agreement. ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE PARENT AND THE SELLER Section 3. Representations and Warranties of the Parent and the Seller. In order to induce the Purchaser to enter into this Agreement and to acquire the Transferred Shares, each of the Parent and the Seller makes the following representations and warranties. Section 3.1 Legal Status. The Parent is a duly organized and validly existing corporation under the Laws of England and Wales. The Seller is a duly organized and validly existing corporation in good standing under the Laws of the State of Massachusetts. Section 3.2 Power and Authority; Enforceability. Each of the Parent and the Seller has full requisite legal capacity, power and authority to execute, deliver and perform its obligations pursuant to this Agreement and to consummate the transactions contemplated hereby and has taken all necessary corporate action to authorize the execution, delivery and performance by the Parent and the Seller of their respective obligations pursuant to this Agreement and the consummation of the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by each of the Parent and the Seller and constitutes a valid and legally binding obligation of each of the Parent and the Seller enforceable against each of the Parent and the Seller in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors' rights and to general equitable principles. Section 3.3 Ownership of Transferred Shares. The Parent and the Seller are the beneficial owners of, and prior to and on the Closing Date the Seller will be the lawful record owner of, all of the Class AL Shares and the Existing Class A Shares, in each case free and clear of all Liens. Other than as specified in the preceding sentence, as of the date of this Agreement none of the Parent, the Seller or any Affiliate of the Parent owns any shares of capital stock of the Corporation. The Seller has full legal right, power and authority to sell, assign, transfer and convey the Transferred Shares pursuant to this Agreement. The delivery to the Purchaser of the -5- Transferred Shares against payment therefor pursuant to this Agreement and of the Seller's Class A Shares pursuant to the Tender Offer against payment therefore will, in each case, transfer to the Purchaser on the Closing Date good and valid title thereto, free and clear of any Liens. Section 3.4 No Conflicts; Consents of Third Parties; Compliance with Laws. (a) The execution, delivery and performance by the Parent and the Seller of this Agreement and the consummation of the purchase of the Transferred Shares and the other transactions contemplated hereby will not (i) conflict with the Memorandum and Articles of Association and By-Laws of the Parent or the Articles of Organization or By-Laws of the Seller, (ii) conflict with, or result in the breach or termination of, or constitute a default under, any lease, charter, note, bond, mortgage, license, permit, indenture, contract, agreement, commitment, arrangement or other instrument or obligation, or any order, judgment, decree, injunction, regulation or ruling of any governmental authority or regulatory organization of competent authority, domestic or foreign, to which the Parent or the Seller is a party or by which the Parent or the Seller or any of their respective properties or assets are bound, (iii) constitute a violation by the Parent or the Seller of any Law applicable to the Parent or the Seller or any of their respective properties or assets, or (iv) result in the creation of any Lien upon the Transferred Shares, except in the case of subclause (ii) above such conflicts, breaches, terminations and defaults which would not prevent or substantially delay the consummation of the transactions contemplated by this Agreement. (b) No consent, approval, permit or authorization of, or designation, declaration or filing with, any governmental authorities or third parties is required on the part of the Parent or the Seller in connection with the execution and delivery of this Agreement and the performance of the transactions contemplated hereby. Section 3.5 Broker's or Finder's Fees. No agent, broker, person or firm acting on behalf of the Parent, the Seller or any of their Affiliates is, or will be, entitled to any commission or broker's or finder's fees from any of the parties hereto, other than the Parent, the Seller or their Affiliates. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASER Section 4. Representations and Warranties of the Purchaser. In order to induce the Parent and the Seller to enter into this Agreement and to sell the Transferred Shares, the Purchaser makes the following representations and warranties. Section 4.1 Legal Status. The Purchaser is a duly organized and validly existing public company with limited liability under the laws of the Netherlands. Section 4.2 Power and Authority; Enforceability. The Purchaser has full requisite legal capacity, power and authority to execute, deliver and perform the terms and provisions of this Agreement and to consummate the transactions contemplated hereby and has taken all necessary corporate action to authorize the execution, delivery and performance by the Purchaser of this Agreement and the consummation of the transactions contemplated hereby. This Agreement -6- has been duly authorized, executed and delivered by the Purchaser and constitutes a valid and legally binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditor's rights and to general equitable principles. Section 4.3 No Conflicts. (a) Assuming the receipts of the consents, approvals, permits, authorizations, designations or declarations, or the making of the filings, specified in clause (b) below, the execution, delivery and performance of this Agreement by the Purchaser and the performance of the provisions regarding the Tender Offer will not (i) conflict with the Articles of Association of the Purchaser, (ii) conflict with, result in the breach or termination of, or constitute a default (or give rise to any third party right of termination, cancellation, material modification or acceleration) under, any lease, charter, note, bond, mortgage, license, indenture, contract, agreement, commitment, arrangement or other instrument or obligation or any order, judgment, decree, injunction, regulation or ruling of any governmental authority or regulatory organization, domestic or foreign, to which the Purchaser is a party or by which the Purchaser or any of its properties or assets are bound, or (iii) constitute a violation by the Purchaser of any Law applicable to the Purchaser any of its properties or assets. (b) Except (i) for filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), (ii) as required by the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder in connection with the Tender Offer, (iii) the "blue sky" laws of various states, (iv) applicable Alcohol and Drug Laws and (v) applicable local permit laws, rules and regulations pertaining to the operation of the business of the Corporation and its subsidiaries, no consent, approval, permit, or authorization of, or designation, declaration or filing with, any governmental authorities or third parties is required on the part of the Purchaser in connection with the execution and delivery of this Agreement and the performance by the Purchaser of the transactions contemplated