UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(D)(L) OR 13(E)(L)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOODARAMA SUPERMARKETS, INC.
(NAME OF SUBJECT COMPANY (ISSUER))
SAKER HOLDINGS CORP. (OFFEROR)
JOSEPH J. SAKER (OFFEROR)
RICHARD J. SAKER (OFFEROR)
JOSEPH J. SAKER, JR. (OFFEROR)
THOMAS A. SAKER (OFFEROR)
GLORIA SAKER (OFFEROR)
NADINE SAKER MOCKLER (OFFEROR)
DENISE SAKER MARDER (OFFEROR)
JOSEPH SAKER FAMILY PARTNERSHIP, L.P. (OFFEROR)
RICHARD JAMES SAKER (OFFEROR)
(NAMES OF FILING PERSONS (IDENTIFYING STATUS AS OFFEROR, ISSUER OR
OTHER PERSON))
COMMON STOCK, $1.00 PAR VALUE
(TITLE OF CLASS OF SECURITIES)
344820105
(CUSIP NUMBER OF CLASS OF SECURITIES)
JOHN A. AIELLO
PHILIP D. FORLENZA
GIORDANO HALLERAN AND CIESLA, P.C.
125 HALF MILE ROAD, P.O. BOX 190
RED BANK, NEW JERSEY 07701
(732) 741-3900
(NAME, ADDRESS, AND TELEPHONE NUMBERS OF PERSON AUTHORIZED TO RECEIVE
NOTICES AND COMMUNICATIONS ON BEHALF OF FILING PERSONS)
Calculation of Filing Fee
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Transaction valuation* Amount of filing fee
Not Applicable Not Applicable
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*Set forth the amount on which the filing fee is calculated and state how it was
determined.
[ ] Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount Previously Paid:
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Form or Registration No.:
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Filing Party: Date Filed:
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[X] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
[X] third-party tender offer subject to Rule 14d-l.
[ ] issuer tender offer subject to Rule 13e-4.
[X] going-private transaction subject to Rule 13e-3.
[ ] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results
of the tender offer: [ ]
This Tender Offer Statement on Schedule TO is filed by the Filing Persons above.
Pursuant to General Instruction D to Schedule TO, this Schedule TO relates to
pre-commencement communications by the Filing Persons above.
This communication is provided for informational purposes only and is neither an
offer to purchase nor a solicitation of an offer to sell shares of Foodarama
Supermarkets, Inc. The Filing Persons have NOT commenced the tender offer that
is referred to in this communication. At such time, if ever, as the tender offer
is commenced, the Filing Persons or their affiliate will file with the
Securities and Exchange Commission a Schedule TO and related exhibits (including
an offer to purchase, a letter of transmittal and other related documents).
Shareholders of Foodarama Supermarkets, Inc. are strongly encouraged to read the
Schedule TO and related exhibits when they become available because they will
contain important information about the tender offer and merger. The Schedule TO
and related exhibits will be available without charge at the Securities and
Exchange Commission's website at http://www.sec.gov and will be delivered
without charge to all shareholders of Foodarama Supermarkets, Inc.
Item 12. Exhibits.
Exhibit 99.1 Text of Press Release issued by Foodarama Supermarkets, Inc. on
March 3, 2006.
Exhibit 99.2 Tender Offer and Support Agreement between Saker Holdings Corp.
and Foodarama Supermarkets, Inc. dated as of March 2, 2006.
EXHIBIT INDEX
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EXHIBIT NO. DESCRIPTION
Exhibit 99.1 Text of Press Release issued by Foodarama Supermarkets, Inc. on
March 3, 2006.
Exhibit 99.2 Tender Offer and Support Agreement between Saker Holdings Corp.
and Foodarama Supermarkets, Inc. dated as of March 2, 2006.
Exhibit 99.1
CONTACT: Michael Shapiro
Senior Vice President
Chief Financial Officer
(732) 294-2270
FOR IMMEDIATE RELEASE
FOODARAMA ENTERS AGREEMENT
FOR GOING PRIVATE TRANSACTION.
Freehold, N.J., March 3, 2006 - Foodarama Supermarkets, Inc. (ASE-FSM)
(the "Company" or "Foodarama") today announced that it has entered into a
definitive agreement with respect to the going private transaction previously
proposed by Saker Holdings Corp., a newly formed corporation organized by a
purchaser group consisting of Richard J. Saker, the Company's President and
Chief Executive Officer, Joseph J. Saker, the Company's Chairman of the Board,
and six other members of the family of Joseph J. Saker who are shareholders of
the Company.
Under the terms of the definitive agreement, Saker Holdings Corp. has
agreed to make a cash tender offer to acquire all of the outstanding shares of
Foodarama common stock not already owned by the members of the purchaser group
at a price of $53 per share. The purchaser group currently owns or controls
approximately 51 percent of Foodarama's issued and outstanding common stock.
A Special Committee of the Company's Board of Directors consisting of
three independent directors previously appointed to review the proposed
transaction has recommended that the Company's shareholders accept the offer and
tender their shares to Saker Holdings Corp. after the offer commences. William
Blair & Company, L.L.C., an independent financial advisor engaged to advise the
Special Committee with respect to the transaction, has delivered its opinion to
the Special Committee that the tender offer is fair, from a financial point of
view, to the Company's minority shareholders.
The purchaser group has obtained a commitment for the financing of the
proposed transaction and a refinancing of the Company's existing loans from GMAC
Commercial Finance L.L.C. The proposed transaction is subject to certain
conditions, including, among others, a condition that Saker Holdings Corp. hold
at least 90% of Foodarama's common stock after the closing of the tender offer,
Saker Holdings Corp. closing on the financing, the requisite consent of Wakefern
Food Corporation and a condition that the Foodarama shareholders approve an
agreement and plan of share exchange pursuant to which each outstanding share of
Foodarama common stock would be exchanged for one share of common stock of a
newly formed Delaware corporation, with Foodarama thereby becoming a subsidiary
of that Delaware corporation. The share exchange would be followed by a merger
of the Delaware corporation into Saker Holdings Corp., pursuant to which
shareholders who did not tender shares in the tender offer would receive $53 in
exchange for their shares of the Delaware corporation that they receive in the
share exchange. As a result of the tender offer, the share exchange and the
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Certain information included in this press release and other Company filings
(collectively, the "SEC filings") under the Securities Act of 1933, as amended,
and the Securities Exchange Act of 1934, as amended (as well as information
communicated orally or in writing between the dates of such SEC filings)
contains or may contain forward looking information that is subject to certain
risks, trends, and uncertainties that could cause actual results to differ
materially from expected results.
