Exhibit 10.2


 





 


Fortis SA/NV


For the attention of Mr. Gilbert Mittler


Chief Financial Officer


Rue Royale 20


1000 Brussels


Belgium


 


Fortis N.V.


For the attention of Mr. Gilbert Mittler


Chief Financial Officer


Archimedelaan 6


3584 BA Utrecht


The Netherlands


 


16 May 2007


 


Dear Sirs


 


Re:                            ABN AMRO Holding N.V. - Standby Underwriting Commitment in
favour of Fortis


 


1.             We are writing in connection with
the proposed participation of Fortis SA/NV and Fortis N.V. (together Fortis) in a
consortium comprising Fortis, The Royal Bank of Scotland Group plc and Banco
Santander Central Hispano, S.A. (together, the Investors) formed for the sole purpose
of acquiring the entire issued and to be issued share capital of ABN AMRO
Holding N.V. (ABN AMRO)
(the Proposed
Acquisition)
on terms to be agreed by the Investors. 
In order to finance Fortis’s participation in the Proposed Acquisition,
Fortis is contemplating effecting an equity offering to raise up to
EUR17,000,000,000 (the Financing
Amount).


2.             On the basis of and subject to the
terms of this letter, Merrill Lynch International (MLI) hereby
undertakes to underwrite an equity offering by Fortis to raise an amount not
exceeding EUR17,000,000,000 solely for the purposes of financing Fortis’s
participation in the Proposed Acquisition, and Fortis SA/NV and Fortis N.V.
undertake to effect such equity offering, subject to shareholders’ approval, at
such price as shall be determined by Fortis and MLI pursuant to paragraph 9
below.  Such standby underwriting
commitment cannot be sub-underwritten without prior express consent of
Fortis (such consent not to be unreasonably withheld or delayed).


3.             Each of Fortis SA/NV and Fortis
N.V. hereby irrevocably undertakes:


(a)                                  if the condition set out in paragraph 4 is
fulfilled, to raise the Financing Amount by way of an issue of new Fortis
unified shares (New
Fortis Shares), each representing one share in Fortis SA/NV and
one share in Fortis N.V., to Fortis’s existing shareholders by way of a
(statutory, or as the case may be, non statutory) rights issue (which, for the
avoidance of doubt, includes any associated rump offering), structured in
accordance with applicable Belgian and Dutch corporate law (the Rights Issue);


	
  Merrill
  Lynch International

  	
   

  	
  Merrill Lynch Financial Centre

  2 King Edward Street

  London EC1A 1HQ

  	
   

  	
  Tel:         020 7628 1000



  



 


Registered
in England (No. 2312079). Registered Office: Merrill Lynch Financial Centre, 2
King Edward Street, London EC1A 1HQ. VAT No. GB 245 1224 93.

A subsidiary of Merrill Lynch & Co., Inc., Delaware, U.S.A. Regulated by
The Financial Services Authority Limited. Member of the London Stock Exchange.


 

















 


(b)                                 to take any and all actions which are
necessary for such Rights Issue including, without limitation:


(i)                      preparing and submitting to any applicable stock exchange
or exchanges or other regulatory authority or authorities in such
jurisdictions, if any, which may be agreed by Fortis and MLI at the time of the
Rights Issue based on Fortis’s shareholding structure, a prospectus and/or
other documents (including but not limited to public notices) and obtaining any
necessary approvals and consents that may be required in connection with the
Rights Issue under any applicable law or regulation in such jurisdictions;


(ii)                   providing MLI and its advisers with all documentation,
data and other information as MLI may reasonably request in connection with
customary due diligence to be performed for the purposes of the Rights
Issue  and, upon reasonable notice and at
reasonable times, reasonable access to its officers, employees, auditors, legal
counsel, properties, offices, plants and other facilities;


(iii)                as soon as reasonably practicable following the
approval by Fortis’s boards of directors of the making of a formal offer,
together with the Investors, for the entire issued and to be issued share
capital of ABN AMRO (the ABN
AMRO Offer), to convene extraordinary general meetings of each
of Fortis SA/NV and Fortis N.V. at which resolutions authorising each of Fortis
SA/NV’s and Fortis N.V.’s boards of directors to issue such number of New
Fortis Shares as is necessary to raise the maximum Financing Amount shall be
submitted for approval by shareholders (it being understood that the maximum
number of New Fortis Shares to which such authorisation will relate will be
limited to the maximum permitted under Belgian and Dutch law and Fortis
acknowledges that MLI’s underwriting commitment shall be limited to the
underwriting of such maximum number of New Fortis Shares at an issue price to
be determined in accordance with paragraph 9); and


(iv)               to instruct Fortis’s auditors in relation to the
accounting work to be undertaken (including the provision of comfort letters
and, as applicable, opinions customarily given by auditors and/or reporting
accountants, as the case may be) in connection with rights issues.