hereby. Section 4.4 Broker's or Finder's Fees. Except for Merrill Lynch, Pierce, Fenner & Smith Incorporated (whose fees and expenses will be paid by the Purchaser), no agent, broker, person or firm acting on behalf of the Purchaser or any Affiliate thereof is, or will be, entitled to any commission or broker's or finder's fees from any of the parties hereto, or from any Person controlling, controlled by or under common control with any of the parties hereto, in connection with any of the transactions contemplated by this Agreement. Section 4.5 Available Funds. The Purchaser has or will have available to it at the Closing all funds necessary to satisfy all of its obligations hereunder and in connection with the transactions contemplated by this Agreement. Section 4.6 Securities Act. The Purchaser is acquiring the Transferred Shares solely for the purpose of investment and not with a view to, or for sale in connection with, any distribution thereof in violation of the Securities Act of 1933, as amended (the "Securities Act"). The Purchaser acknowledges that the Transferred Shares are not registered under the Securities Act or any applicable state securities law, and that the Transferred Shares may not be transferred -7- or sold except pursuant to the registration provisions of the Securities Act or pursuant to an applicable exemption therefrom and pursuant to state securities laws and regulations as applicable. ARTICLE V EXCLUSIVE DEALING, OTHER COVENANTS Section 5.1 Exclusive Dealing. (a) The Parent, the Seller and each of their respective officers, directors and employees shall, and shall instruct their respective representatives, consultants, investment bankers, attorneys, accountants, agents and advisors (collectively "Agents") to, immediately cease any discussions or negotiations with any other parties that may be ongoing with respect to any purchase of the Transferred Shares or any Acquisition Proposal (as defined below). Neither the Parent nor the Seller shall directly or indirectly, take (and neither the Parent nor the Seller shall authorize or permit its Agents to so take) any action to (i) encourage, solicit or initiate the making of any offer to purchase the Transferred Shares or any Acquisition Proposal, (ii) enter into any agreement with respect to any offer to purchase the Transferred Shares or any Acquisition Proposal, or (iii) participate in any way in discussions or negotiations with, or furnish or disclose any information to, any Person (other than the Purchaser) in connection with, or take any other action to facilitate knowingly, or that such Person reasonably should have known would facilitate, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any offer to purchase the Transferred Shares or any Acquisition Proposal. "Acquisition Proposal" shall mean any inquiry, proposal or offer from any Person (other than the Purchaser) relating to any direct or indirect acquisition or purchase of all or any of the Class AL Shares, of a substantial amount of assets of the Corporation or any of its subsidiaries or of more than 10% of any class of equity securities of the Corporation or any of its subsidiaries, any tender offer or exchange offer that if consummated would result in any person beneficially owning more than 10% of any other class of equity securities of the Corporation or any of its subsidiaries, any merger, consolidation, business combination, sale of substantially all the assets, recapitalization, liquidation, dissolution or similar transaction involving the Corporation or any of its subsidiaries, other than the transactions contemplated hereby, or any other transaction involving the Corporation or any of its securities or assets the consummation of which could reasonably be expected to impede, interfere with, prevent or materially delay the Tender Offer, the acquisition of the Transferred Shares pursuant to this Agreement or the acquisition of the Class AC Shares pursuant to the Class AC Stock Purchase Agreement. (b) In addition to the obligations of the Parent and the Seller set forth in paragraph (a), on the date of receipt thereof, each of the Parent and the Seller shall advise the Purchaser of any request for information or of any offer to purchase the Transferred Shares or any Acquisition Proposal, or any inquiry or proposal with respect to any offer to purchase the Transferred Shares or any Acquisition Proposal, the material terms and conditions of such request, offer or Acquisition Proposal and of any material changes thereto, and the identity of the entity or person making any such inquiry or proposal. -8- Section 5.2 Further Assurances. Each of the parties shall execute, acknowledge, deliver and file, without further consideration, all such additional documents and take such other actions as may be necessary or reasonably requested by the other party to consummate or evidence the transactions and fulfill the obligations contemplated by this Agreement. Section 5.3 Resignations. On the Closing Date, the Seller shall, and the Parent shall cause the Seller to, cause each Person who has been elected by the Seller to the Board of Directors of the Corporation to resign effective as of the Closing Date. Section 5.4 Provisions Concerning Transferred Shares. Each of the Parent and the Seller hereby agrees that during the period commencing on the date hereof and continuing until the earlier of (i) the Closing Date or (ii) the termination date set forth in Section 8.12 hereof, at any meeting of the holders of capital stock of the Corporation, however called, or in connection with any written consent of the holders of capital stock of the Corporation, the Seller shall, and the Parent shall cause the Seller to, vote (or cause to be voted) the Transferred Shares whether issued, heretofore owned or hereafter acquired, except as otherwise agreed to in writing in advance by the Purchaser, against the following actions: (A) any extraordinary corporate transaction, such as a merger, consolidation or other business combination involving the Corporation or its subsidiaries; (B) a sale, lease or transfer of a material amount of assets of the Corporation or its subsidiaries, or a reorganization, recapitalization, dissolution or liquidation of the Corporation or its subsidiaries; or (C) (1) any change in a majority of the persons who constitute the Board of Directors of the Corporation, (2) any change in the present capitalization of the Corporation or any amendment of the Corporation's Certificate of Incorporation or By-Laws, (3) any other material change in the Corporation's corporate structure or business, or (4) any other action involving the Corporation or its subsidiaries which is intended, or would reasonably be expected, to impede, interfere with, prevent or materially delay the Tender Offer, the acquisition of the Transferred Shares pursuant to this Agreement or the acquisition of the Class AC Shares pursuant to the Class AC Stock Purchase Agreement. The Seller shall not enter into any agreement or understanding with any Person the effect of which the Seller knows or reasonably should have known would be to violate the provisions and agreements contained in this Section 5.4. Section 5.5 Restriction on Transfer, Proxies and Non-Interference. Beginning on the date hereof and ending on the earlier of the Closing Date or the termination date set forth