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merger, Foodarama would become a wholly owned subsidiary of Saker Holdings Corp.
and there would no longer be a public market for Foodarama common stock.
The Company is required to pay Saker Holdings Corp. a termination fee of
$1,500,000 if the Special Committee withdraws its recommendation that
shareholders accept the offer or the Company's Board of Directors approves or
recommends another takeover proposal, or if the Company breaches or terminates
the agreement for any reason other than Saker Holdings Corp.'s breach. The
Company will be required to reimburse Saker Holdings Corp. for certain out of
pocket expenses if the agreement is terminated under certain other
circumstances.
This announcement is for informational purposes only and is neither an
offer to purchase nor a solicitation of an offer to sell securities. The tender
offer for the outstanding shares of Foodarama common stock described in this
announcement has not commenced. At the time the offer is commenced, Saker
Holdings Corp. will file a tender offer statement with the Securities and
Exchange Commission, and Foodarama will file a solicitation and recommendation
statement with respect to the offer. The tender offer statement (including an
offer to purchase, a related letter of transmittal and other offer documents)
and the solicitation/recommendation statement will contain important information
that should be read carefully before any decision is made with respect to the
tender offer. Those materials will be made available to Foodarama's shareholders
at no expense to them. In addition, all of those materials (and all other offer
documents filed with the SEC) will be available at no charge on the SEC's web
site (www.sec.gov) and from Foodarama Supermarkets, Inc.
The Company operates a chain of 26 supermarkets located in Central New
Jersey, as well as two liquor stores and one garden center, all licensed as
ShopRite. The Company also operates a central food processing facility to supply
its stores with certain meat products, various prepared salads, prepared foods
and other items, and a central baking facility which supplies its stores with
bakery products. The Company is a member of Wakefern Food Corporation, the
largest retailer-owned food cooperative warehouse in the United States and owner
of the ShopRite name.
This press release includes forward-looking statements within the meaning
of federal securities laws that are subject to risks and uncertainties,
including the inability to satisfy the conditions to any proposed transaction,
general economic conditions and other factors that may be identified in filings
made with the SEC by the Company or the purchaser group.
###
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Certain information included in this press release and other Company filings
(collectively, the "SEC filings") under the Securities Act of 1933, as amended,
and the Securities Exchange Act of 1934, as amended (as well as information
communicated orally or in writing between the dates of such SEC filings)
contains or may contain forward looking information that is subject to certain
risks, trends, and uncertainties that could cause actual results to differ
materially from expected results.
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Exhibit 99.2
Tender Offer and Support Agreement
This Tender Offer and Support Agreement, dated as of this 2nd day of
March, 2006 (this "Agreement"), by and between Foodarama Supermarkets, Inc., a
New Jersey corporation (the "Company"), and Saker Holdings, Corp., a Delaware
corporation ("Purchaser").
WHEREAS, Purchaser has submitted to the Board of Directors of the Company
(the "Company Board") a proposal to acquire all of the outstanding shares of the
Company's common stock not owned by the shareholders of Purchaser (the "Shares")
which contemplates that Purchaser will make a tender offer for such Shares (the
"Offer") at a price of Fifty Three Dollars ($53) per share (the "Offer Price")
which shall be conditioned upon, among other things, the approval by the
Company's shareholders of an agreement and plan of share exchange (the
"Agreement and Plan of Share Exchange") pursuant to which each outstanding share
of the Company's common stock ("Company Common Stock") would be exchanged for
one share of common stock of a Delaware corporation (the "Delaware Corporation")
which would be initially organized as a wholly owned subsidiary of the Company
(the "Share Exchange");
WHEREAS, the Special Committee of the Company Board created to consider,
negotiate and make recommendations with respect to the Offer (the "Special
Committee") has advised Purchaser that it will recommend to the shareholders of
the Company that they (i) accept the Offer and tender their Shares in the Offer
and (ii) vote in favor of the Agreement and Plan of Share Exchange
(collectively, the "Recommendations");
WHEREAS, in reliance upon the Recommendations, Purchaser proposes to
proceed with the Offer and will incur significant fees and expenses in
connection therewith;
WHEREAS, if each of the Offer and Share Exchange are completed, Purchaser
will merge the Delaware Corporation with and into Purchaser in a short-form
merger transaction in which the shareholders of the Delaware Corporation (other
than Purchaser) will receive a cash payment for each of their shares of the
Delaware Corporation which would be equal to the per Share price paid for Shares
pursuant to the Offer (the "Merger");
WHEREAS, Purchaser and the Special Committee believe that the Offer will
provide shareholders of the Company with an opportunity to liquefy their Shares
and receive a substantial economic benefit which would not exist in the absence
of the Offer and, therefore, it is in the best interests of the Company to take
such actions as may be necessary to facilitate such Offer, including agreeing to
pay a termination fee if the Special Committee withdraws or modifies the
Recommendations;
WHEREAS, Purchaser and the Company wish to make certain representations,
warranties, covenants and agreements in connection with the Offer and the Share
Exchange and also to prescribe various conditions to the Offer and the Share
Exchange;
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NOW, THEREFORE, in consideration of the mutual covenants and premises set
forth herein and other valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms shall
have the following meanings:
"Business Day" means any day besides a Saturday, Sunday or federal holiday
of the United States.
"Financing Condition" means that Purchaser shall have received the
proceeds contemplated by the GMAC Letter.
"GMAC Letter" means the commitment letter dated as of November 23, 2006
issued by GMAC Commercial Finance LLC to Purchaser.
"Governmental Entity" means any United States federal, state, local or any
foreign government, governmental, regulatory or administrative authority,
board, bureau, department, instrumentality, agency, commission, or
quasi-governmental unit, or any court, tribunal or judicial or arbitral
body.
"Independent Committee" means a committee of the Company Board (which may
be the Special Committee) consisting solely of directors who are members
of the Special Committee.