4.             The obligations of MLI to
underwrite the Rights Issue are conditional upon the Investors making a formal
offer for the entire issued and to be issued share capital of ABN AMRO by no
later than 30 September 2007.


5.             If the condition set out in
paragraph 4 is not fulfilled, MLI’s obligation to underwrite a Rights Issue
shall terminate and no party to this letter shall have any claim against any
other party to this letter for costs, damages, compensation or otherwise except
that:


(a)                                  such termination shall be without prejudice
to any accrued rights or obligations under the terms of this letter; and


(b)                                 Fortis shall pay the commissions, fees and
expenses specified in the Side Letter (as defined below).


 


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6.             MLI shall be entitled, in its
absolute discretion and upon such terms as it thinks fit, to extend the time
provided for in paragraph 4 in respect of all or any part of the performance
thereof.


7.             If the condition set out in paragraph
4 is not fulfilled by 30 September 2007, the obligations of MLI to underwrite a
Rights Issue shall terminate (without prejudice to paragraph 12 below) and
Fortis shall have no claim against MLI for costs, damages, compensation or
otherwise that arise in connection therewith.


8.             If the ABN AMRO Offer lapses or
expires, or if the Investors announce that the ABN AMRO Offer will not be made
or has been terminated, or if all of the conditions to the ABN AMRO Offer are
not satisfied or waived by 31 December 2007, this letter and the undertakings
in it shall automatically terminate.


9.             Fortis and MLI acknowledge and
agree that the issue price of the New Fortis Shares proposed to be issued in
connection with the Rights Issue will be determined by Fortis and MLI at the
time the Rights Issue is launched, acting reasonably and in good faith and
taking account of, amongst other things, the results of MLI’s due diligence
exercise, investor feedback, the then prevailing market conditions, the
applicable Belgian and Dutch company law requirements, the listing rules of
Euronext Amsterdam and Euronext Brussels, the market price of a Fortis share on
Euronext Amsterdam and Euronext Brussels immediately prior to launch, and
customary discounts to market price for rights issues.


10.


(a)                                  Fortis and MLI undertake and agree to
negotiate reasonably and in good faith the terms and conditions of an
underwriting agreement to be entered into by the parties in connection with the
Rights Issue at the latest on the day before the day of the opening of the
subscription period (the Underwriting
Agreement).  The parties
agree that the terms and conditions of the Underwriting Agreement will be
customary for international rights issues, including, for example, the
inclusion of an obligation for Fortis to prepare a prospectus in compliance
with the Belgian and Dutch legal requirements and meeting international
disclosure standards, the provision of customary representations and warranties
by Fortis, the provision of comfort letters from Fortis’s auditors in respect
of any financial statements of Fortis forming part of any prospectus, the
provision of customary opinions and disclosure letters from Fortis’s legal
counsel, the provision of customary indemnities by Fortis in favour of MLI and
any other banks which may be party to that Underwriting Agreement, the
obtaining of irrevocable undertakings and customary conditions.  Fortis and MLI shall ensure that the
termination and force majeure provisions in the Underwriting Agreement are
aligned with any material adverse change provisions in the ABN AMRO Offer, and
agree that should any inconsistency between such provisions subsist, the terms
of the ABN AMRO Offer shall  prevail.


In addition,
the parties agree that the Underwriting Agreement will, if necessary, contain
provisions to ensure that a Change of Control (as defined in paragraph 19
below) does not occur or a breach of the relevant legal or regulatory
restrictions relating to a Change of Control does not occur.


For the
avoidance of doubt, the term “customary” when used in this paragraph 10 shall
mean customary (a) for rights issues involving an international distribution of



 


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securities,
including into the Benelux and the United States, (b) at the time the relevant
Underwriting Agreement is entered into, and (c) for global investment banks of
international repute.


(b)                                 Any termination of the Underwriting
Agreement shall be without prejudice to MLI’s undertaking to underwrite an
equity offering by Fortis to raise an amount not exceeding EUR17,000,000,000
pursuant to paragraph 2.  In the event of
any such termination, Fortis and MLI undertake and agree to negotiate
reasonably and in good faith the terms and conditions of a new Underwriting
Agreement on the basis set out in paragraph 10(a).


11.           If Fortis reasonably believes that
MLI:


(a)                                  is not acting reasonably and in good faith
or in accordance with paragraph 9 above in relation to the setting of the issue
price of the New Fortis Shares proposed to be issued in connection with the
Rights Issue; and/or


(b)                                 is not negotiating reasonably and in good
faith the terms and conditions of the Underwriting Agreement in accordance with
paragraph 10 above,


Fortis will
notify MLI in writing of its belief and, if within 48 hours after receipt
thereof by MLI, there has not been reasonable and good faith action taken by
MLI to agree an issue price for the New Fortis Shares that is more acceptable
to Fortis, Fortis may then seek to agree a higher issue price (the Third Party Issue Price)
and/or terms and conditions more favourable than those being offered by MLI
(the Third Party Terms),
with a third party or third parties.  If
Fortis is successful, it will notify MLI of that Third Party Issue Price and/or
those Third Party Terms. If, within 48 hours from receipt of such notice, MLI
has not confirmed in writing its agreement to manage and underwrite the Rights
Issue at that Third Party Issue Price and/or to enter into the Underwriting
Agreement on terms no less favourable to Fortis than the Third Party Terms,
then Fortis’s undertakings contained in paragraphs 3(a) and (b) shall cease to
apply and Fortis and MLI will cease to have any obligations under this letter.