in Section 8.12 hereof, neither the Parent nor the Seller shall (i) directly or indirectly, offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to or consent to the offer for sale, transfer, tender, pledge, encumbrance, assignment or other disposition of, any of the Transferred Shares or any of the Existing Class A Shares or any interest therein, (ii) except as contemplated by this Agreement, grant any proxies or powers of attorney, deposit any Transferred Shares or Existing Class A Shares into a voting trust or enter into a voting agreement with respect to any Transferred Shares or Existing Class A Shares, or (iii) take any action that would, to their knowledge, make any representation or warranty of the Parent or the Seller contained herein untrue or incorrect or have the effect of preventing or disabling the Parent or the Seller from performing its obligations under this Agreement. -9- Section 5.6 Changes in Shares. In the event of a stock dividend or distribution, or any change in the capital stock of the Corporation by reason of any stock dividend, split-up, recapitalization, combination, exchange of shares or the like, the term "Transferred Shares" shall be deemed to refer to and include the Transferred Shares as well as all such stock dividends and distributions and any shares into which or for which any or all of the Transferred Shares may be changed or exchanged and the Purchase Price shall be appropriately and equitably adjusted. The Seller shall be entitled to receive any cash dividend paid during the term of this Agreement by the Corporation on the Transferred Shares until the Transferred Shares are purchased hereunder and on the Seller's Class A Shares as and to the extent provided in the Tender Offer Documents. Section 5.7 Changes in Tender Offer. Without the consent of the Parent and the Seller, the Purchaser shall not (a) reduce the number of Class A Shares to be purchased in the Tender Offer, (b) reduce the Tender Offer Price, (c) modify or add to the Tender Offer Conditions in a manner that is materially adverse to the holders of Class A Shares or (d) change the form of consideration payable in the Tender Offer. Section 5.8 Tender Offer Conditions. If the Purchaser waives any Tender Offer Condition for purposes of Section 6.5 hereof or the Tender Offer, the Purchaser shall waive such condition with respect to the Tender Offer or Section 6.5 hereof, as the case may be. Section 5.9 Purchase of the Class A Shares and the Transferred Shares. (a)The Purchaser agrees that if it purchases any Class A Shares validly tendered pursuant to the Tender Offer and not withdrawn prior to the expiration of the Tender Offer, it will waive all unsatisfied conditions to the Purchaser's obligations set forth in Article VI hereof and will purchase the Transferred Shares pursuant to this Agreement. (b) The Purchaser agrees that if it purchases the Transferred Shares pursuant to this Agreement, it will waive all unsatisfied Tender Offer Conditions and will purchase any of the Seller's Class A Shares validly tendered pursuant to the Tender Offer and not withdrawn prior to the expiration of the Tender Offer. ARTICLE VI CONDITIONS TO THE PURCHASER'S OBLIGATIONS Section 6. Conditions to the Purchaser's Obligations. The obligation of the Purchaser to purchase the Transferred Shares on the Closing Date is subject to the satisfaction, at or prior to the Closing, of the following conditions: Section 6.1 Truth of Representations and Warranties. (a) The representations and warranties of the Parent and the Seller contained in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of such date, and the Purchaser shall have received a certificate signed by an executive officer of each of the Parent and the Seller, dated the Closing Date, to such effect. -10- Section 6.2 Performance of Agreements. All of the agreements of the Parent and the Seller to be performed and all of the covenants of the Parent and the Seller to be complied with prior to the Closing pursuant to the terms of this Agreement shall have been duly performed or complied with, as applicable, in all material respects and the Purchaser shall have received a certificate signed by an executive officer of each of the Parent and the Seller, dated the Closing Date, to such effect. Section 6.3 Injunction. No preliminary or permanent injunction or other order shall have been issued by any court or by any governmental or regulatory agency, body or authority which prohibits the consummation of the Tender Offer, the purchase of the Transferred Shares or any of the other transactions contemplated by this Agreement and which is in effect at the Closing Date, provided, however, that, in the case of a decree, injunction or other order, each of the parties shall have used reasonable efforts to prevent the entry of any such injunction or other order and to appeal as promptly as possible any decree, injunction or other order that may be entered. Section 6.4 Consents and Approvals. All governmental and third-party consents, waivers and approvals, if any, specifically disclosed in this Agreement or necessary to permit the consummation of the transactions contemplated by this Agreement shall have been received. All time periods under the HSR Act applicable to the purchase of the Class AC Shares under the Class AC Stock Purchase Agreement and the purchase of the Transferred Shares under this Agreement shall have expired or been terminated. No governmental or other instrumentality or agency shall have required that, in exchange for approval of the transactions contemplated by this Agreement, the Purchaser, the Corporation or any of their respective Affiliates sell or otherwise dispose of, or hold separate (through the establishment of a trust or otherwise) particular assets or categories of assets, or businesses of the Purchaser, the Corporation or any of their respective Affiliates or withdraw from doing business in a particular jurisdiction or take any other action that, in the aggregate, in the sole judgment of the Purchaser, would reasonably be expected to substantially impair or substantially reduce the Purchaser's ability to control, direct or manage on a day-to-day basis the business or affairs of the Corporation or to substantially impair or substantially reduce the overall benefits expected, as of the date hereof, to be realized by the Purchaser from the consummation of the transactions contemplated by this Agreement or would have a material adverse effect on the business, properties, assets, liabilities, condition (financial or otherwise), prospects, operations or results of operations of the Purchaser and its subsidiaries taken as a whole or the Corporation and its subsidiaries taken as a whole. Section 6.5 Tender Offer Conditions. At any time on or after the date hereof and at or before the time of payment for the Transferred Shares hereunder, none of the Tender Offer Conditions shall have occurred. Section 6.6 Resignations. Each Person who has been appointed by the Seller to the Board of Directors of the Corporation (each a "Director") shall have delivered to the Purchaser their written resignation from such position effective as of the Closing Date or the Purchaser shall have received written evidence satisfactory to it that any Director who has not -11- delivered such written resignation has been removed from such position