"Long-Form Merger" means a merger, following the completion of the Share
Exchange and either a Tender Shortfall or the withdrawal or termination of
the Offer by Purchaser, pursuant to which the Delaware Corporation would
be merged with and into Purchaser and which would result in the
shareholders of the Delaware Corporation, other than Purchaser, receiving
an aggregate cash payment with respect to their shares of the Delaware
Corporation which is not less than the aggregate cash consideration they
would have received if their Shares were acquired at the Offer Price
pursuant to the Offer.
"Material Adverse Effect" means any one or more events, changes, effects
or developments that, individually or in the aggregate, have had a
material adverse effect on the business, operations, prospects, assets,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, excluding any effects related to or
resulting from (i) events affecting the United States or global economy or
capital or financial markets generally, (ii) changes in conditions in the
supermarket industry, (iii) changes in laws or in the authoritative
interpretations thereof or in regulatory guidance related thereto, (iv)
earthquakes or similar catastrophes, or acts of war, sabotage, terrorism,
military action or any escalation or worsening thereof, or (v) this
Agreement and the other agreements contemplated hereby, the announcement
thereof, or the transactions contemplated thereby, except (with respect to
the matters referred to in (i) through (iv) above) to the extent that such
matters have a disproportionate effect on the Company relative to its
competitors in the supermarket industry.
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"Majority Tender Condition" means that there shall have been validly
tendered and not withdrawn prior to the expiration of the Offer at least a
majority of the outstanding shares that are not beneficially owned by the
shareholders of Purchaser.
"Minimum Tender Condition" means that there shall have been validly
tendered and not withdrawn prior to the expiration of the Offer that
number of shares of Company Common Stock which, together with that number
of shares of Company Common Stock owned by Purchaser and its shareholders,
would represent more than ninety percent (90%) of the Shares.
"Takeover Proposal" means (i) any proposal for a merger, consolidation,
dissolution, recapitalization or other business combination involving the
Company or (ii) any proposal or offer to acquire in any manner, directly
or indirectly, over 15% of the equity securities or consolidated total
assets of the Company, in each case other than pursuant to the Offer, the
Share Exchange, the Merger or the Long-Form Merger.
"Tender Shortfall" means the consummation of the Offer under circumstances
in which Purchaser owns, after the consummation of the Offer, less than
90% of the Company Common Stock.
2. The Offer and Other Purchaser Actions.
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(a) Commencement and Expiration of the Offer. Subject to the conditions
of this Agreement, as promptly as practicable (but in no event more
than five (5) Business Days) after the date that the Securities and
Exchange Commission (the "SEC") has advised the Company that it has
no further comment on the Proxy Materials (as defined in Section
4(c) below) or Other SEC Filings (as defined in Section 4(c) below),
Purchaser shall commence the Offer within the meaning of the
applicable rules and regulations of the SEC. The initial expiration
date of the Offer shall be at 12:00 midnight Eastern time on the
35th business day following the commencement of the Offer
(determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")).
Notwithstanding any other term of the Offer or this Agreement,
Purchaser shall not be required to accept for payment or, subject to
any applicable rules and regulations of the SEC, including Rule
14e-1(c) under the Exchange Act (relating to Purchaser's obligation
to pay for or return tendered shares of Company Common Stock
promptly after the termination or withdrawal of the Offer), to pay
for any shares of Company Common Stock tendered pursuant to the
Offer unless all of the Tender Offer Conditions set forth in Exhibit
A (the "Tender Offer Conditions") shall have been met. Purchaser
expressly reserves the right to waive any Tender Offer Condition or
any other condition to the Offer or modify the terms of the Offer,
except that, without the consent of the Company, Purchaser shall not
(i) reduce the number of shares of Company Common Stock subject to
the Offer, (ii) reduce the price per share of Company Common Stock
to be paid pursuant to the Offer, (iii) modify the Offer in any
manner adverse to the holders of Shares or add to the Tender Offer
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Conditions, (iv) except as provided in Section 2(b), extend the
Offer, or (v) change the form of consideration payable in the Offer.
(b) Purchaser's Ability to Extend the Offer. Notwithstanding the
provisions of Section 2(a), Purchaser may, without the consent of
the Company, (i) if at the scheduled or any extended expiration date
of the Offer (whether extended pursuant to this clause (b) or
otherwise) any of the conditions to Purchaser's obligation to
purchase shares of Company Common Stock are not satisfied or waived,
extend the Offer beyond the then applicable expiration date thereof
for a time period reasonably necessary to permit such condition to
be satisfied, (ii) extend the Offer for any period required by any
rule, regulation, interpretation or position of the SEC or the staff
thereof applicable to the Offer and (iii) if at the scheduled or any
extended expiration date of the Offer all of the Tender Offer
Conditions have been satisfied or waived, Purchaser may extend the
Offer pursuant to an amendment to the Offer providing for a
"subsequent offering period" not to exceed twenty (20) business
days, to the extent permitted under, and in compliance with, Rule
14d-11 under the Exchange Act. Any such "subsequent offering
period" shall not, unless otherwise consented to in writing by the
Purchaser, extend beyond the Outside Date (as defined in Section
2(c) below)
(c) Company's Ability to Extend the Offer.
(i) In the event that the Minimum Tender Condition has not been
satisfied or waived at the scheduled expiration date of the
Offer, at the request of the Company, Purchaser shall extend
the expiration date of the Offer in such increments as
Purchaser may determine until the earliest to occur of (A) the
satisfaction or waiver of such condition, (B) Purchaser
reasonably determines, after the date that is 90 days from the
date of commencement of the Offer, that such condition to the
Offer is not capable of being satisfied on or prior to June
30, 2006 (the "Outside Date"), (C) the termination of this
Agreement in accordance with its terms and (D) the Outside
Date.
(ii) In the event that a failure to satisfy the Tender Offer
Condition in subsection (f) of Exhibit A shall exist and the
cure period described therein shall not have expired at the
scheduled expiration date of the Offer, at the request of the
Company, Purchaser shall extend the expiration date of the
Offer in such increments as Purchaser may determine, but not
greater than ten (10) days, until the earliest to occur of (A)
the cure of such failure, (B) the expiration of such cure
period, (C) the termination of this Agreement in accordance
with its terms and (D) the Outside Date.