12.           In consideration of MLI entering into
this letter and the letter of even date herewith (the Side  Letter), Fortis
agrees to pay to MLI certain fees as more particularly set out in the Side
Letter.


13.           In addition to the fees payable
pursuant to paragraph 12 above, Fortis agrees to pay (or procure that the same
is paid) to MLI certain commissions as more particularly set out in the
Underwriting Agreement (reflecting the terms of the Side Letter).


14.           Fortis acknowledges and agrees that
(a) MLI may arrange for the offer of New Fortis Shares pursuant to the Rights
Issue in the United States to persons reasonably believed to be qualified
institutional buyers (within the meaning of Rule 144A (Rule 144A) under the
U.S. Securities Act of 1933, as amended (the Securities Act)) in reliance on the
exemption from the registration requirements of the Securities Act provided by
Rule 144A or another exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act, and (b) New Fortis Shares
offered outside the United States pursuant to the Rights Issue will be offered
in reliance on Regulation S under the Securities Act.


15.           Unless otherwise specified in this
letter, each obligation of Fortis under this letter is a joint and several
obligation of Fortis SA/NV and Fortis N.V.


 


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16.           No variation of the terms of this
letter shall be effective unless in writing and signed by or on behalf of the
parties.


17.           A person who is not party to this
letter has no rights under the Contracts (Rights of Third Parties) Act 1999.


18.           Without prejudice to MLI’s
obligations to underwrite a Rights Issue, if the allotment, issue or delivery
of New Fortis Shares pursuant to the Underwriting Agreement or the performance
by MLI of its obligations under the Underwriting Agreement would give rise to a
Change of Control, MLI will give written notice to Fortis, and MLI and Fortis
will consult together and take all such steps as are necessary to ensure that a
Change of Control does not occur or that the relevant legal and/or regulatory
restrictions relating to a Change of Control are complied with (or otherwise
not breached).


19.           For the purposes of this letter Change of Control
means any circumstances arising pursuant to which MLI acquires control of, or a
controlling interest or qualified participation in, Fortis SA/NV and/or Fortis
N.V., as such terms are defined under applicable Belgian and Dutch law or by
any analogous provision of foreign law or regulation.


20.           This letter is confidential and is
not to be disclosed by you to nor relied on by any other person, except that
you may disclose a copy to your advisers and to ABN AMRO and its advisers on a
non-reliance basis, on the condition that ABN AMRO agrees to keep the existence
and contents of this letter confidential. If you are asked by the relevant
regulatory authority in the Netherlands and/or in Belgium to disclose this
letter to them, you may do so subject to obtaining MLI’s prior written consent.


21.           This letter may be entered into in
any number of counterparts and by the parties to it on separate counterparts
each of which when so executed and delivered shall be an original, but all
counterparts shall together constitute one and the same instrument.


22.           This letter shall be governed by and
construed in accordance with English law and the parties submit to the
exclusive jurisdiction of the English Courts in relation to matters relating to
this letter.


23.           Any notice in connection with this
letter shall be in writing and shall be validly effected to each of Fortis
SA/NV and Fortis N.V. by notice to Jeaninne Quaetaert, General Counsel, Rue
Royale 20, B-1000 Brussels, and to MLI by notice to H James O’Neil, Merrill
Lynch International, Merrill Lynch Financial Centre, 2 King Edward Street,
London EC1A 1HQ.


24.           Please confirm your agreement with
the terms of this letter by signing, dating and returning the enclosed copy of
this letter to H James O’Neil at MLI (fax no.: + 44 20 7995-0662).


 


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Yours faithfully,


 


 


For and on behalf of


Merrill Lynch International


 


/s/ Andrea Orcel


 


 


Name: Andrea Orcel


Title: Head of Global Markets & Investment Banking


          Europe,
Middle East & Africa


 


 


Accepted and Agreed.


 


 


For and on behalf of


Fortis SA/NV


 


/s/ Jean-Paul Votron                                            /s/
Gilbert Mittler


 


 


Name:

Title:

Date:


 


 


Accepted and Agreed.


For and on behalf of

Fortis N.V.


 


 


/s/ Jean-Paul Votron                                            /s/
Gilbert Mittler


 


 


Name:

Title:

Date


 


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