effective as of the Closing Date. Section 6.7 Class AC Stock Purchase Agreement. The purchase of all of the Class AC Shares pursuant to the terms of the Class AC Stock Purchase Agreement shall be consummated simultaneously with the purchase of the Transferred Shares pursuant to this Agreement. Section 6.8 Tender Offer. The purchase of any Class A Shares tendered pursuant to the Tender Offer and not withdrawn prior to the expiration of the Tender Offer shall be consummated simultaneously with the purchase of the Transferred Shares pursuant to this Agreement. ARTICLE VII CONDITIONS TO THE OBLIGATIONS OF THE PARENT AND THE SELLER Section 7. Conditions to the Obligations of the Parent and the Seller. The obligation of the Seller to, and of the Parent to cause the Seller to, sell the Transferred Shares on the Closing Date is subject to satisfaction, at or prior to such date, of the following conditions: Section 7.1 Truth of Representations and Warranties. The representations and warranties of the Purchaser contained in this Agreement shall be true and correct in all respects on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of such date, and the Parent and the Seller shall have received a certificate signed by an authorized officer of the Purchaser, dated the Closing Date, to such effect. Section 7.2 Performance of Agreements. All of the agreements of the Purchaser to be performed and all of the covenants of the Purchaser to be complied with prior to the Closing pursuant to the terms of this Agreement shall have been duly performed or complied with, as applicable, and the Parent and the Seller shall have received a certificate signed by an authorized officer of the Purchaser, dated the Closing Date, to such effect. Section 7.3 Injunction. No preliminary or permanent injunction or other order shall have been issued by any court or by any governmental or regulatory agency, body or authority of competent jurisdiction which prohibits the consummation of the Tender Offer, the purchase of the Transferred Shares or any of the other transactions contemplated by this Agreement and which is in effect at the Closing Date, provided, however, that, in the case of a decree, injunction or other order, each of the parties shall have used reasonable efforts to prevent the entry of any such injunction or other order and to appeal as promptly as possible any decree, injunction or other order that may be entered. Section 7.4 Tender Offer. The purchase of any Class A Shares tendered pursuant to the Tender Offer and not withdrawn prior to the expiration of the Tender Offer shall be consummated simultaneously with the purchase of the Transferred Shares pursuant to this Agreement. -12- Section 7.5 Class AC Stock Purchase Agreement. The purchase of all of the Class AC Shares pursuant to the terms of the Class AC Stock Purchase Agreement shall be consummated simultaneously with the purchase of the Transferred Shares pursuant to this Agreement. ARTICLE VIII MISCELLANEOUS Section 8.1 Representations and Warranties. The respective representations and warranties of the Parent, the Seller and the Purchaser contained herein or in any certificates or other documents delivered prior to or at the Closing shall not be deemed waived or otherwise affected by any investigation made by any party. Each and every such representation and warranty shall serve solely as a condition to closing and shall expire with, and be terminated and extinguished by, the Closing and thereafter none of the Parent, the Seller, the Purchaser nor any of their respective officers, directors, employees, representatives, consultants, investment bankers, attorneys, accountants or other agents shall be under or subject to any liability whatsoever with respect to any such representation or warranty. This Section 8.1 shall have no effect upon any other obligation of the parties hereto. Section 8.2 Expenses. The parties hereto shall pay all of their own expenses relating to the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of their respective counsel and financial advisers. Section 8.3 Governing Law. This Agreement shall be construed in accordance with, and be governed by, the Laws of the State of Delaware. Each of the parties hereby irrevocably and unconditionally: (a) submits itself in any legal action or proceeding relating to this Agreement, or for recognition and enforcement of any judgment in respect thereof, to the general jurisdiction of the courts of the State of Delaware, the federal courts of the United States of America located in Delaware and appellate courts from any thereof; (b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same; (c) agrees that service of process in any such action or proceeding will be in accordance with the laws of the State of Delaware and agrees to appoint an agent for service of process in the State of Delaware within 10 business days of the date hereof; (d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law; and (e) waives the right to require a trial by jury with respect to any such action or proceeding. -13- Section 8.4 Headings. The headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement. Section 8.5 Publicity. Except as required by applicable U.S. federal securities law or the rules and regulations of any U.S. or foreign securities exchange upon which the securities of the parties hereto are listed for trading, or as otherwise provided for in this Agreement, no announcement or other publicity relating to this Agreement or the Corporation shall be made or issued directly or indirectly by or on behalf of any party hereto without the prior approval of the other parties hereto (which shall not be unreasonably withheld). Section 8.6 Notices. All notices, requests, demands and other communications required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given when delivered in person, or when sent by telex or telecopy or other facsimile transmission (with receipt confirmed), or when sent via express delivery service and addressed as follows (or at such other addresses as the parties may designate by written notice in the manner aforesaid): If to the Purchaser: Koninklijke Ahold N.V. Albert Heijnweg 1 1507 EH Zaandam The Netherlands Telecopier: 011 31 75 659 83 66 Attention: Paul P.J. Butzelaar, Esq. with a copy to: White & Case LLP 1155 Avenue of the Americas New York, New York 10036 Telecopier: (212) 354-8113 Attention: Maureen Brundage, Esq. If to the Parent or the Seller: J Sainsbury plc Stamford House Stamford Street London SE1 911 England Telecopier: 011 44 171 695 7610 Attention: Nigel F. Matthews, Corporate Secretary -14- with a copy to: Sullivan & Cromwell 125 Broad Street New York, New York 10004 Telecopier: (212) 558-3588 Attention: Neil T. Anderson, Esq. or to such other person as shall be designated in writing by any such party, and such notice or communication shall be deemed to have been given as of the date so delivered, sent by telecopier or mailed. Section 8.7 Binding Effect; Benefit; Assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns, but neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto without the prior written consent of the other parties. Notwithstanding anything in this Section 8.6 to the contrary, it is expressly understood and agreed that the Purchaser may assign this Agreement and its rights, interests and obligations hereunder