(d) Payment Acceptance. On the terms and subject to the conditions of
the Offer and this Agreement, Purchaser shall accept for payment and
pay for all Shares validly tendered and not withdrawn pursuant to
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the Offer that Purchaser becomes obligated to purchase pursuant to
the Offer promptly after the expiration of the Offer.
(e) Option Treatment. Each Share subject to an option (other than an
option held by a shareholder of Purchaser which shall be cancelled
or assumed by the Purchaser) outstanding immediately prior to the
consummation of the Offer shall be settled in cash by Purchaser at
the time of the consummation of the Offer for an amount equal to the
positive difference between the Offer Price and the per Share
exercise price, or, if the per Share exercise price equals or
exceeds the Offer Price, the outstanding option shall be cancelled
upon the consummation of the Offer.
(f) SEC Filings. On the date of commencement of the Offer, Purchaser
shall file with the SEC a Tender Offer Statement on Schedule TO with
respect to the Offer, which shall contain an offer to purchase and a
related letter of transmittal and summary advertisement (such
Schedule TO and the documents included therein pursuant to which the
Offer will be made, together with any supplements or amendments
thereto, the "Offer Documents"). Each of Purchaser and the Company
shall promptly correct any information provided by it for use in the
Offer Documents if and to the extent that such information shall
have become false or misleading in any material respect, and
Purchaser shall take all steps necessary to amend or supplement the
Offer Documents and to cause the Offer Documents as so amended or
supplemented to be filed with the SEC and to be disseminated to the
Company's shareholders, in each case as and to the extent required
by applicable Federal securities law. Purchaser shall give the
Company and its counsel a reasonable opportunity to review and
comment on the Offer Documents prior to their being filed with the
SEC or disseminated to the shareholders of the Company. Purchaser
shall provide the Company and its counsel in writing with any
comments Purchaser or its counsel may receive from the SEC or its
staff with respect to the Offer Documents promptly after the
receipt of such comments and shall provide the Company and its
counsel with a reasonable opportunity to participate in the
response of Purchaser to such comments.
(g) The Merger. If each of the Offer and Share Exchange is consummated
under circumstances where the Minimum Tender Condition has been
satisfied, Purchaser shall cause the Merger to be consummated in
accordance with the Delaware General Corporation Law.
3. Company Actions.
(a) The Company hereby approves of and consents to the Offer, the Share
Exchange and the other transactions contemplated by this Agreement
(collectively, the "Transactions").
(b) On the date the Offer Documents are filed with the SEC, the Company
shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as
5
amended and supplemented from time to time, the "Schedule 14D-9"),
describing the recommendations referred to in Section 5(d), and
shall mail the Schedule 14D-9 to the holders of Company Common
Stock. Each of the Company and Purchaser shall promptly correct
any information provided by it for use in the Schedule 14D-9 if and
to the extent that such information shall have become false or
misleading in any material respect, and the Company shall take all
steps necessary to amend or supplement the Schedule 14D-9 and to
cause the Schedule 14D-9 as so amended or supplemented to be filed
with the SEC and disseminated to the Company's shareholders, in
each case as and to the extent required by applicable Federal
securities laws. The Company shall provide Purchaser and its
counsel in writing with any comments the Company or its counsel may
receive from the SEC or its staff with respect to the Schedule
14D-9 promptly after the receipt of such comments.
(c) In connection with the Offer, the Company shall cause its transfer
agent to promptly furnish Purchaser with mailing labels containing
the names and addresses of the record holders of Company Common
Stock as of a recent date and of those persons becoming record
holders subsequent to such date, together with copies of all lists
of shareholders, security position listings and computer files and
all other information as Purchaser may reasonably request in the
Company's possession or control regarding the beneficial owners of
Company Common Stock, and shall furnish to Purchaser such
information and assistance (including updated lists of
shareholders, security position listings and computer files) as
Purchaser may reasonably request in communicating the Offer to the
Company's shareholders. Subject to the requirements of applicable
law, and except for such steps as are necessary to disseminate the
Offer Documents and any other documents necessary to consummate the
Transactions, Purchaser shall hold in confidence the information
contained in any such labels, listings and files, shall use such
information only for the purpose of communicating the Offer and
disseminating any other documents necessary to consummate the Offer
and the Share Exchange and the other Transactions and, if this
Agreement shall be terminated, shall, upon request, deliver to the
Company all copies of such information then in its possession.
4. Share Exchange Proposal.
(a) Contemporaneous with the execution of this Agreement, the Company
shall enter into, and cause the Delaware Company to enter into, the
Agreement and Plan of Share Exchange in substantially the form
annexed hereto as Exhibit B.
(b) The Company shall, as soon as practicable following the date of
this Agreement, give notice of, convene and hold a meeting of its
shareholders (the "Shareholders' Meeting") for the purpose of
seeking the approval of the Company's shareholders of the Agreement
and Plan of Share Exchange (the "Company Shareholder Approval").
The Company shall, through the Special Committee, recommend to its
shareholders that they approve the Agreement and Plan of Share
Exchange. Without limiting the generality of the foregoing, the
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Company agrees that its obligations pursuant to the first sentence
of this Section 4(b) shall not be affected by the commencement,
public proposal, public disclosure or communication to the Company
of any Takeover Proposal.
(c) The Company shall, as soon as practicable following the execution
of this Agreement, prepare and file with the SEC proxy materials
with respect to the Shareholders' Meeting (the "Proxy Materials")
or such other filings as may be required to be filed with the SEC
by applicable law (the "Other SEC Filings"), and the Company shall
use its best efforts to respond as promptly as practicable to any
comments of the SEC with respect thereto. The Company shall notify
Purchaser promptly of the receipt of any comments from the SEC or
its staff and of any request by the SEC or its staff for amendments
or supplements to the Proxy Materials or Other SEC Filings or for
any additional information and shall supply Purchaser with copies
of all correspondence between the Company or any of its
representatives, on the one hand, and the SEC or its staff, on the
other hand, with respect to the Proxy Materials or Other SEC
Filings. If at any time prior to the receipt of the approval of
the Agreement and Plan of Share Exchange by the Company's
shareholders, there shall occur any event that should be set forth
in an amendment or supplement to the Proxy Materials or Other SEC
Filings, the Company shall promptly prepare and mail to its
shareholders such an amendment or supplement. The Company shall
not mail any Proxy Statement or Other SEC Filings, or any amendment
or supplement thereto, to which Purchaser reasonably objects.