to any wholly-owned subsidiary of the Purchaser; provided, however, that no such assignment shall relieve the Purchaser of any of its obligations hereunder. Nothing in this Agreement, expressed or implied, is intended to confer on any Person other than the parties hereto or their respective successors and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement. Section 8.8 Best Efforts. Subject to the terms and conditions provided herein, each of the Purchaser, the Parent and the Seller shall, with respect to matters within their respective control, cooperate and use their respective best efforts to, (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all reasonable things necessary and proper under applicable law to consummate the transactions contemplated hereby as promptly as practicable, (ii) obtain from any governmental authority, regulatory organization or other instrumentality or agency or any other third party any licenses, permits, consents, waivers, approvals, authorizations, qualifications, or orders required to be obtained or made by the Purchaser, the Parent, the Seller or any of their subsidiaries in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, and (iii) as promptly as practicable, make, or cause to be made, all filings and other submissions necessary, proper or advisable with respect to this Agreement and the transactions contemplated hereby under any applicable laws or regulations. The Purchaser, the Parent and the Seller shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the non-filing party and its advisors prior to filing and, if requested, to accept all reasonable additions, deletions or changes suggested in connection therewith. The Purchaser, the Parent and the Seller shall use their respective best efforts to furnish to each other all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable law in connection with the transactions contemplated by this Agreement. Notwithstanding anything to the contrary in this Section 8.7, none of the Purchaser, the Parent, the Seller, the Corporation or any of their respective -15- subsidiaries shall be required to sell or otherwise dispose of, or hold separate (through the establishment of a trust or otherwise) particular assets or categories of assets, or business of the Purchaser, the Seller, the Parent, the Corporation or any of their affiliates or withdraw from doing business in a particular jurisdiction or take any other action that, in the aggregate, in the sole judgment of the Purchaser, would reasonably be expected to substantially impair or substantially reduce the Purchaser's ability to control, direct or manage on a day-to-day basis the business or affairs of the Corporation or to substantially impair or substantially reduce the overall benefits expected, as of the date hereof, to be realized by the Purchaser from the consummation of the transactions contemplated by this Agreement or would have a material adverse effect on the business, properties, assets, liabilities, condition (financial or otherwise), prospects, operations or results of operations of the Purchaser and its subsidiaries taken as a whole or the Corporation and its subsidiaries taken as a whole. Section 8.9 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same Agreement. Section 8.10 Entire Agreement. This Agreement, including the other documents referred to herein which form a part hereof, contains the entire understanding of the parties hereto with respect to the subject matter contained herein and therein. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. Section 8.11 Amendments. This Agreement may not be changed, amended, waived, or modified orally, but only by an agreement in writing signed by the Purchaser, the Parent and the Seller. Section 8.12 Severability. If any term, provision, covenant or restriction contained in this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory policy, the remainder of the terms, provisions, covenants and restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. Section 8.13 Termination of Agreement. All parties hereto agree to use their best efforts to fulfill the requirements of Articles VI and VII as soon as practicable. If any precondition to the completion of the transactions contemplated hereby is not fulfilled on or prior to December 31, 1998, then any party may terminate this Agreement and thereafter this Agreement shall become void and have no effect, without any liability hereunder of either party to the other party except for any breach of this Agreement. This Agreement shall terminate and become void and have no effect, without any liability hereunder of either party to the other party except for any breach of this Agreement, if the Class AC Stock Purchase Agreement or the Tender Offer shall be terminated pursuant to their respective terms prior to the purchase of any Transferred Shares hereunder. Section 8.14 Specific Performance. Each of the parties hereto recognizes and acknowledges that a breach by it of any covenants or agreements contained in this Agreement will cause the other party to sustain damages for which it would not have an adequate remedy at law -16- for money damages, and therefore each of the parties hereto agrees that in the event of any such breach the aggrieved party shall be entitled to the remedy of specific performance of such covenants and agreements and injunctive and other equitable relief in addition to any other remedy to which it may be entitled, at law or in equity. Section 8.15 Remedies Cumulative. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any thereof by any party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such party. Section 8.16 No Waiver. The failure of any party hereto to exercise any right, power or remedy provided under this Agreement or otherwise available in respect hereof at law or in equity, or to insist upon compliance by any other party hereto with its obligations hereunder, and any custom or practice of the parties at variance with the terms hereof shall not constitute a waiver by such party of its right to exercise any such or other right, power or remedy or to demand such compliance. -17- IN WITNESS WHEREOF, each of the Purchaser, the Parent and the Seller has caused its corporate name to be hereunto subscribed by its officer thereunto duly authorized all as of the day and year first above written. J SAINSBURY PLC By: /s/ DAVID M. BREMNER ----------------------- Name: David M. Bremner Title: Deputy Group Chief Executive JS MASS. SECURITIES CORP. By: /s/ SANDRA J. DORAN ----------------------- Name: Sandra J. Doran Title: President KONINKLIJKE AHOLD N.V. By: /s/ Robert Zwartendijk ----------------------- Name: R. Zwartendijk Title: Executive Vice President EX-99.5 3 EXHIBIT 5 CONFIDENTIALITY AGREEMENT AGREEMENT made as of February 2, 1998, between Koninklijke Ahold N.V., a public company with limited liability, incorporated under the laws of The Netherlands with its corporate seat in Zaandam (municipality Zaanstad), The Netherlands ("Ahold"), and 1224 Corporation, a Delaware corporation ("1224 Corp.") (each, a "Party" and collectively, the "Parties"). WHEREAS, the Parties have expressed an interest in discussing the possibility of an acquisition from 1224 Corp. of outstanding shares of capital stock of Giant Food Inc., a Delaware corporation ("Giant") (the "Transaction"); WHEREAS, in connection therewith Ahold has requested oral and written information with respect to Giant's business, assets, financial condition, operations and prospects which Giant will provide to Ahold; and WHEREAS, as conditions to the exchange of such information, Ahold is required to agree, as set forth below, (i) to treat confidentially such information and any other information that Ahold or any representative thereof receives from 1224 Corp., Giant or any of their respective representatives, whether received before or after the date of this Agreement, together with all analyses, compilations, studies or other documents or records prepared by Ahold or any of its representatives which contain or otherwise reflect or are generated from such information (collectively, "Received Material") and (ii) to take or abstain from taking certain other actions as set forth below. As used herein with respect to any Party, the term "representatives" means its affiliates, directors, officers, employees, agents and representatives, including financial advisors, consultants and counsel and the term "affiliate" has the meaning provided in Rule 12b-2 promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in any event, shall include any person who on the date hereof or at the time of determination thereof, directly or indirectly, owns 10% or more of such Party. NOW, THEREFORE, in consideration of the mutual convenants and agreements set forth herein, the Parties agree as follows: 1. Ahold acknowledges and agrees that Received Material is a valuable and proprietary asset, has competitive value and is of a confidential nature. 2. Ahold agrees that, except as 1224 Corp. may otherwise agree in writing in advance, it will, and each of its representatives will, treat confidentially, preserve and protect with the same standard of care afforded by Ahold to any of its documents and not disclose any Received Material and will use Received Material solely to evaluate the Transaction; provided, however, that Ahold may disclose Received Material or portions thereof only to those representatives who need to know such information solely for the purpose described above (it being understood that (a) each such representative shall be informed of the confidential nature of Received Material and shall be directed to treat Received Material confidentially, not to use it other than for the purpose described above and to otherwise comply with the provisions hereof applicable to representatives and (b) that, in any event, Ahold shall be responsible for any actions taken by any of its representatives which if such representative was a party hereto would breach a provision of this Agreement applicable to representatives). 3. The term "Received Material" shall not include information (i) which was or becomes generally available to the public other than as a result of a disclosure by Ahold or by any representative thereof in breach of this Agreement, (ii) which was or becomes available on a non-confidential basis from a source other than 1224 Corp. or Giant or any representative thereof, provided that such source is not and was not known to Ahold to be bound by a confidentiality agreement with 1224 Corp. or Giant or any representative thereof or by any other contractual, legal or fiduciary obligation to 1224 Corp. or Giant which would prohibit the disclosure of such information to Ahold, or (iii) which was within the possession of Ahold or any affiliate thereof prior to such receipt. The term "Received Material" shall also not include any analyses, compilations, studies or other documents or records that have been prepared by Ahold or its representatives solely from information of the nature described in any of clauses (i), (ii) or (iii) of this paragraph 3. 4. Each Party agrees that, without the prior written consent of the other Party, it will not, and will direct its representatives not to, disclose to any person the fact that discussions regarding the Transaction (or any other discussions between or involving the Parties) are taking or have taken place or other facts with respect to such discussions, including the status thereof, or the fact (if such becomes the case) that any confidential information has been exchanged, nor otherwise make any public disclosure (whether written or oral) with respect to this Agreement or the matters contemplated hereby, except and only to the extent that such Party has been advised by legal counsel that such disclosure is required by law and then, to the extent practicable, only after prior notice to the other Party. The term "person" as used in this Agreement shall be broadly defined to include, without limitation, any corporation, partnership, company or individual, but shall not include (i) those officers of Giant who are informed of the Transaction in order to provide the information requested by Ahold, (ii) those directors of Giant who are members of the Special Committee of the Board of Directors of Giant and (iii) with the prior written consent of Ahold, the remaining members of the Board of Directors of Giant. 5. If Ahold or any representative thereof is requested or required (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any Received Material, it will, to the extent permitted by applicable law, notify 1224 Corp. promptly and, to the extent practicable, prior to any disclosure, so that 1224 Corp. or Giant, as the case may be, may seek any appropriate protective order and/or take any other appropriate action. In the event such protective order is not obtained, or that 1224 Corp. waives compliance with the provisions hereof, (i) Ahold or its representative, as the case may be, may disclose to any tribunal or regulatory or administrative body with jurisdiction only that portion of the Received Material which it is required to be disclosed, and shall exercise reasonable best efforts to obtain assurance that confidential treatment will be accorded such Received Material and (ii) Ahold shall not be liable for such disclosure unless such disclosure to such tribunal or regulatory or administrative body was caused by or resulted from a previous disclosure by Ahold or any representative thereof not permitted by this Agreement. 2 6. Each Party hereby acknowledges to the other Party that it is aware, and will advise its representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any persons who are in possession of material, non-public information with respect to an issuer from purchasing or selling securities of such issuer or, subject to certain limited circumstances, from communicating such information to any other person. 7. In the event that the Parties do not agree to a Transaction within 90 days of the date hereof (which period may be extended by the Parties by mutual written agreement), or if either Party terminates discussions prior to such 90-day period, Ahold and its representatives will, as promptly as practical following a request from 1224 Corp., deliver to 1224 Corp. all Received Material and any other material (whether in written, electronic, magnetic or other form) containing or reflecting any information in the Received Material (whether prepared by Ahold, its representatives or otherwise) and will not retain any copy or other extract or reproduction in whole or in part thereof; except that, all Received Material whether in written, electronic, magnetic or other form whatsoever, prepared by Ahold or any representative thereof containing or reflecting information in the Received Material may be destroyed and such destruction shall be certified in writing to 1224 Corp. by an authorized officer supervising such destruction. 