(d) In the event that Company Shareholder Approval is obtained and
Purchaser consummates the Offer, the Company shall as soon as
reasonably practicable (but in no event more than two (2) Business
Days) after the consummation of the Offer take such steps as may be
necessary to complete the Share Exchange.
(e) In the event that Company Shareholder Approval is obtained but this
Agreement shall have been terminated prior to the consummation of
the Offer, the Company's Board of Directors shall determine by
resolution within thirty (30) days after the termination of this
Agreement whether to complete the Share Exchange or terminate the
Agreement and Plan of Share Exchange.
5. Representations of Company. The Company hereby represents and warrants
to Purchaser that:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of New Jersey. The
Delaware Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware.
(b) The Company has all requisite corporate power and authority to
execute and deliver this Agreement and, subject to the approval of
its shareholders with respect to the Share Exchange, to consummate
the Transactions. The execution and delivery by the Company of this
Agreement and the consummation by the Company of the Transactions
have been duly authorized by all necessary corporate action on the
part of the Company, subject, in the case of the Share Exchange, to
receipt of the approval of the Company's shareholders.
(c) The Company has duly executed and delivered this Agreement to
Purchaser and this Agreement constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its
terms, except to the extent that enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws of general applicability
relating to or affecting the enforcement of creditors' rights and
by the effect of the principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
(d) The Company Board, at a meeting duly called and held, and upon
recommendation of the Special Committee, adopted resolutions (i)
approving this Agreement, the Offer, the Share Exchange and the
other Transactions, (ii) determining that the terms of the Offer
and the Merger are fair, from a financial point of view, to the
Company and its shareholders and that the Share Exchange and Merger
are advisable and (iii) recommending that the shareholders of the
Company accept the Offer and tender their shares of Common Stock
pursuant to the Offer. No further corporate action is required by
the Company Board in order for the Company to approve this
Agreement or the Transactions contemplated hereby. The Company has
been advised by each of the members of the Special Committee that
as of the date of this Agreement, each such person intends to
tender all shares of Company Common Stock owned by such person
pursuant to the Offer.
(e) The Company has received from each member of the Special Committee
written resignations from their respective positions as directors
of the Company and of the Delaware Corporation, with each
resignation conditioned upon and to take effect only upon the
occurrence of consummation of the Offer under circumstances in
which the Minimum Tender Condition has been met and not waived.
6. Representations of Purchaser. Purchaser hereby represents and warrants
to the Company that:
(a) Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) Purchaser has all requisite corporate power and authority to
execute and deliver this Agreement and to consummate the Offer and
the other Transactions to which it is a party. The execution and
delivery by Purchaser of this Agreement and the consummation by
Purchaser of the Transactions to which Purchaser is a party have
been duly authorized by all necessary corporate actions on the part
of Purchaser.
8
(c) Purchaser has duly executed and delivered this Agreement and this
Agreement constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, except to the
extent that enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws of general applicability relating to or
affecting the enforcement of creditors' rights and by the effect of
the principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
(d) Set forth on Exhibit C hereto is a list of the officers and
directors of Purchaser and the identity of all shareholders of
Purchaser. Except for shares of capital stock of Purchaser owned
by the shareholders identified on Exhibit C and options
contemplated to be issued to certain shareholders of Purchaser,
there are outstanding (i) no shares of capital stock or other
voting securities of Purchaser, (ii) no securities of Purchaser
convertible into or exchangeable for capital stock or other voting
securities of Purchaser and (iii) no options, warrants or other
rights to acquire from Purchaser, and no obligations of Purchaser
to issue, any capital stock, voting securities or securities
convertible into or exchangeable for capital stock or other voting
securities of Purchaser, except pursuant to the Exchange Agreement
dated as of March 2, 2006 (the "Exchange Agreement") by and among
Purchaser and each of Joseph J.Saker, Richard J. Saker, Joseph J.
Saker, Jr., Thomas A. Saker, Gloria Saker, Nadine Saker Mockler,
Denise Saker Marder, Richard James Saker, the Saker Family
Partnership, L.P. and the Richard James Saker Trust,
f/b/o Richard James Saker (each a "Member of the Purchaser Group"),
which has previously been delivered to counsel for the Special
Committee.
(e) Except for its organizational activities and activities related to
the negotiation, delivery and consummation of this Agreement,
including activities related to the GMAC Letter and the Financing
Condition, Purchaser has not engaged in any substantive business
activities, incurred any liabilities or made any commitments other
than in connection with the transactions contemplated by this
Agreement.
(f) Purchaser has received, and delivered to counsel for the Special
Committee copies of, binding commitments from its shareholders (the
"Stock Commitments") to contribute to Purchaser at or before the
closing of the Offer sufficient shares of Company Common Stock such
that, before any Shares are accepted in the Offer Purchaser will
own no less than 424,890 shares of Company Common Stock, which
shall constitute no less than 43% of the then outstanding shares of
Company Common Stock. Such shareholders own sufficient shares of
Company Common Stock free and clear of liens to meet the Stock
Commitments, except, in the case of Shares owned by Richard Saker,
for certain liens securing margin loans which will be released
immediately prior to the consummation of the Offer through the
repayment of such margin loans in full with proceeds of a loan made
by Purchaser.
7. Reasonable Efforts. Upon the terms and subject to the conditions set
forth in this Agreement, each of the parties hereto shall use all
9
reasonable efforts to take, or cause to be taken, all reasonable
actions, and to do, or cause to be done, and to assist and
cooperate with the other parties in doing, all things
reasonably necessary, proper or advisable to consummate and
make effective, in the most expeditious manner practicable,
the Offer and the Share Exchange, including (i) the obtaining of
all necessary actions or nonactions, waivers, consents and
approvals from Governmental Entities and the making of all
necessary registrations and filings (including filings with
Governmental Entities, if any) and the taking of all reasonable
steps as may be necessary to obtain an approval or waiver from, or
to avoid an action or proceeding by, any Governmental Entity,
(ii) the obtaining of all necessary consents, approvals or
waivers from third parties, including, without limitation, the
consent of Wakefern Food Corporation to the Transactions, (iii)
the defending of any lawsuits or other legal proceedings,
whether judicial or administrative, challenging this Agreement
or the consummation of the Transactions, including, when
reasonable, seeking to have any judgment, order, temporary
restraining order, temporary or permanent injunction, ruling or
decree or other court action (an "Order") entered by any
Governmental Entity vacated or reversed and (iv) the execution and
delivery of any additional instruments necessary to consummate the
Transactions and to fully carry out the purposes of this Agreement.
Nothing in this Agreement shall be deemed to require any party to
waive any substantial rights or agree to any substantial limitation
on its operations or to dispose of any significant asset or
collection of assets.
8. Termination. This Agreement may be terminated at any time prior to the
consummation of the Offer, whether before or after receipt of Company
Stockholder Approval:
(a) by mutual written consent of Purchaser and the Company;
(b) by the Company:
(i) if Purchaser fails to accept for payment and pay for all
Shares validly tendered and not withdrawn pursuant to the
Offer once Purchaser becomes obligated to purchase such
Shares pursuant to, and on the terms and subject to the
conditions of the Offer and this Agreement, which failure
cannot be or has not been cured within ten (10) days after
the giving of written notice to Purchaser of such failure,
and such failure does not result from one or more of the
following causes: (A) the Company's failure to fulfill any of
its obligations under this Agreement or (B) facts or
circumstances that constitute a breach of any representation
or warranty under this Agreement by the Company; or
(ii) if the Purchaser shall not have provided documentation to the
Special Committee on or before March 17, 2006 which provides
reasonable assurance that (x) at least 466,712 Shares have
been or shall be contributed to Purchaser as required by the
terms of the Exchange Agreement and (y) any Shares owned by
Members of the Purchaser Group that are not contributed to
the Purchaser pursuant to the Exchange Agreement will be
tendered to Purchaser pursuant to the Offer.
(iii) for any other reason.
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(c) by Purchaser:
(i) following the Outside Date if the Offer has not been
consummated, provided, however, that the right to terminate
this Agreement pursuant to this clause (i) shall not be
available to Purchaser if (A) the failure to consummate the
Offer was the result of a willful and material breach of
this Agreement by Purchaser or (B) the Financing Condition
has not been met by the Outside Date; or
(ii) if any Governmental Entity issues an Order permanently
enjoining, restraining or otherwise prohibiting the Share
Exchange or the acceptance for payment of, or payment for,
shares of Company Common Stock pursuant to the Offer and
such Order shall have become final and nonappealable; or
(iii) if as the result of the failure of any of the Tender Offer
Conditions other than the Financing Condition, the Offer
shall have terminated or expired in accordance with its
terms without Purchaser having accepted shares of Company
Common Stock for payment pursuant to the Offer; provided,
however, that the right to terminate this Agreement pursuant
to this clause (iii) shall not be available to Purchaser if
its failure to fulfill any of its obligations under this
Agreement results in the failure of any such condition or if
the failure of such condition results from facts or
circumstances that constitute a willful breach of any
representation or warranty under this Agreement by Purchaser;
or
(iv) if the Company breaches or fails to perform in any material
respect any of its representations, warranties, or covenants
contained in this Agreement which breach or failure to
perform (A) would give rise to the failure of a condition set
forth in Exhibit A, and (B) cannot be or has not been cured
within ten (10) days after the giving of written notice to
the Company of such breach; provided, however, that the right
to terminate this Agreement pursuant to this clause (iv)
shall not be available to Purchaser if Purchaser is in
material breach of any representation, warranty or covenant
contained in this Agreement; or
(v) if prior to the first acceptance of shares of Company Common
Stock for payment pursuant to the Offer the Company Board or
an Independent Committee withdraws or modifies in a manner
adverse to Purchaser, or publicly proposes to withdraw or
modify in a manner adverse to Purchaser, its approval or
recommendation of this Agreement, the Offer or the Share
Exchange, fails to recommend to the Company's shareholders
that they accept the Offer and give the Company Shareholder
Approval or publicly approves or recommends, or publicly
proposes to approve or recommend, any Company Takeover
Proposal; or
11
(vi) if the Company Board or an Independent Committee authorized
to evaluate a tender offer proposed by a party other than
Purchaser, expresses no opinion, remains neutral or is
unable to take a position with respect to such tender offer;
or
(vii) if a Material Adverse Effect has occurred and is continuing;
(viii) if there shall have been instituted or pending any
shareholder derivative litigation or shareholder class action
litigation against the Company or the Purchaser or any of
their respective subsidiaries, affiliates, officers or
directors or if there shall be pending any action, suit or
proceeding against the Company or the Purchaser or any of
their respective subsidiaries, affiliates, officers or
directors challenging or seeking damages or other relief in
connection with the acquisition of Shares by Purchaser or any
of the transactions related thereto or seeking to restrain or
prohibit the making or consummation of the Offer or Share
Exchange;
(ix) if the Financing Condition is not met by the Outside Date and
the failure of such condition does not result from either (A)
the existence of a material adverse change in the business,
operations, assets, properties, liabilities, profits,
prospects or financial position of the Company, (B) the
Company's failure to fulfill any of its obligations under this
Agreement or from facts or circumstances that constitute a
breach of any representation or warranty under this Agreement
by the Company, (C) the Company's failure to have received and
accepted a fairness opinion from a financial advisor
reasonably acceptable to GMAC endorsing the fairness to the
Company's shareholders of the terms of the Offer, or (D) the
failure to satisfy the Minimum Tender Condition; or
(x) if the Financing Condition is not met by the Outside Date and
the failure of such condition results from one or more of the
reasons set forth in clauses (A) thru (D) of Section 8(c)(ix)
above.
9. Effect of Termination. In the event of termination of this Agreement by
either the Company or Purchaser as provided in Section 8, this Agreement
shall forthwith become void and have no effect. Such termination shall be
without any liability or obligation on the part of Purchaser or the
Company, other than this Section 9, Section 12, Section 13 and Sections 15
through 24, which provisions shall survive such termination, and except to
the extent that such termination results from the willful and material
breach by a party of any representation, warranty or covenant set forth in
this Agreement.