8. Ahold understands that except as may be provided for in such definitive agreement or agreements, if any, as may be entered into in connection with a Transaction, none of 1224 Corp., Giant or any of their respective representatives makes any representation or warranty as to the accuracy or completeness of any Received Material and no liability (on any basis including, without limitation, in contract, tort or otherwise) to Ahold or any representative thereof shall result from its use. 9. Each party agrees that unless and until a definitive agreement between the parties hereto with respect to a Transaction has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to a Transaction by virtue of this or any written or oral expression with respect to such a Transaction by any of its directors, officers, employees, or other representatives or its advisors or representative thereof except of the matters specifically agreed to in this letter. 10. It is understood and agreed that money damages would not be a sufficient remedy for any breach of this Agreement and that the Parties shall be entitled to specific performance and injunctive relief as remedies for any such breach and neither the Parties nor their representatives will oppose the granting of such relief. Such remedies shall not be deemed to be the exclusive remedies for breach of this Agreement but shall be in addition to all other remedies available at law or in equity to the Parties. 11. This Agreement shall inure to the benefit of and be enforceable by the Parties and their successors. 12. The Parties agree and acknowledge that nothing contained herein shall limit, restrict or otherwise affect the rights of the Parties to compete with each other, provided that the 3 Received Material will be used by Ahold solely to evaluate the Transaction and not for any operating or other purpose. 13. It is further understood that no failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. 14. This Agreement shall remain in effect until the earlier of (i) three years from the date hereof and (ii) consummation of the Transaction. 15. This Agreement (a) shall be governed and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed within such State and (b) may not be terminated or modified nor any of its provisions waived, except in a writing signed by a duly authorized officers of both Parties. 16. Each of the Parties agrees that any legal action or proceeding with respect to this Agreement may be brought in the Courts of the State of Delaware or the United States District Court for the District of Delaware, by execution and delivery of this Agreement, each Party hereby irrevocably submits itself in respect of its property, generally and unconditionally to be the non-exclusive jurisdiction of the aforesaid courts in any legal action or proceeding arising out of this Agreement. Each of the Parties hereby irrevocably waives any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions or proceedings arising out of or in connection with this Agreement brought in the courts referred to in the preceding sentence. Each Party consents to process being served in any action or proceeding by the mailing of a copy thereof to the address set forth opposite its name below and agrees that such service upon receipt shall constitute good and sufficient service of process or notice thereof. Nothing in this paragraph shall affect or eliminate any right to serve process in any other matter permitted by law. 17. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which shall be deemed the same instrument. 4 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed as of the day and year first above written. Address: KONINKLIJKE AHOLD N.V. Albert Heijnweg 1 1507 EH Zaandam, The Netherlands By: /s/ A. M. Meurs ----------------------------- Name: A. M. Meurs Title: Executive Vice President 1013 Centre Road, 1224 CORPORATION Wilmington, DE 19805 By: /s/ Pete Manos ----------------------------- Name: Pete Manos Title: Chairman and President 5 EX-99.6 4 EXHIBIT 6 KONINKLIJKE AHOLD N.V. Albert Heijnweg 1 1507 EH Zaandam The Netherlands April 27, 1998 The 1224 Corporation 6300 Sheriff Road Landover, Maryland 20785 Attention: David W. Rutstein Gentlemen: This letter confirms our mutual understandings and intentions concerning negotiations between Koninklijke Ahold N.V. (the "Purchaser") and The 1224 Corporation (the "Seller"), regarding the possible purchase by the Purchaser, directly or through one of its affiliates, of all of the outstanding Class AC Voting Common Stock (the "AC Shares") of Giant Food Inc. (the "Company") from the Seller. It is the parties' intention that the negotiations regarding such possible purchase and of definitive transaction documents continue after the execution of this letter and the parties each agree to negotiate in good faith. During the period from the date hereof until May 31, 1998, none of the Seller, or any of its officers, directors, employees, representatives, agents or advisors (collectively "Agents") shall, directly or indirectly, take any action (other than an action directly related to negotiations with the Purchaser) to (i) encourage, initiate or solicit the making of an Acquisition Proposal (as defined below), (ii) engage in discussions or negotiations with, or provide any information to, any entity or person in connection with, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, or (iii) enter into an agreement with respect to an Acquisition Proposal; provided, however, that, subject to compliance by the Seller with the immediately succeeding sentence, (a) the Seller, in response to an unsolicited Acquisition Proposal from J. Sainsbury (USA) Holdings Inc. or any affiliate thereof (collectively "Sainsbury"), may participate in discussions or negotiations with, or furnish information to, Sainsbury if the Board of Directors of the Seller reasonably determines that the unsolicited Acquisition Proposal proposed by Sainsbury is reasonably likely to result in a Sainsbury Superior Proposal (as defined below) and believes (based upon the advice of outside legal advisors of recognized standing in the state of Delaware) that failing to take such action is reasonably likely to constitute a breach of its fiduciary duties and (b) the Seller may enter into an agreement with respect to a Sainsbury Superior Proposal if, within ten days of receipt of written notice from the Seller with respect to such Sainsbury Superior Proposal pursuant to subclause (i) of the next succeeding sentence, the Purchaser fails to have (1) executed and delivered to the Seller a Stock Purchase Agreement in substantially the form of the April 17, 1998 draft of the Stock Purchase Agreement by and between the Purchaser and the Seller relating to the purchase by the Purchaser from the Seller of the AC Shares (the "Draft AC The 1224 Corporation April 27, 1998 Page 2 Stock Purchase Agreement"), but as modified (w) to eliminate the condition contained in Section 6.6 of the Draft AC Stock Purchase Agreement and all references to a stock purchase agreement by and between the Purchaser and