10. Extension; Waiver. The parties may at any time (i) extend the time for
the performance of any of the obligations or other acts of the other
parties, (ii) waive any inaccuracies in the representations and warranties
contained in this Agreement or in any document delivered pursuant to this
Agreement or (iii) waive compliance with any of the agreements or
conditions contained in this Agreement. Any agreement on the part of a
12
party to any such extension or waiver shall be valid only if set forth
in an instrument in writing signed on behalf of such party. The failure
of any party to this Agreement to assert any of its rights under this
Agreement or otherwise shall not constitute a waiver of such rights.
11. Procedure for Termination, Amendment, Extension or Waiver. In order to be
effective, any action or agreement to terminate, amend, extend or waive
this Agreement or any provisions hereof shall require, in the case of
Purchaser, action by its Board of Directors or the duly authorized
designee of its Board of Directors, and in the case of the Company, action
by the Company Board subsequent to and in accordance with a
recommendation by the Special Committee in favor of such action. All
corporate action taken to implement the Special Committee's recommendation
of an action or agreement to terminate, amend, extend or waive this
Agreement or any provisions hereof (including without limitation the
subsequent approval or ratification of such action or agreement by the
Company Board or the execution and delivery of documentation evidencing
such action or agreement by an officer or officers of the Company) shall
be deemed to have occurred at the time the Special Committee notified
Purchaser that the Special Committee was recommending such action.
12. Reimbursement of Ticking Fee.
(a) In the event that this Agreement is terminated pursuant to Section
8(b) or 8(c) for any reason (other than a termination by the Company
pursuant to Section 8(b)(i) or 8(b)(ii) or by the Purchaser pursuant
to Section 8(c)(ix)) the Company will reimburse Purchaser for the
cost of (a) any "ticking fee" payable to GMAC Commercial Finance LLC
pursuant to the GMAC Letter and (b) all out-of-pocket fees and
expenses payable by Purchaser to its legal counsel and its outside
financial advisor for the period from December 1, 2004 through and
including the date of termination (collectively with the "ticking
fee," the "Out-of-Pocket Expenses"); provided, that all amounts
previously paid by the Company pursuant to the letter agreement
between the parties hereto dated February 6, 2006 and countersigned
as of February 10, 2006 (the "February Letter Agreement") shall be
credited against amounts otherwise owing under this Section 12(a);
and provided, further, that all amounts paid by or credited to
the Company pursuant to this Section 12(a) shall be credited against
any obligation that the Company may have to pay the Termination Fee
pursuant to Section 13 below. If this Agreement is terminated by
mutual consent pursuant to Section 8(a) for any reason, the parties
shall, by mutual consent, determine whether and to what extent the
Company will reimburse Purchaser for its Out-of-Pocket Expenses.
(b) In the event that this Agreement is terminated by Purchaser pursuant
to Section 8(c)(viii), the Company will reimburse Purchaser for the
Applicable Percentage of all Out-of-Pocket Expenses; provided that
all amounts previously paid by the Company pursuant to the February
Letter Agreement shall be credited against amounts otherwise owing
under this Section 12(b); and provided further that all amounts paid
by or credited to the Company pursuant to this Section 12(b) shall
be credited against any obligation that the Company may have to pay
the Termination Fee pursuant to Section 13 below. The "Applicable
13
Percentage" shall be one hundred percent (100%) if the event giving
rise to the termination pursuant to Section 8(c)(viii) is one which
had, or at the time of termination was reasonably likely to result
in, a Material Adverse Effect. The "Applicable Percentage" shall be
eighty percent (80%) if the event giving rise to the termination
pursuant to Section 8(c)(viii) is one which did not have, and at
the time of termination was not reasonably likely to result in, a
Material Adverse Effect; provided, however, that if the event giving
rise to the termination pursuant to Section 8(c)(viii) did not, and
at the time of termination was not reasonably likely to, have a
significant economic impact on Purchaser or on the ability of
Purchaser to consummate the Offer, then the "Applicable Percentage"
shall be zero.
13. Termination Fee. The Company shall pay to Purchaser a fee (the
"Termination Fee") of One Million Five Hundred Thousand Dollars
($1,500,000) if:
(a) this Agreement is terminated by the Company other than pursuant to
Section 8(b)(i); or
(b) this Agreement is terminated by Purchaser pursuant to Section 8(c)
(iv), (v) or (vi).
14. Further Assurance. From time to time, at another party's request and
without additional consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may
be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this
Agreement.
15. Notice. All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if
delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(a) If to Purchaser:
Saker Holdings Corp.
c/o Giordano Halleran & Ciesla, P.C.
125 Half Mile Road
Red Bank, New Jersey 07701
Attention: John A. Aiello, Esq.
(b) If to the Company:
Foodarama Supermarkets, Inc.
c/o Special Committee of the Board of Directors
c/o Pitney Hardin LLP
200 Campus Drive
Florham Park, NJ 07932
Attention: Michael W. Zelenty, Esq.
14
16. Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
17. Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in
any manner adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so
as to effect the original intent of the parties as closely as possible
in an acceptable manner to the end that transactions contemplated hereby
are fulfilled to the maximum extent possible.
18. Entire Agreement; No Third-Party Beneficiaries. This Agreement constitutes
the entire agreement among the parties hereto and supersedes all other
prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter of this Agreement, including
without limitation the February Letter Agreement, and this Agreement is
not intended to confer upon any person, other than the parties hereto, any
rights or remedies.
19. Assignment. Neither this Agreement nor any of the rights, interests or
obligations under this Agreement may be assigned or delegated, in whole or
in part by any of the parties, other than by operation of law; provided,
however, that Purchaser may assign, in its sole discretion, its rights and
obligations hereunder to any direct or indirect wholly-owned subsidiary of
Purchaser, but no such assignment shall relieve Purchaser of its
obligations hereunder if such assignee does not perform such obligations.
20. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New Jersey, regardless of the
laws that might otherwise govern under applicable principles of conflicts
of laws thereof. Each of the parties hereto (i) hereby irrevocably and
unconditionally consents to submit to the personal jurisdiction of the
courts of the State of New Jersey and of the United States of America
located in the State of New Jersey in the event any dispute arises out of
this Agreement or any of the transactions contemplated by this Agreement,
(ii) shall not object to or attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court,
and (iii) shall not bring any action relating to this Agreement or any of
the transactions contemplated by this Agreement in any other court.
21. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
22. Amendment. This Agreement may not be amended except by an instrument in
writing signed by the parties hereto.
15
23. Waiver. Any party hereto may (i) extend the time for the performance of
any of the obligations or other acts of the other party hereto, (ii) waive
any inaccuracies in the representations and warranties of the other party
hereto contained herein or in any document delivered pursuant hereto and
(iii) waive compliance by the other party hereto with any of their
agreements or conditions contained herein. Any agreement on the part of a
party hereto to any such extension or waiver shall be valid only as
against such party and only if set forth in an instrument in writing
signed by such party. The failure of any party hereto to assert any of
its rights under this Agreement or otherwise shall not constitute a waiver
of those rights.
24. Counterparts. This Agreement may be executed in one or more counterparts,
all of which shall be considered one and the same instrument and shall
become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
FOODARAMA SUPERMARKETS, INC.
By:______________________________
Name: Michael Shapiro
Title: Senior Vice President, Treasurer and
Chief Financial Officer
SAKER HOLDINGS CORP.
By:______________________________
Name: Richard J. Saker
Title: President
EXHIBIT A
TENDER OFFER CONDITIONS
Notwithstanding any other term of the Offer or this Agreement, Purchaser
shall not be required to accept for payment or, subject to any applicable rules
and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act
(relating to Purchaser's obligation to pay for or return tendered shares of
Company Common Stock promptly after the termination or withdrawal of the Offer),
to pay for any shares of Company Common Stock tendered pursuant to the Offer if
(i) the Majority Tender Condition shall not have been met, (ii) the Minimum
Tender Condition shall not have been met, (iii) the Company's Shareholders shall
not have approved the Agreement and Plan of Share Exchange, (iv) the Financing
Condition shall not have been met, or (v) at any time prior to the expiration of
the Offer, any of the following events shall occur and be continuing and shall
not have resulted from the breach by Purchaser of any of its obligations under
this Agreement:
(a) there shall be in effect any Order of any Governmental Entity of
competent jurisdiction: (i) which makes illegal, prevents, makes
materially more expensive (without taking into account any legal fees
or expenses incurred in connection with the Order or the Offer),
restrains or prohibits the Offer, the acceptance for payment of, or
payment for, any Shares by Purchaser or any affiliate of Purchaser, or
the consummation of the Share Exchange or Merger; (ii) which prohibits
the ownership or operation by Purchaser, the Company or any of its
subsidiaries of all or a material portion of the business or assets
of Purchaser, the Company or any of its subsidiaries or which compels
Purchaser, the Company or any of its subsidiaries to dispose of or hold
separate all or any material portion of the business or assets of
Purchaser, the Company or any of its subsidiaries; (iii) which imposes
material limitations on the ability of Purchaser, or any affiliate of
Purchaser to exercise full rights of ownership of any Shares,
including, without limitation, the right to vote any Shares acquired by
Purchaser pursuant to the Offer or otherwise on all matters presented
to the Company's shareholders, including, without limitation, the
approval and adoption of the Agreement and Plan of Share Exchange; (iv)
which requires divestiture by Purchaser or any affiliate of Purchaser
of any Shares; or (v) which otherwise has a Material Adverse Effect;
(b) there shall be in effect any law, statute, rule, regulation,
judgment, order or legislation applicable to (i) Purchaser, the
Company or any subsidiary or affiliate of Purchaser or the Company
or (ii) any transaction contemplated by the Agreement, which
results, directly or indirectly, in any of the consequences referred
to in clauses (i) through (v) of paragraph (a) above;
(c) there shall have occurred a Material Adverse Effect;
(d) the Company Board or the Special Committee shall have (i) withdrawn or
modified in a manner adverse to Purchaser, or publicly proposed to
withdraw or modify in a manner adverse to Purchaser, its approval or
recommendation of this Agreement, the Offer or the Share Exchange, (ii)
failed to recommend to the Company's shareholders that they accept the
Offer, (iii) approved or recommended, or publicly proposed to approve
or recommend, any Takeover Proposal, (iv) caused the Company to enter
into any agreement relating to a Takeover Proposal or (v)resolved to do
any of the foregoing;
18
(e) any of the representations and warranties of the Company contained
in the Agreement shall not be true and correct except where the
failure to be so true and correct, individually or in the aggregate,
has not had and would not reasonably be expected to have, a Material
Adverse Effect, and such inaccuracy shall not have been cured;
(f) the Company shall have failed to perform in any material respect any
obligation or to comply in any material respect with any agreement
or covenant of the Company to be performed or complied with by it
under this Agreement, which failure to perform or comply cannot be
or has not been cured within ten days after the giving of written
notice to the Company of such breach;
(g) there shall have been instituted or pending any shareholder derivative
litigation or shareholder class action litigation against the Company
or the Purchaser or any of their respective subsidiaries, affiliates,
officers or directors or there shall be pending any action, suit or
proceeding against the Company or the Purchaser or any of their
respective subsidiaries, affiliates, officers or directors challenging
or seeking damages or other relief in connection with the acquisition
of Shares or any of the transactions related thereto by Purchaser or
seeking to restrain or prohibit the making or consummation of the Offer
or the Share Exchange;
(h) The Company shall have received the consent of Wakefern Food
Corporation to the Transactions:
(i) this Agreement shall have been terminated in accordance with its terms.
which, in the sole and good faith judgment of Purchaser, makes it inadvisable to
proceed with such acceptance for payment or payment.
The foregoing conditions are for the sole benefit of Purchaser and may be
asserted by Purchaser regardless of the circumstances giving rise to such
condition or may be waived by Purchaser in whole or in part at any time and from
time to time in its sole discretion (subject to the terms of this Agreement).
The failure by Purchaser or any other affiliate of Purchaser at any time to
exercise any of the foregoing rights shall not be deemed a waiver of any such
right, the waiver of any such right with respect to particular facts and
circumstances shall not be deemed a waiver with respect to any other facts and
circumstances and each such right shall be deemed an ongoing right that may be
asserted at any time and from time to time.
19