Sainsbury, (x) to change all references to the Agreement and Plan of Merger by and among the Purchaser, a wholly-owned subsidiary thereof and the Company (the "Merger Agreement") so as to refer instead to the agreement referred to in subclause (2) of this sentence, (y) to include in Section 2.2 thereof as the price to be paid per AC Share by the Purchaser to the Seller thereunder the Agreed Upon Price (as defined below) or, if there is no Agreed Upon Price, the price per AC Share offered by Sainsbury to the Seller pursuant to the Sainsbury Superior Proposal and (z) to reflect the mutually acceptable resolution of the issues that have been raised by the Purchaser or the Seller with respect to the Draft AC Stock Purchase Agreement and that have not been resolved prior to the date hereof which resolution the Purchaser and the Seller agree to negotiate in good faith, and (2) executed and delivered to the Company an agreement containing the representations, warranties and covenants contained in the April 17, 1998 draft of the Merger Agreement (the "Draft Merger Agreement") as modified to reflect the mutually acceptable resolution of the issues that have been raised by the Purchaser, the Seller or the Company with respect to the Draft Merger Agreement and that have not been resolved prior to the date hereof, which resolution the Purchaser and the Seller agree (and the Seller agrees to use its best efforts to cause the Company) to negotiate in good faith. The Seller promptly shall advise the Purchaser (i) orally and in writing of the receipt of any Acquisition Proposal (including from or otherwise involving Sainsbury) and of the identity of the entity or person making such Acquisition Proposal and of the material terms thereof and of any changes thereto and (ii) orally prior to commencing any discussions or negotiations between the Seller or any of its Agents, on the one hand, and Sainsbury or any of its Agents, on the other hand, (x) regarding an Acquisition Proposal by Sainsbury or (y) which could reasonably lead to a Sainsbury Superior Proposal, and subsequently regarding the progress of any such negotiations or discussions. As used herein the term "Acquisition Proposal" means any proposal to purchase or acquire, directly or indirectly, all or any of the AC Shares of the Company, a substantial amount of the assets of the Company or any of its subsidiaries or more than 10% of any class of equity securities of the Company or any of its subsidiaries, any tender offer or exchange offer that if consummated would result in any person beneficially owning more than 10% of any class of equity securities of the Company or any of its subsidiaries, any merger, consolidation, business combination, sale of substantially all the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company or any other transaction, the consummation of which could reasonably be expected to dilute materially the benefits to the Purchaser of the acquisition of the AC Shares. As used herein the term "Sainsbury Superior Proposal" means any bona fide proposal from or otherwise involving Sainsbury to purchase all of the AC Shares of the Company in cash at a price per share that is either (x) greater than the price per AC Share agreed upon at the time by the Purchaser and the Seller (the "Agreed Upon Price") or (y) if the Purchaser and the Seller have not reached an agreement on the price to be paid per AC Share, greater than the price per AC Share most recently proposed to the Seller by the Purchaser, and on terms which the Board of Directors of the Seller determines in its good faith reasonable judgment (based upon the advice of The 1224 Corporation April 27, 1998 Page 3 outside financial and legal advisors) to be as or more favorable to the Seller and the Company than the transactions contemplated by the Draft AC Stock Purchase Agreement (i) which is not subject to a financing condition and as to which Sainsbury has represented and warranted to the Seller in writing that financing is or will be available and (ii) which does not provide for any breakup fee or other inducement to Sainsbury other than reimbursement of documented out-of-pocket expenses incurred in connection with the Sainsbury Superior Proposal. Except as otherwise required by law, neither of the parties hereto (nor any affiliate, or Agent thereof) shall issue any press release or make any other statement intended for public distribution relating to, or connected with, this letter or the matters contained herein without obtaining the prior approval of the other party hereto. Each of the parties hereto recognizes and acknowledges that a breach by it of any agreements contained in this letter will cause the other party to sustain damages for which it would not have an adequate remedy at law for money damages, and therefore each of the parties hereto agrees that in the event of any such breach the aggrieved party shall be entitled to the remedy of specific performance of such agreements and injunctive and other equitable relief in addition to any other remedy to which it may be entitled, at law or in equity. Except for the agreements set forth in the three immediately preceding paragraphs), this letter does not represent any binding commitment or legal obligation of any kind whatsoever by the Purchaser or the Seller in connection herewith with respect to the transaction contemplated hereby. Such binding commitment or legal obligation shall arise only when and if the definitive transaction documents, developed as a result of the negotiations between the parties are in fact executed by the parties. Notwithstanding anything contained in this letter to the contrary, this letter may be terminated by either the Purchaser or the Seller upon delivery of written notice to the other party to such effect if the Purchaser and Seller have not agreed on or prior to May 4, 1998 upon the price per AC Share that would be paid by the Purchaser to the Seller pursuant to the AC Stock Purchase Agreement. In the event of such termination, this letter shall become void and have no further effect. This letter shall not be amended or modified except in writing signed by the parties hereto. This letter shall be governed by, and construed in accordance with, the laws of the State of Delaware. The parties agree that any legal action or proceeding relating to this letter, or for recognition and enforcement of any judgment in respect thereof, shall be instituted in the courts of the State of Delaware, the courts of the United States of America located in Delaware and appellate courts of any thereof. The 1224 Corporation April 27, 1998 Page 4 This letter may be executed in one or more counterparts, each of which shall be an original, but all such counterparts shall together constitute but one and the same instrument. If the foregoing correctly sets forth our mutual understanding with respect to the proposed negotiations, please so indicate by signing the enclosed copy of this letter and returning it to us. KONINKLIJKE AHOLD N.V. By /s/ Robert Zwartendijk ------------------------------- Name: Robert Zwartendijk Title: Executive Vice President Acknowledged and Agreed, this 27 day of April, 1998 THE 1224 CORPORATION By /s/ David W. Rutstein --------------------------------------- Name: David W. Rutstein Title: Vice President and Secretary -----END PRIVACY-ENHANCED MESSAGE-----